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The decision of the Authority follows:
40 FLRA No. 31
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondents to the attached decision of the Administrative Law Judge. The complaint alleged that the Respondents violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the Union with information requested under section 7114(b)(4) of the Statute. The Judge found that the Respondents violated the Statute as alleged in the complaint. The General Counsel and the Union filed oppositions to the Respondents' exceptions. The General Counsel also filed a motion to strike certain attachments to the Respondents' exceptions and the Respondents filed a response to the motion.
Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the ruling of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's decision, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, as modified below.(1)
The facts, which are set forth fully in the Judge's decision, are briefly summarized here.
The Union is the exclusive representative of a nationwide unit of Respondent's employees. The Union and the Respondents are parties to a collective bargaining agreement, known as "NORD III," which addresses adverse actions involving unit employees. Article 39 of NORD III provides, as relevant here, that in deciding what discipline to impose on unit employees, the Respondents will give "due consideration" to, among other things, "consistency of the penalty with those imposed upon other employees for the same or similar offenses[.]" Brief in Support of Exceptions at 22; Judge's Decision at 2-3.(2)
The grievant, a unit employee in the Respondent's Salt Lake City office, received a proposed letter of removal based on alleged falsification of a document and improper access to the Respondents' Integrated Data Retrieval System (IDRS). The grievant designated a National Field Representative of the Union as her representative. The grievant also requested, under Article 39 of the parties' agreement, to reply orally to the proposed adverse action.
"[I]n order to represent [the grievant] at the oral reply[,]" the Union requested information from the Respondents pursuant to section 7114(b)(4) of the Statute. Judge's Decision at 4. In particular, on May 24, 1989, the Union requested:
All proposed letters, decision letters, letters of reprimand, and oral admonishments confirmed in writing, counseling memos, closed without action letters and clearance letters issue [sic] to all employees in the Southwest Region from January 1, 1984, to the present concerning the alleged accessing of the employee's own tax return or of another individual's tax return for personal purposes including partnerships and corporate tax returns.
Id. (emphasis in original).(3)
The Respondents replied that although the information would be provided with respect to the Salt Lake City office, region-wide information would not be provided. The Respondents asserted, in this regard, that region-wide information was not "relevant" and relied on decisions of the Merit Systems Protection Board (MSPB) to support the assertion. Subsequently, the Respondents provided the Union with information concerning employees in the Salt Lake City Office.
The Union continued to request region-wide information and further requested that the grievant's oral reply be postponed until receipt of that information. The Respondents denied the Union's requests and the oral reply meeting was held. Subsequently, the grievant was issued a 30-day suspension based on the charges contained in the proposed removal. On August 14, 1989, the Union invoked arbitration over the suspension.
III. Administrative Law Judge's Decision
For reasons set forth fully in the Judge's decision, the Judge concluded that the information requested by the Union was normally maintained by the Respondents in the regular course of business, and was reasonably available to the Respondents. The Judge concluded also that the information did not constitute guidance, advice, counsel, or training provided for management officials and that disclosure of the information was not prohibited by law.
The Judge also concluded that the requested information was necessary, within the meaning of section 7114(b)(4). The Judge stated that the requested information would have enabled the Union to determine, before the oral reply and before invoking arbitration, whether the grievant's proposed and final discipline were consistent with penalties imposed on other employees for similar misconduct.
The Judge rejected, in this regard, the Respondents' assertion that, based on MSPB case law, "the only relevant information for the purposes of evaluating disparate treatment is from the employee's same module or work unit." Judge's Decision at 12. The Judge concluded, instead, that pursuant to collective bargaining under the Statute, parties may create enforceable rights which differ from those provided by the MSPB. Noting that an arbitrator "might very reasonably determine that nationwide or Region-wide data would be appropriate in determining disparate treatment" under Article 30 of NORD III, the Judge held that the MSPB decisions relied on by the Respondents did not preclude a finding that the requested information was necessary to the Union under section 7114(b)(4) of the Statute. Id. at 14.
To remedy the Respondents' violation of section 7116(a)(1), (5), and (8) of the Statute, the Judge recommended that the Respondents be directed to cease and desist from their unlawful actions. The Judge also recommended, among other things, that the Respondents be directed to (1) furnish the Union with the requested information, and (2) upon request of the Union, proceed to arbitration over the grievant's suspension.
IV. Respondents' Exceptions
The Respondents raise three exceptions to the Judge's decision.
First, the Respondents contend that the Judge erred in failing "to adequately address" an asserted conflict between "the law of the [MSPB] on the production of disparate treatment information" and that of the Authority. Exceptions at 1. The Respondents argue that under MSPB law "the only relevant evidence which can be used to prove disparate treatment is evidence from the employee's work unit." Brief in Support of Exceptions at 1.
Second, the Respondents assert that the Judge misinterpreted Article 39 of NORD III. The Respondents contend that, in view of the parties' bargaining history, Article 39 does not support a conclusion that the requested information could be used to support a claim of disparate treatment by the grievant.
Finally, the Respondents contend that the only remedy now applicable is the posting of a notice. The Respondents argue that the other portions of the Judge's proposed remedy are no longer appropriate based on events occurring after the conclusion of the unfair labor practice hearing.
V. General Counsel's Opposition And Motion to Strike
The General Counsel moves that a chart and three exhibits attached to the Respondents' exceptions be struck from the record. The General Counsel argues the Authority's decision on exceptions "must be based upon the record established by the parties at [the] hearing and not upon additional information submitted by one of the parties after the fact." General Counsel's Motion to Strike at 2. The General Counsel notes that although the information contained in the chart and exhibits was in the Respondents' possession before the Administrative Law Judge issued his decision, the Respondents did not move to reopen the hearing or in any other way seek properly to make these matters a part of the record.
In its opposition, the General Counsel argues that the Union is entitled to the requested information because it is necessary for the Union to fulfill its representational responsibilities. The General Counsel asserts that the Respondents' contentions that MSPB decisions preclude a finding that the requested information is necessary should be rejected because, in part, parties are entitled under the Statute to negotiate over the "comparison group[s]" for purposes of determining disparate treatment and, consistent with decisions by the courts and the MSPB, such collectively-bargained provisions are enforceable.
The General Counsel also contends that the Judge did not improperly interpret a provision of the parties' collective bargaining agreement. The General Counsel asserts that the Judge merely "noted that since the agreement covers a nationwide bargaining unit, 'an arbitrator might very reasonably determine that nationwide or Region-wide data would be appropriate in determining disparate treatment . . . .'" General Counsel's Opposition at 8 (emphasis in original). The General Counsel states that "[t]his is a far cry from an interpretation of the agreement." Id.
Finally, the General Counsel argues that the Judge's recommended remedy should not be modified "based on events subsequent to the close of the hearing." Id. at 10. The General Counsel maintains that requiring the Respondents to furnish the requested data and to proceed to arbitration upon the Union's request "provides the only meaningful remedy for management's failure and refusal to furnish data needed by the Union to represent an employee at arbitration." Id. at 11 (footnote omitted).
VI. Union's Opposition
The Union asserts, first, that the Respondents' arguments based on MSPB case law should be rejected. According to the Union, "the Authority is the exclusive administrative body for determining a union's entitlement to information under the Statute." Union's Opposition at 7. Second, the Union agrees with the General Counsel that the Judge's "observation" regarding Article 39 of NORD III does not constitute an improper interpretation of that Article. Id. at 15. The Union also points out, in this regard, that other arbitrators have "found a region-wide comparison group to be relevant under Article 39." Id. at 15-16. Finally, the Union argues that, as the Authority is required to base its decision on the hearing record alone, the Authority should reject the Respondents' arguments that the Judge's recommended remedy should be modified based on events occurring after the close of the hearing.
VII. Analysis and Conclusions
A. The Motion to Strike
Section 2429.5 of the Authority's Rules and Regulations provides:
The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the Regional Director, Hearing Officer, Administrative Law Judge, or arbitrator. The Authority may, however, take official notice of such matters as would be proper.
Consistent with this Regulation, we will not consider the exhibits attached to the Respondents' exceptions. Exhibits 1 and 2 are documents relating to events concerning the grievant's suspension which took place after the close of the unfair labor practice hearing. Exhibit 3 is an affidavit discussing Exhibits 1 and 2 and, as such, its admissibility depends on the admissibility of those exhibits.
The three exhibits were not in existence prior to the close of the unfair labor practice hearing and could not, therefore, have been offered into evidence at the hearing. We reject, however, the Respondents' assertion that there was "no . . . way for the Respondent[s] to inform the Authority" of the matters contained in the exhibits other than to attach them to its exceptions. Response to Motion to Strike at 4. Instead, the Authority's Regulations encompass procedures by which the Respondents could have sought to introduce the exhibits as evidence. See 5 C.F.R. § 2423.19(k) (the Judge presiding at an unfair labor practice hearing has authority to grant motions to reopen hearings); 5 C.F.R. § 2423.22(a) (motions made after a hearing opens and before a case is transmitted to the Authority must be made in writing to the Judge).
The documents encompassed by Exhibits 1 and 2 came into existence within 2 months of the close of the hearing before the Judge. Accordingly, if the Respondents deemed these exhibits relevant to the issues in this case, the Respondents should have sought permission from the Judge to make them a part of the record in this case. As the Respondents do not justify their failure to do so, and as there is no basis in Authority precedent for concluding that we should otherwise take official notice of the exhibits, we will not consider them here. See United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 26 FLRA 630 (1987).
We also conclude, however, that Chart 1 does not constitute "evidence" or an "issue," within the meaning of section 2429.5 of our Regulations. Instead, Chart 1 is merely a graphic description of an argument, which is properly before us, concerning the meaning and intent of Article 39 of NORD III. Accordingly, we deny the General Counsel's motion that it be struck from the record.
B. The Merits
No exceptions were filed to the Judge's conclusions that, within the meaning of section 7114(b)(4) of the Statute, the requested information: (1) is normally maintained by the Respondents in the regular course of business; (2) is reasonably available; (3) does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining; and (4) is not otherwise prohibited from disclosure by law. Accordingly, we adopt these conclusions.
We also adopt the Judge's conclusion that the requested information is necessary, within the meaning of section 7114(b)(4). We note first that an agency's contention that information requested under section 7114(b)(4) cannot be used as evidence in another proceeding does not relieve an agency of its obligation to furnish information under section 7114(b)(4). For example, U.S. Department of Labor, Washington D.C., 39 FLRA 531, 537-39 (1991); U.S. Department of Transportation, Federal Aviation Administration, New England Region, Burlington, Massachusetts, 38 FLRA 1623, 1628-30 (1991); Department of the Air Force, Scott Air Force Base, Illinois, 38 FLRA 410, 415-17 (1990), petition for review filed sub nom. Department of the Air Force, Scott Air Force Base Illinois v. FLRA, No. 91-1042 (D.C. Cir. Jan. 24, 1991).
Second, we reject the Respondents' contentions that the requested information is not necessary because region-wide information could not be used in MSPB proceedings to support allegations of disparate treatment. The information was requested, under the Statute, to assist the Union in making an oral reply to a notice of proposed removal. No final action on the proposed removal had been taken by the Respondents and, obviously, no decision as to appeal, if any, of the final action had been made.
There is no question that the requested information was pertinent to, and would have been useful in, the oral reply. In fact, the Respondents do not argue to the contrary. Rather, the essence of the Respondents' argument is that "the Union was seeking to use the right under [section] 7114(b)(4) to request information as a type of pre-discovery to an eventual MSPB or arbitration hearing[.]" Brief in Support of Exceptions at 12. There is, however, no support in the record for the Respondents' assertion. Instead, as found by the Judge, and consistent with the Union's request and the entire record, it is clear that the Union requested the information "in order to represent [the grievant] at the oral reply." Judge's Decision at 4. As such, the Respondents' arguments concerning the discoverability and admissibility of evidence in MSPB proceedings are speculative and provide no basis on which to conclude that the requested information was not necessary.
We conclude, based on the foregoing, that the requested information was necessary, within the meaning of section 7114(a)(4) of the Statute, for the Union to discharge its representational responsibilities.(4) As the Judge's conclusions that the other requirements in section 7114(a)(4) were satisfied are not in dispute, the Respondents violated section 7116(a)(1), (5), and (8) by refusing to furnish the Union with the requested information.
We reject the Respondents' arguments that they should not be required to furnish the Union with the requested information or proceed to arbitration because the matter of the grievant's suspension was resolved by the parties subsequent to the unfair labor practice hearing. With respect to latter point, the Judge's recommended order requires the Respondents to proceed to arbitration only if so requested by the Union. As for the former point, there is no agreement between the parties that a requirement that the Respondents furnish the Union with the requested information is moot. Compare U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241, 255 (1991), petition for review filed sub nom. United States Department of Treasury, Internal Revenue Service v. FLRA, No. 91-1153 (D.C. Cir. Mar. 29, 1991) (parties agreed that there was no longer a need for the respondent to furnish the union with requested information). Moreover, the record before us does not otherwise support a claim that this portion of the Judge's recommended order is moot. We will, however, modify the Judge's order so as to require the Respondents to provide the requested information upon request of the Union. If the Union now considers the matter resolved, the Union may elect not to take any further action in the matter.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Salt Lake City District, Salt Lake City, Utah, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the National Treasury Employees Union, the employees' exclusive representative, with the information requested by the Union on May 24, 1989.
(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Upon request, furnish the National Treasury Employees Union, with the information requested by the Union on May 24, 1989.
(b) Upon request of the National Treasury Employees Union, proceed to arbitration under the collective bargaining agreement in the matter underlying the request for information.
(c) Post at its Salt Lake City, District Office copies of the attached Notice on forms to be furnished by the Federal labor Relations Authority. Upon receipt of such forms, they shall be signed by the District Director for the Salt Lake City District, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
WE WILL NOT fail and refuse to furnish the National Treasury Employees Union, the employees' exclusive representative, with the information requested by the Union on May 24, 1989.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL upon request, furnish the National Treasury Employees Union, with the information requested on May 24, 1989.
WE WILL upon request of the National Treasury Employees Union, proceed to arbitration under the collective bargaining agreement on the matter underlying the request for information.
Dated: By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Denver Regional Office, whose address is: 1244 Speer Boulevard, Suite 100 Denver, CO 80204, and whose telephone number is: (303) 844-5224.
(If blank, the decision does not have footnotes.)
1. On March 15, 1991, the Authority granted the Charging Party's motion, which was not opposed by the General Counsel or the Respondents, to delete all references to the affected employee's name from any subsequent decision and order or publication issued by the Authority and to substitute, in lieu thereof, "the grievant."
2. At the time of the Union's original request for information, the Union and the Respondents were parties to a predecessor agreement, "NORD II." Brief in Support of Exceptions at 21. There are no differences relevant to this case between Article 39 of NORD II and Article 39 of NORD III. Id. at 22 n. 5; Judge's Decision at 2.
3. The Southwest Region is composed of 14 separate offices and approximately 18,000 unit employees.
4. In so concluding, we find it unnecessary to address, and do not adopt, the Judge's conclusions regarding the MSPB and court cases relied on by the Respondents or the Judge's statements regarding Article 39 of NORD III.