[ v17 p912 ]
17:0912(120)CA
The decision of the Authority follows:
17 FLRA No. 120
U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, SEATTLE DISTRICT OFFICE
SEATTLE, WASHINGTON
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3230, AFL-CIO
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.
ORDER
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
Chairman
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
DECISION
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
recommendations.
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,
1982.
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:
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.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Upon request, and to the extent not prohibited by law,
furnish to the American Federation of Government Employees, Local
3230, AFL-CIO, data which is reasonably available and necessary to
enable the exclusive representative to perform its
representational obligation to a unit employee.
(b) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the District
Director and shall be posted and maintained by him for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. The District Director shall take reasonable
steps to insure that such notices are not altered, defaced, or
covered by any other material.
(c) Pursuant to 5 C.F.R.Section 2423.30 notify the Regional
Director, Region Nine, Federal Labor Relations Authority, San
Francisco, California, in writing, within 30 days from the date of
this order, as to what steps have been taken to comply herewith.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: June 13, 1983
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE We Hereby Notify Our Employees That:
WE WILL NOT fail and refuse 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. WE WILL NOT in any
like or related manner, interfere with, restrain, or coerce employees in
the exercise of their rights assured by the Statute. WE WILL, upon
request, and to the extent not prohibited by law, furnish to the
American Federation of Government Employees, Local 3230, AFL-CIO, data
which is reasonably available and necessary to enable the exclusive
representative to perform its representational obligation to a unit
employee.
(Agency or Activity)
Dated: . . . By: (Signature) 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 any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region Nine, whose address is:
530 Bush Street, Room 542, San Francisco, California 94108, and whose
telephone number is: (415) 556-8106.
--------------- FOOTNOTES$ ---------------
/1A/ The complaint herein alleged that the Respondent, on February
10, refused to provide the information requested by the Union and
thereby violated section 7114(b)(4) of the Statute.
/1/ The General Counsel's motion to correct the transcript is
granted; the transcript is hereby corrected as set forth therein.
/2/ Article 24g(b) of the collective bargaining agreement provides,
among other things, that a schedule A attorney shall be notified of his
right "to be represented by the Union or another representative of the
employee's choice." (Joint Ex. 1, p. 43).
/3/ Respondent presented testimony purporting to show that the
grievance has been terminated. Ms. Godwin testified that, in August
1982, Gwen Jones of her office sent a letter to the Local president
advising that if the Union did not contact the Agency to strike for an
arbitrator within 5 days, the Agency would terminate the grievance; and
that, since no contact was made as required, the Agency had terminated
the grievance. (Tr. 87-88). I am unable to find that the grievance has
been effectively terminated based on this testimony. The collective
bargaining agreement covers the situation where a party unduly delays
the selection of an arbitrator. The case is not terminated or dismissed
in such circumstances. Rather, Article 48, section C requires that the
other party return the list with its order of preference to the FMCS
"for selection of the available arbitrator." (Joint Ex. 1, p. 75).
/4/ If the arbitrator decides the arbitrability issue in favor of the
Union and reaches the merits of the grievance, a request for the
information may be reasserted at that point.