17:0912(120)CA - EEO Commission, Seattle District Office, Seattle, WA and AFGE Local 3230 -- 1985 FLRAdec CA

[ v17 p912 ]
The decision of the Authority follows:

 17 FLRA No. 120
 Charging Party
                                            Case No. 9-CA-20160
                            DECISION AND ORDER
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices alleged in the complaint and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  Thereafter, the Respondent and the General Counsel
 filed exceptions and cross-exceptions, respectively, to the Judge's
 Decision, and the Respondent filed an opposition to the General
 Counsel's cross-exceptions.
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions, and recommended Order as modified below.
    The Judge found that information was requested on February 4, 1982 by
 the Charging Party, hereinafter referred to as the Union, in connection
 with the anticipated filing of a grievance concerning the proposed
 removal of a unit employee for unsatisfactory performance, and that the
 Respondent violated section 7116(a)(1) and (8) of the Statute by its
 failure and refusal to provide this information from February 4, 1982 to
 February 19, 1982.  In view of the voluntary settlement of the
 grievance, the Judge further found that any refusal after February 19,
 1982 was not violative of the Statute.
    Based on the facts found by the Judge, the Authority, in agreement
 with the Judge, finds that whatever "necessary" information had been
 requested by the Union on February 4, within the meaning of section
 7114(b)(4) of the Statute, was rendered moot on February 19 by the
 approval of the employee's disability retirement request and the
 cancellation of his proposed removal for unsatisfactory performance on
 that date.  However, contrary to the Judge, the Authority also finds
 that the Respondent did not refuse to supply the information between
 February 4 and February 19.  Rather, the Authority finds that the
 General Counsel has failed to meet the burden of proving that the
 Respondent failed or refused to comply with section 7114(b)(4) of the
 Statute in the circumstances of this case.  In this regard, the
 Authority notes that the Union's request for information was lengthy;
 that the Respondent never refused to provide information sufficient to
 meet the Union's needs but rather asked, on February 10, /1A/ that the
 Union's request be made reasonable and specific;  that the Respondent
 had, as yet, no grievance against which to consider the Union's request
 for information;  and that on February 12, the day after the grievance
 had been filed, the grievant and the Respondent entered into a
 settlement agreement which resulted in the Respondent's withdrawal of
 the proposed removal action, the subject of the grievance.  In these
 circumstances, the Authority concludes that the Respondent did not
 unlawfully refuse to furnish necessary data to the Union between
 February 4 and February 19, 1982, and that the complaint in Case No.
 9-CA-20160 must be dismissed.
    IT IS ORDERED that the complaint in Case No. 9-CA-20160 be, and it
 hereby is, dismissed in its entirety.  
 Issued, Washington, D.C., May 8, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    Nilda I. Aponte, Esquire
    For the Respondent
    Arthur E. Joyner, Esquire
    For the Charging Party
    Stefanie Arthur, Esquire
    For the General Counsel, FLRA
    Before:  GARVIN LEE OLIVER, Administrative Law Judge
                           Statement of the Case
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region Nine, Federal Labor Relations Authority,
 San Francisco, California against the U.S. Equal Employment Opportunity
 Commission, Seattle District Office, Seattle, Washington (EEOC or
 Respondent), based on a charge filed by the American Federation of
 Government Employees, Local 3230, AFL-CIO (Charging Party or Union).
 The complaint alleged, in substance, that Respondent did engage in, and
 is engaging in, an unfair labor practice in violation of sections
 7116(a)(1) and (8) of the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. 7101 et seq. (the Statute).  The complaint alleged
 that on or about February 10, 1982, Respondent failed to comply with
 sections 7114(b)(4) by refusing to provide certain items of information
 requested by the Union.  These items were allegedly reasonably available
 and necessary for full and proper discussion of the grievance of a
 bargaining unit employee.
    Respondent's answer denied any violation of the Statute and
 contended, among other things, that the complaint is moot.
    A hearing was held in Seattle, Washington.  The Respondent, Charging
 Party, and the General Counsel were represented by counsel and afforded
 full opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  Based on the
 entire record, /1/ including my observation of the witnesses and their
 demeanor, I make the following findings of fact, conclusions of law, and
                             Findings of Fact
    At all times material herein, the National Council of EEOC Locals,
 No. 216, American Federation of Government Employees, AFL-CIO has been
 certified as the exclusive representative of an appropriate nationwide
 unit of professional and nonprofessional employees of the Equal
 Employment Opportunity Commission (EEOC), including the employees at
 Respondent, Seattle District Office.
    At all times material herein, a collective bargaining agreement has
 been in effect between the Council and the EEOC.  (Joint Ex. 1).  By the
 terms of Article 39, the Council is permitted to designate local
 stewards and the EEOC agrees to recognize the representatives designated
 by the Council.  Arthur Joyner is the Chief Steward for AFGE Local 3230
 representing employees at Respondent, one of the EEOC District Offices
 referred to in Article 39.  (Tr. 20).
    On or about December 2, 1981, Respondent notified Juan Sanchez of a
 proposal to remove him from his position as a GS-13 trial attorney.
 Thereafter, and in accordance with the provisions of the collective
 bargaining agreement, oral and written presentations were submitted by,
 and on behalf of, Mr. Sanchez.  (General Counsel's Ex. 2).
    In the course of the proceedings to remove Mr. Sanchez, a dispute
 developed over who would represent him in the proceedings.  Mr. Sanchez
 had retained the services of a private attorney and, in addition, had
 designated Union Steward Arthur Joyner as his representative pursuant to
 Article 24 of the collective bargaining agreement.  Respondent insisted
 that Sanchez was entitled to only one representative and refused to
 acknowledge his selection of both a Union representative and private
 counsel.  /2/ The Union insisted that it was representing Mr. Sanchez
 concerning "administrative, contractual or procedural matters" and that
 Mr. Sanchez's attorney was representing him concerning his "legal rights
 under Title 7 or any other statute." (Tr. 42-44).  Both representatives
 were involved in discussions with management concerning the proposed
 removal.  During the course of these discussions, Mr. Joyner indicated
 that if a decision to remove were issued, an extensive grievance would
 be filed.  (Tr. 22).
    On January 22, 1982 Respondent issued a decision to remove Sanchez
 from his position effective February 12, 1982.  Both the Union and Mr.
 Sanchez's attorney were sent copies of the decision.  (General Counsel's
 Ex. 2).
    By a three page memorandum dated February 4, 1982 to District
 Director Donald W. Muse, subject "First Request for Information
 Regarding The Pending Grievance of Juan J. Sanchez," Union
 representative Joyner requested 21 items of information.  These items
 fell generally into the categories of requests for information regarding
 persons contacted and other transfers and assignments considered for
 Sanchez and others (Items 1-3, 21), disciplinary information concerning
 Sanchez and others (Items 4, 7-10, 15-16, 20), medical information and
 physicians consulted concerning Sanchez (Items 5, 6), leave policies
 (Items 11, 12), evaluations of Sanchez and others (Items 13, 19), and
 training information concerning Sanchez (Items 14, 17, 18).  Generally,
 information was requested for the three year period of January 1, 1979
 to February 4, 1982.  (General Counsel's Ex. 4).
    By letter dated February 10, 1982 District Director Muse responded to
 Mr. Joyner, in part, as follows:
          EEOC does not recognize the requirements of discovery or
       interrogatory in the administrative grievance procedure.  This
       procedure is not in the judicial process.  Your request appears to
       be of this nature.
          If you require information to assist you in carrying out your
       representative function, we will consider furnishing it, provided
       it is reasonable, specific or required by the Collective
       Bargaining Agreement.  (General Counsel's Ex. 5).
    At the time Mr. Muse responded to the letter no grievance had been
 filed;  however, Mr. Muse knew that the termination was hotly contested
 and that the Union was contemplating filing a grievance.  (Tr. 60, 75).
 Sanchez had also filed several EEO charges in connection with the
 proposed dismissal.  The details concerning the EEO charges are not
 reflected in the record.  (Tr. 71-72).
    On February 11, 1982 Union representative Joyner filed a grievance
 directly with the Acting Chair, EEOC in Washington, D.C. in accordance
 with the expedited procedure contained in Article 46f of the agreement.
 Mr. Sanchez was identified and signed as the grievant and Mr. Joyner as
 the Union steward.  The nature of the discipline was identified as
 "termination" and the "corrective action requested" was reinstatement,
 backpay, transfer, expungement of records, and counseling and training,
 as appropriate.  Multiple issues were identified in a 22 page
 attachment.  The eight general areas of contention were:  Denial of
 Representative, concerning Respondent's refusal to recognize Joyner as
 the Union representative of Juan Sanchez during adverse action
 proceedings, as well as interference with Sanchez's right to select his
 representative, and failure to meet with the Union representative
 concerning the conditions of employment of Sanchez, all in contravention
 of various delineated sections of the collective bargaining agreement;
 Failure to Train the grievant in contravention of EEOC Orders and the
 collective bargaining agreement;  Failure to Counsel or Provide
 Counseling to the grievant concerning mental and emotional problems, in
 contravention of the collective bargaining agreement and federal law;
 Failure to Provide Reasonable Work Conditions for the grievant, in
 contravention of Articles 4(f) and 46(a) of the collective bargaining
 agreement;  Failure to Consider Mitigating Circumstances concerning the
 grievant, in contravention of Article 24(a) of the collective bargaining
 agreement;  Failure to Minimize Action toward the grievant with less
 severe action as required by Article 24 of the collective bargaining
 agreement;  Discrimination of the grievant based upon national origin,
 age, race, sex and in retaliation for the exercise of protected rights,
 in contravention of Article 8(a) of the collective bargaining agreement;
  and finally, the contention that Management's Notice of Proposal to
 Remove failed to contain in the record a number of responses of the
 grievant.  (General Counsel's Ex. 3).
    On February 12, 1982 Sanchez and his attorney, John Beckwith, signed
 a document entitled "Agreement" which provided, among other things, that
 Sanchez's removal would be delayed until March 12, 1982, in order to
 allow for the processing of a request by Sanchez for disability
 retirement.  The document provided that if the application for
 disability retirement were approved by OPM prior to March 12, 1982, the
 "parties to this agreement, specifically Juan Sanchez and the Union
 waive all rights to future appeals to the MSPB, through the negotiated
 grievance procedure, and withdraw any and all charges of race, national
 origin, handicap, sex and age discrimination. . . ." The document also
 provided that if Sanchez's application for disability retirement were
 approved, EEOC "agrees not to include adverse action documents in the
 official personnel file of Juan Sanchez." The document was signed by the
 Regional Attorney and District Director Muse for the EEOC and by Juan
 Sanchez.  John Beckwith signed the agreement as "Attorney-legal
 representative" for Sanchez.  Union representative Joyner refused to
 sign the document, and the line originally designated for the Union's
 signature was stricken.  Joyner stated that the Union did not consider
 the agreement a waiver of any rights that the Union had either as an
 institution and representative of the bargaining unit or to issues in
 the grievance.  (Respondent's Ex. 2;  Tr. 43-44).
    Sanchez's disability retirement was approved by OPM on February 19,
 1982 and became effective on March 12, 1982.  An official notification
 of personnel action was issued by Respondent to reflect his retirement
 on account of disability as of that date.  (Respondent's Ex. 1).
    On February 23, 1982 Union representative Joyner amended Mr.
 Sanchez's grievance to add the remedy that should Sanchez, subsequent to
 his retirement, become fit for duty, that he be offered reinstatement to
 the position of GS-13/10 trial attorney in San Francisco.  The cited
 reason for the amendment was that the earlier decision to terminate Mr.
 Sanchez was on record and would be a severe obstacle to his
 reinstatement.  (General Counsel's Ex. 6).
    Respondent denied the original grievance on March 11, 1982 and the
 amended grievance on March 22, 1982 on the basis that Mr. Sanchez's
 disability retirement had been approved and, therefore, Mr. Sanchez and
 his legal representative had waived the right to grieve the adverse
 action through the negotiated grievance procedure.  Respondent also
 noted that the grievance was over Mr. Sanchez's termination, an action
 which was not, and would not be, taken in view of the approval of his
 retirement.  (General Counsel's Ex. 7, 8).
    The Union referred the grievance to arbitration pursuant to the
 collective bargaining agreement.  The appointment of an arbitrator is
 pending.  (Tr. 28).  /3/ Article 48, section h of the collective
 bargaining agreement provides:
          Absent a negative arbitrator's decision on the arbitrability of
       a grievance, the arbitrator shall hear arguments regarding both
       the arbitrability and the merits of the case at the same hearing.
       However, the parties may mutually agree otherwise in instances
       where such highly complex cases would involve several days of
       hearings.  (Joint Ex. 1, p. 76).
               Discussion, Conclusions, and Recommendations
    The Authority has previously held that section 7114(b)(4) of the
 Statute requires management to furnish a union with information which
 would enable the union to effectively carry out its representational
 obligation during the processing of an employee grievance.  U.S. Customs
 Service, Region VII, Los Angeles, California, 10 FLRA No. 47 (1982).
    The information was specifically requested "regarding the pending
 grievance of Juan J. Sanchez." Although no grievance had been filed at
 the precise time of the Union's request, Respondent was fully aware of
 the Union's representational role and of potential grievance issues.
 There was a clear nexus between much of the information sought and these
 issues.  It is concluded that the information requested in Items 4
 (limited to Seattle office), 5, 11-15 (excluding actions "considered")
 and 16-21 (excluding "handicap") was necessary and relevant in order to
 properly process the employee's grievance at that time.  Respondent's
 defenses, concerning lack of specificity, election of other remedies,
 and Privacy Act considerations, are not supported by the record.
 Accordingly, it is concluded that Respondent violated sections
 7116(a)(1) and (8) of the Statute, by its refusal to provide this
 information during the period from February 4, 1982 to February 19,
    The General Counsel and the Charging Party contend that since the
 Union has taken the grievance to arbitration, the grievance is alive,
 and there is a continuing duty to supply the information.  These parties
 also assert that the effect of the February 12, 1982 agreement on the
 Union's right to pursue the grievance is an arbitrability question to be
 submitted to an arbitrator for resolution and is not appropriate for
 disposition here.  Respondent maintains that the agreement had the
 effect of waiving Mr. Sanchez's rights through the negotiated grievance
 procedure, and the Union has no separate rights which survived the
 agreement which would make the information relevant to the Union's
 representational duty.
    The question of the effect of the February 12, 1982 agreement on the
 Union's right to pursue the grievance is indeed an arbitrability
 question for resolution by the arbitrator.  See Department of the Navy,
 Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 11 FLRA No. 80
 (1983).  However, the effect of the February 12, 1982 agreement on the
 alleged unfair labor practice must be considered here;  that is,
 whether, in light of the agreement, Respondent had a continuing duty to
 provide information to the Union which was relevant and necessary to
 process the grievance of the bargaining unit employee.  The case of U.S.
 Customs Service, Region VII, 10 FLRA No. 47 (1982), cited by the General
 Counsel, is not controlling here.  In U.S. Customs Service the Authority
 rejected the agency's contention, inter alia, that it had no duty to
 furnish requested information because the employee's grievance involved
 a matter which was nongrievable under the parties' negotiated agreement.
  The Authority pointed out that arbitrability questions are to be
 submitted to arbitration, unless otherwise agreed, and found a violation
 for the conceded refusal to furnish necessary and relevant information.
 U.S. Customs Service did not involve an alleged waiver.  Cf. Department
 of the Navy, Portsmouth Naval Shipyard, 4 FLRA No. 82 (1980).
    If the Respondent is correct, there ceased to be a grievance as a
 result of the compliance with the February 12, 1982 agreement, and the
 Union thereafter had no continuing right to process such a grievance.
 Thus, the requested information would no longer be relevant and
 necessary to process "the grievance of a bargaining unit employee," as
 alleged.  The dispute as to the effect of the February 12, 1982
 agreement on the Union's rights will be a threshold issue for the
 arbitrator and would best be resolved through that forum.  Otherwise,
 conflicting interpretations of the agreement might result.  Inasmuch as
 Respondent's interpretation is arguably within the terms of the
 negotiated agreement and the February 12, 1982 agreement, its failure to
 furnish the information after February 19, 1982 (the date of approval of
 Sanchez's disability retirement) did not rise to the level of an unfair
 labor practice.  /4/ Cf. United States Army Aviation Center, Fort
 Rucker, Alabama, 1 FLRA No. 98 (1979);  Harry S. Truman Memorial
 Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90 (1983).
    Assuming, however, that the continuing obligation of the Respondent
 to furnish the information is properly the subject of this unfair labor
 practice complaint, the record will be considered further on that basis.
  Cf. Oklahoma City Air Logistics Center, Tinker Air Force Base,
 Oklahoma, 3 FLRA No. 82 (1980).  It is noted that Sanchez and his
 attorney, by means of the February 12, 1982 agreement, agreed, in
 effect, not to pursue a grievance or other avenues of appeal concerning
 his proposed removal if OPM approved his request for disability
 retirement.  In turn, EEOC agreed to withdraw the proposed removal from
 his personnel file if the request were approved.  Sanchez's request for
 disability retirement was approved by OPM on February 19, 1982.  There
 is no indication in the record that the agreement is invalid, that EEOC
 has not complied with its part of the agreement, or that Mr. Sanchez is
 in any way dissatisfied with the agreement or its results.
    The Union took no part in the agreement and desires to have the
 information in issue in order that it might pursue the grievance.
 However, in my view, the agreement and compliance with it makes the
 alleged continuing need for the information moot.  The complaint
 specifically alleged that the information was "necessary for full and
 proper discussion of the grievance referred to in paragraph 11 above
 ("the grievance of a bargaining unit employee").  The information was
 not requested by the Union qua Union in order to fulfill its bargaining
 responsibilities.  Pursuant to the February 12, 1982 agreement Sanchez
 ceased to be pursuing a grievance as of February 19, 1982 or to be a
 bargaining unit employee after March 12, 1982.  Thus, after February 19,
 1982, the requested information was not relevant and necessary in order
 to process the grievance of a bargaining unit employee, as alleged.
 There was no continuing violation after that date.  An order operating
 prospectively will adequately remedy the violation found.
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Order:
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the U.S. Equal Employment Opportunity
 Commission, Seattle District Office, Seattle, Washington shall:
    1.  Cease and desist from:
          (a) Failing and refusing to furnish to the American Federation
       of Government Employees, Local 3230, AFL-CIO, upon request and, to
       the extent not prohibited by law, data which is reasonably
       available and necessary to enable the exclusive representative to
       perform its representational obligations to a unit employee.