[ v18 p173 ]
18:0173(25)CA
The decision of the Authority follows:
18 FLRA No. 25
U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, WASHINGTON, D.C.,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3230, AFL-CIO
Charging Party
Case No. 9-CA-30362
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 as alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision and a supporting brief.
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 and conclusions, and her recommended Order as modified
below.
The Authority, in agreement with the Judge, finds that the
Respondent's refusal to furnish the Charging Party with certain
necessary data within the meaning of section 7114(b)(4) of the Statute,
requested in connection with a grievance on behalf of a unit employee
filed under the parties' negotiated grievance procedure, constituted a
violation of section 7116(a)(1), (5) and (8) of the Statute. /1/
However, contrary to the Judge, the Authority finds that the Judge's
recommended remedy for the violation found herein is inappropriate to
the extent that it would require rescission of the employee's two-day
suspension and restoration of any lost wages and benefits. Thus an
order, requested by the General Counsel, directing the Respondent to
furnish the documents and material sought by the Charging Party and to
post notices will fully effectuate the purposes and policies of the
Statute. In this regard, it is noted that there is no allegation in the
complaint that the suspension was wrongful, but only that the Union was
denied information necessary to its presentation of a defense to the
employee's proposed suspension. Moreover, the Judge did not find, and
the record does not establish, that, but for the Respondent's unlawful
refusal to furnish the necessary data requested by the Charging Party,
the affected employee would not have suffered the loss of pay and
benefits in question. See, e.g., Department of the Air Force, Air Force
Systems Command, Electronic Systems Division, 14 FLRA 390 (1984);
Social Security Administration, 16 FLRA No. 148 (1984).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the U.S. Equal Employment Opportunity Commission,
Washington, D.C., shall:
1. Cease and desist from:
(a) Refusing or failing to furnish, upon request by the American
Federation of Government Employees, Local 3230, AFL-CIO, the data
previously requested in connection with a unit employee's grievance
which is necessary to enable Local 3230 to discharge its obligation as
the agent of the exclusive representative to represent the interests of
all employees in the bargaining unit.
(b) In any like or related manner interfering with, restraining, or
coercing its 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 Federal Service Labor-Management Relations
Statute:
(a) Upon request, furnish to the American Federation of Government
Employees, Local 3230, AFL-CIO, the data previously requested in
connection with a unit employee's grievance which is necessary to enable
Local 3230 to discharge its obligation as the agent for the exclusive
representative to represent the interests of all employees in the
bargaining unit.
(b) Post at its Seattle 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 Manager, or
a designee, 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 insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., May 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request by the American
Federation of Government Employees, Local 3230, AFL-CIO, the data
previously requested in connection with a unit employee's grievance
which is necessary to enable Local 3230 to discharge its obligation as
the agent of the exclusive representative to represent the interests of
all employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish to Local 3230, the data previously
requested in connection with a unit employee's grievance which is
necessary to enable Local 3230 to discharge its obligation as the agent
of the exclusive representative to represent the interests of all
employees in the bargaining unit.
(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 its provisions, they may communicate directly with the Regional
Director, Region IX, Federal Labor Relations Authority, whose address
is: 530 Bush Street, Room 542, San Francisco, California 94108, and
whose telephone number is: (415) 556-8106.
-------------------- ALJ$ DECISION FOLLOWS --------------------
William L. Harris,
Counsel for Respondent
Arthur J. Joyner,
Counsel for Charging Party
Patricia J. Howze,
Counsel for the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO, Administrative Law Judge
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the "Statute," and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
On May 2, 1983, the Charging Party (also referred to herein as the
"Union") filed, with the Federal Labor Relations Authority
("Authority"), a charge of an unfair labor practice against the
Respondent, the Equal Employment Opportunity Commission ("EEOC"),
Seattle District Office ("SEDO"). The charge alleges a failure and
refusal to provide the Union with requested information. On August 1,
1983, an amended charge was filed, naming the statutory provisions which
has been violated. On August 22, 1983, a second amended charge was
filed, naming EEOC, Washington, D.C., as the Respondent and a different
person at EEOC as the agency person to contact.
The General Counsel of the Authority investigated the charges and, in
a complaint served on August 22, 1983, charges Respondent with
violations of Sections 7114(b)(4) and 7116(a)(1), (5), and (8) of the
Statute. /2/ The alleged violative act is the failure and refusal to
furnish certain information for use in connection with the Union's
representation of a bargaining-unit employee employed at Respondent's
SEDO.
In its answer to the complaint, Respondent admits that the District
Director, SEDO, denied some of the information requested.
On December 6, 1983, in Seattle, Washington, a hearing was held at
which all the parties appeared, presented evidence, and examined
witnesses. Briefs were filed by the Respondent, on January 3, 1984, and
by the General Counsel, on January 4.
Based upon the record made in this proceeding, my observation of the
demeanor of the witnesses, the oral arguments at the conclusion of the
testimony, and the briefs, I enter the following findings of fact and
conclusions of law, and recommended the entry of the following order.
Findings of Fact /3/
1. At all times material herein, Respondent has been, and is, an
agency within the meaning of Section 7103(a)(3) of the Statute.
2a. At all times material herein, the National Council of EEOC
Locals No. 216, American Federation of Government Employees, AFL-CIO
("NCAFGE"), has been, and is, a labor organization within the meaning of
Section 7103(a)(4) of the Statute.
b. At all times material herein, Local 3230 has been an affiliate of
NCAFGE and an agent of NCAFGE for purposes of representing employees at
SEDO, and has been, and is, a part of a labor organization within the
meaning of Section 7103(a)(4) of the Statute.
c. At all times material herein, NCAFGE has been certified as the
exclusive representative of employees in an appropriate unit of
employees of Respondent.
d. At all times material herein, Arthur E. Joyner has been the
steward of the Union at SEDO and, in such capacity, has been an agent of
the Union.
3. At all times material herein, Donald W. Muse has been the
District Director of SEDO and, in such capacity, has been a supervisor
and/or management official within the meaning of Section 7103(a)(10)
and/or (11) of the Statute, and an agent of Respondent.
4a. At all times material herein, NCAFGE and Respondent have been
parties to a collective bargaining agreement, the terms of which
provide, inter alia, for the local administration of such contract,
including but not limited to the investigation and processing of
grievances under the negotiated grievance procedure at the District
Office level, where appropriate.
b. The agreement contains procedures to be followed in the event a
bargaining-unit employee is faced with a proposed adverse action,
including representation by the Union. See Jt 1, Article 24, pages
40-44.
c. Article 24(h) provides that a bargaining-unit employee, faced
with a proposed adverse action, may respond and offer evidence to
controvert or lessen the seriousness of the charge. See Jt 1, page 44.
d. Article 23(e) of the agreement provides that:
All disciplinary actions shall be taken at the earliest stage
needed to correct the deficiencies that have occurred. Before
issuance of action, the EMPLOYER shall ensure that all extenuating
circumstances have been carefully considered and evaluated. Like
penalties should be imposed for like offenses. To accomplish
this, the EMPLOYER shall be as consistent as possible when
deciding what penalty is appropriate, considering not only the
gravity of the offense, but such other matters as the mitigating
circumstances, the frequency of the offense, and whether the
action accords with justice in the particular situation.
See Jt 1, p. 38.
5. On February 11, Ethel Rocco, Chief, Operations Services Unit,
"OSU"), issued a Notice of Proposed Suspension to Tora Roksvog,
Administrative Clerk. The proposed suspension was for 30 days, and
concerned Ms. Roksvog's allegedly "poor performance and conduct
(disobedience of instructions, concealment of public records and
deceitful behavior) . . . ." See GC 3, page 1. The Notice recited the
fact that, on January 7, in a storeroom, an employee had discovered two
boxes, labeled "Tora's-- Do Not Remove," which contained "many original
purchase orders, invoices, delivery receipts, travel vouchers, requests
for driver's licenses, various correspondence, inventories, ID cards,
etc." Ibid. Examples were given, the first being a travel voucher dated
August 8, 1981, for which the employee remained uncompensated. See GC
3, page 2. The Notice recited the fact that these documents were
initiated and/or received by Tora Roksvog over the period she had
worked, as a Clerk, in OSU from January 19, 1981 to May 24, 1982. The
Notice alluded to frequent staff meetings, during this period, at which
problems could have been discussed. It referred to her "workload
stress" during this period. See GC 3, page 6. It referred to another
employee being assigned to several of Ms. Roksvog's assignments "in an
effort to get the job done." I0id.
6. Ms. Roksvog sought representation from the Union in responding to
the proposed adverse action and, on February 23, a union steward, Arthur
Joyner, requested the following information from SEDO Manager, Donald
Muse:
(1) Copies of any and all "assignment sheets" maintained by
this office which record or otherwise reflect the assignments of
Ms. Roksvog for the period of January 19, 1981 to May 24, 1982.
(2) Copies of any and all notes, memos, letters or other
documents by whomever recorded or maintained which record or
otherwise reflect any and all supervisory admonishments,
discipline, awards or other performance related comments regarding
the performance of Ms. Roksvog for the period January 19, 1981 to
May 24, 1982.
(3) Copies of any and all records, memos, or other documents,
by whomever recorded or maintained which record or otherwise
reflects the names and periods of assignment, of person (sic)
assigned to the Operations Services Unit during the period of
January 19, 1981 to May 24, 1982.
(4) Copies of any and all inventories, notes, memos or other
documents, by whomever recorded or maintained which record or
reflect the contents of the two boxes marked "Tora's Do Not
Remove" found by Reginald Hodges in the SEDO office storeroom on
1/7/83.
(5) Copies of any and all notes, memos, letters or other
documents by whomever recorded or maintained which record, concur
or reflect any and all supervisor actions taken by SEDO management
to redress, correct or otherwise amend the mistakes, omissions or
other administrative deficiencies regarding the paperwork or
administrative documents and submissions alleged delineated or
stated in the notice of proposed suspension issued to Ms. Roksvog
on or about Feb. 11, 1983.
See GC 4. The information was requested as to Ms. Roksvog's proposed
suspension, pursuant to 5 U.S.C. 7114(b)(4) and the parties' collective
bargaining agreement. Mr. Muse received the request on February 24.
7. On February 25, Sandra A. Cross, Personnel Specialist, responded
to the Union in regard to the request. The response granted items 2 and
4 of the request, and attached the granted documents. The response
stated:
Since the Operations Services Chief is on leave until Tuesday,
March 1, 1983, I am deferring (1), (3) and (5) for reply upon her
return. Also, it is suggested that you furnish, in writing, the
relevance of request (1), (3) and (5) since you have received a
copy of the adverse action file, which was the sole
source/reference for the proposed action.
See GC 5.
8. Upon receiving the above response to the Union's request, Mr.
Joyner met with Ms. Cross, on February 25, to inquire as to why he was
not getting all the information. Ms. Cross stated that she lacked the
power to make the final determination, and expressed "some concern about
the relevancy" (TR 32). Mr. Joyner replied that the issue of relevancy
had been raised before, in his investigations of grievances, and that:
"Most of the items were taken directly from terms or things tat had been
noted in the proposed suspension, so that to (him) it was relevant on
the face of it." See TR 32. /4/
9. On March 2, Mr. Muse advised the Union in writing that its
request for information contained in paragraphs Nos. (1), (3) and (5)
was denied as not being relevant to the adverse action proposed. The
memorandum further stated: "If you wish to state the relevancy of the
information requested and how it is necessary to the employee's
response, I will reconsider your request." See GC 7.
10a. Upon receipt of the response from Mr. Muse, Mr. Joyner, on
March 2 or 3, went to Mr. Muse's office. Mr. Muse recalls this meeting
and testified that there was "agreement and disagreement" with Mr.
Joyner as to what took place (TR 59). Mr. Muse testified that Tora
Roksvog was discussed and that he had conceded to Mr. Joyner, that she
had been a "very good employee" (TR 59), with "a lot of work to do," and
that she had been "under stress, personal and business stress." See TR
60. Mr. Muse denied that Mr. Joyner made any attempt to furnish the
necessity or relevancy of the information being denied and testified
that, instead, Mr. Joyner adhered to "his longstanding position" that he
did not have to furnish this (TR 60). Mr. Muse conceded that he
provided item 1, in the Union's request for information, after talking
to Mr. Joyner.
b. Mr. Joyner testified that, during this meeting, he and Mr. Muse
talked generally about the problem of Ms. Roksvog. He also testified
about the request for information and that:
. . . we went through the items one by one, and I told him that
I needed item No. 1 because there was some referral in the
proposed notice of suspension on assignments, that I needed to
know what Tora's assignments were, that I had been told by both
Tora and other persons that Ms. Rocco kept track of the
assignments that she gave people in her unit.
. . . I also told him that I needed No. (3) to determine the
workload in the unit at that time. That . . . Tora had been doing
a lot of work in the unit; that the unit had been understaffed.
She was responsible for a lot. That she probably did not have the
opportunity to complete it. And we also talked about No. 5, as
far as discipline, or as a requirement for graduated discipline.
That was a proposal for 30-day suspension, which was really
agregious (sic) if the employee had never been disciplined before.
See TR 33-34. He also testified that he told Mr. Muse that he needed
Item 3 in order "to talk to people." (TR 46). He testified that there
are four or five people normally assigned to OSU who "move in and out,
as work dictates." See TR 38.
c. Mr. Joyner appeared to be surer of his facts and to have a better
recollection of events than Mr. Muse and, where their testimony is in
conflict, I credit that of Mr. Joyner. Specifically, I credit Mr.
Joyner's testimony as set forth in finding 10b, above. Mr. Joyner's
testimony, that he did explain why he needed the requested information,
is bolstered by the fact that, following the discussion, Mr. Muse was
persuaded to furnish one of the previously-denied items, item 1.
11a. On March 5, during the "oral presentation" of Ms. Roksvog's
case (TR 36), Mr. Joyner testified that he again discussed his request
for information with Mr. Muse. Mr. Joyner testified that he told Mr.
Muse that:
. . . I wanted to show, by item 3, that first of all, Tora was
overworked, that she did not have an opportunity to perform all
this work that had later been found in the box, that the
supervisor had never performed her function of monitoring the
work, knowing what assignments the employees got, making sure that
Ms. Roksvog followed through on assignments. And that I needed to
know who was working in the unit, how much of the work Tora
actually was charged with doing, and how much of it that she
actually had time to do.
There was substantial overtime authorized at that time for some
of this work to be done, and as far as the fifth one, again, we
talked about the fact that there was a necessity for graduated
discipline. That I couldn't show what kind of discipline, that
everything I had heard about Tora, both from management and from
bargaining unit, was that she was an exemplary employee and that a
30-day suspension, or any suspension at all, was agregious (sic),
given that the contract spoke in terms of step discipline. And
also the FPM spoke of step discipline.
See TR 36-37.
Mr. Joyner testified that Mr. Muse responded that he did not want to
hear about workload, as it was not relevant and he was not going to deal
with it.
b. Mr. Muse, in his testimony, conceded that Mr. Joyner renewed his
request for the information, at the beginning of the oral presentation.
See TR 63. Mr. Muse testified that he "reiterated" to Mr. Joyner that:
. . . (he) would concede that the employee was an exemplary
employee before and after; (he) reiterated that (they) were
dealing with not performance, but with conduct; and that (he)
conceded also that she was under stress, and that those items that
(Mr. Joyner) indicated that he needed, were already conceded to by
(Mr. Muse) and that it wasn't necessary to reiterate them again.
See TR 63-64. Mr. Muse testified that Mr. Joyner did not specifically
advise him of the relevancy of the items being denied.
c. For the reasons stated in finding 10c, I credit the testimony of
Mr. Joyner over that of Mr. Muse, where they are in conflict.
Specifically, I credit the testimony of Mr. Joyner as set forth in
finding 11a, above.
12a. At the hearing, it was established, through the testimony of
Mr. Joyner, that the information sought in item 3 of the request for
information was needed so that he could "talk to the individuals that
were involved to see if they had any information that would be useful"
and "to assess the workload," in order to seek mitigation of the
penalty. (TR 39).
b. He also established, at the hearing, as to item 5 of the request,
that it "had to do with corrective action" and "mitigation of the
offense," that is, the "necessity for management to engage in step
discipline." See TR 40.
13. On March 11, the Union and Ms. Roksvog, presented to Mr. Muse
their written response to the February 11 Notice of Proposed Suspension.
See GC 8. In the response, note was made that: "Due to management's
refusal to furnish information on the staffing of that unit (OSU) during
the relevant time period, (the Union and Ms. Roksvog) are unable to
state with certainty what additional duties Ms. Roksvog was required to
assume due to staff shortages, transfers, details or reassignments." See
GC 8, page 1. One defense raised was that Ms. Roksvog's supervisor
should have been charged, rather than Ms. Roksvog, because she failed
"to adequately monitor the employee" whom she had placed in a stressful
situation (GC 8, pages 2 and 6). The written response refers to the
fact that, during the period from January 19, 1981 to May 24, 1982, Ms.
Roksvog had been rated as an exceptional employee by the supervisor
proposing the adverse action; had received special achievement cash
awards; had worked extensive overtime; had suffered extreme stress,
while working in OSU, and was undergoing medical and psychiatric
treatment involving drugs and sedatives; had been transferred to work
in another unit; had boxed and took with her a number of documents
which required further work, on instructions of her OSU supervisor;
that the boxes were moved from her office (while she was away on a
detail) and placed in a storeroom to which she did not have access; and
that her former supervisor in OSU never inquired about the documents in
the boxes, despite the receipt by the supervisor of numerous complaints
and inquiries regarding the documents. See GC 8, pages 1-2. The
response also refers to the fact that Ms. Roksvog's current supervisor
and manager have stated that her "performance has been and remains
excellent." See GC 8, page 3.
14a. On March 16, Mr. Muse, in a written memorandum, notified Ms.
Roksvog that she would be suspended from duty, without pay, for two
calendar days-- March 31 and April 1. See GC 9, page 2. He found her
guilty of concealing public records and disobeying instructions. See GC
9, page 1. In considering this "final decision" (TR 64), Mr. Muse took
into consideration the "workload" of Ms. Roksvog, "as far as penalty was
concerned," but not as to whether she was "guilty or not guilty" of the
"allegations." See TR 68 and also TR 69 and 70. The memorandum referred
to two statements "voluntarily submitted by two OSU employees regarding
procedures in the unit." (GC 9, page 1).
b. Mr. Muse was "the deciding official" in the adverse action
against Ms. Roksvog (TR 73). His decision has not been appealed, or
made the subject of a grievance.
c. Mr. Muse acknowledged that there are several gradings of
punishment less than a suspension. See TR 80, Article 23 (3) (finding
4d, above) and FPM Chapter 751-3. /5/
15. In August or September, in preparing for the hearing in this
case, a search was conducted for the information sought in item 5 of the
Union's request for information. No documents were found. The Union
learned of this shortly before the hearing.
Discussion and Conclusions
Aside from the question of an appropriate remedy, the only issue
presented in this case is whether certain information requested by the
Union was "necessary and relevant" to its representation of a
bargaining-unit employee in an adverse action taken against her by
management. See GC Br 6, R Br 6 and TR 88-89. The preponderance of the
evidence /6/ establishes that the data requested here was necessary and
relevant, within the meaning of Section 7114 of the Statute (quoted in
footnote 2, above). Failure to furnish it, therefore, constituted an
unfair labor practice, as alleged in the complaint.
Section 7114(b)(4) of the Statute expressly grants the right, to an
exclusive representative, to data which is "necessary for the full and
proper discussion, understanding, and negotiation of subjects within the
scope of collective bargaining." See footnote 2, above, for the full
quotation. Falling within this scope is the union representation of a
bargaining unit employee prior to management's consideration of a
proposed adverse action, as provided for by the parties' negotiated
agreement. See, e.g., Internal Revenue Service, 9 FLRA No. 57, 9 FLRA
480, 481 (1982).
The necessity of item 3, set forth in finding 6, above, seems
obvious, on its fact. It sought the names of witnesses who served with
the employee charged with "poor performance and conduct," and who could
provide useful information to the Union in defending the employee. As
explained by the union steward, at the hearing, and to the deciding
official prior to the final denial of the request, this data would serve
another purpose as well, namely to show that the section in which the
employee worked was understaffed and the employee overworked, evidence
to which the employee was entitled, under the collective bargaining
agreement, in that it might serve to lessen the seriousness of the
charge and mitigate the penalty.
The necessity of item 5, set forth in finding 6, above, was also
established. It sought documentation of what actions the employee's
supervisor had taken in regard to paperwork found in the boxes, some of
which had required action for over two years, at the time the boxes were
discovered. The union steward testified at the hearing, and explained
to the deciding official prior to the final denial of the request, that
he needed this to address the requirement of graduated discipline. The
union steward defended the adverse action on the ground, partly, that
the supervisor was at fault, in failing "to adequately monitor the
employee" whom she had placed in a stressful situation. Under Article
23(e) of the agreement, failure of proper supervision of an employee
under stress could constitute mitigating circumstances which could
moderate the penalty proposed.
Had the union steward been told, prior to oral hearing on the matter
before Mr. Muse, and his written response, that there were no documents
showing that the supervisor of Ms. Roksvog had done anything to redress,
correct, or otherwise amend the mistakes charged to Ms. Roksvog, he
could have argued more persuasively that mitigating circumstances
existed to justify a less severe penalty for an otherwise concededly
exemplary, overworked employee.
Remedy
The General Counsel seeks a cease-and-desist order, an order to make
available to the Union information relevant to the processing of a
grievance or adverse action, and a posting of a notice at SEDO. See
Appendix A to the General Counsel's brief. All of the above is
appropriate relief, under the circumstances of this case, and will be
recommended.
The Union also seeks to have the suspension of Ms. Roksvog expunged
from her records, and made whole for the loss of pay for two days. See
TR 21-22 and 87-88. This relief is also appropriate.
The deciding official of Respondent, in this case, denied to the
union steward a list of potential witnesses, who could have provided
helpful information with which to defend against the serious charges
made against Ms. Roksvog. Respondent, itself, relief on statements
taken from two co-workers of Ms. Roksvog. There may have been other
co-workers who could have, for example, provided information that other
employees in OSU disobeyed instructions, on occasion-- one of the
charges upon which Ms. Roksvog was adjudged to be guilty. With this
lead, the Union might have discovered that these employees were verbally
chastised, and did not suffer a suspension. Under the contract's
provision for "like penalties . . . for like offenses" (finding 4d,
above), such evidence might have mitigated the penalty assessed against
Ms. Roksvog. Now, of course, so much time has passed since the period
involved (January 19, 1981 to May 24, 1982), that the memories of
witnesses would have became dim, and their assistance to Ms. Roksvog of
doubtful help.
Respondent's agent, in denying the request for all the information
sought, may have had some honest doubt as to the necessity of some of
the data, but not as to that which would have given the Union access to
potential witnesses.
Here, we have an admittedly exemplary and overworked employee
suffering a harsh penalty, suspension, when a lesser penalty might have
been imposed, had Respondent's agent shared with her Union
representative the names of co-workers during the period involved.
Co-workers in OSU were not a stable group, but moved in and out, as work
needs dictated. Therefore, Ms. Roksvog, suffering from stress and on
sedation while in OSU, could not be expected to rely upon her own memory
as to just who else worked with her in OSU, when faced with a charge, on
February 11, 1983, concerning her work in OSU during the period from
January 19, 1981 to May 24, 1982.
The Statute grants broad authority to remedy unfair labor practices,
including the ordering of back pay. See 5 U.S.C. 7118(7). Such relief
will be recommended along with expunging from the records of Ms. Roksvog
any mention of the suspension involved in this case.
Ultimate Findings and Recommended Order
Respondent has engaged in unfair labor practices, in violation of 5
U.S.C. 7116(a)(1), (5), and (8) by failing to comply fully with the
February 23, 1983 request of the Charging Party for information.
Accordingly, and pursuant to 5 U.S.C. 7118 and 5 CFR 2423.26, it is
hereby ordered that the Respondent shall:
1. Cease and desist from:
(a) Refusing or failing to furnish, upon request by the
American Federation of Government Employees, Local 3230, AFL-CIO,
all information which is necessary to this Union to discharge its
obligation as the exclusive representative to represent the
interests of all employees in the unit.
(b) In any like or related manner interfere with, restrain or
coerce over employees in the exercise of rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request, make available to the American Federation of
Government Employees, Local 3230, AFL-CIO, all information which
is necessary to enable this Union to discharge its obligation as
the exclusive representative to represent the interests of all
employees in the unit.
(b) Expunge from its records any reference to the suspension,
on March 31 and April 1, 1983, of Tora Roksvog and restore to her
any lost wages or benefits resulting from this suspension.
(c) Post at its Seattle District Office, copies of the attached
Notice. Copies of said Notice, to be furnished by the Regional
Director for Region IX, shall be signed by the District Manager
and posted by him immediately upon receipt, and remain posted for
60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said Notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region IX, in writing,
within 30 days from the date of this Order, as to what steps it
has taken to comply herewith.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: March 15, 1984
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 refuse or fail to furnish, upon request by the American
Federation of Government Employees, Local 3230, AFL-CIO, all information
which is necessary to enable Local 3230 to discharge its obligation as
agent of the exclusive representative to represent the interests of all
employees in the unit.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce employees in the exercise of rights assured by the Federal
Service Labor-Management Statute.
WE WILL, upon request, make available to Local 3230 all information
which is necessary to enable to discharge its obligation as the agent of
the exclusive representative to represent the interests of all employees
in the unit.
WE WILL expunge from our records any reference to the suspension, on
March 31 and April 1, 1983, of Tora Roksvog and restore to her any lost
wages or benefits resulting from this suspension.
(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 of compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region IX,
whose address is: 530 Bush Street, Suite 542, San Francisco, CA 94108
and whose telephone number is: (415) 556-8106.
--------------- FOOTNOTES$ ---------------
/1/ Respondent excepted to the Judge's finding as to the "necessity"
for certain information requested and the dicta pertaining thereto,
notwithstanding the fact that this information did not exist. The
Authority has previously held that an unfair labor practice may not be
based upon a denial of access to non-existent data. Division of
Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA
307, 320-21 (1982). Accordingly, Respondent was under no obligation to
honor the Union's request for non-existent data and its failure to
furnish such data was not violative of the Statute.
/2/ Section 7114 provides, in pertinent part, that:
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation-- . . .
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data--
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining . . . .
Section 7116 provides, in pertinent part, that:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter . . . or
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/3/ The following abbreviations will be used in this decision: "TR"
refers to the transcript. "GC" refers to the exhibits of the General
Counsel, and "U" to those of the Union. "Jt" refers to the joint
exhibit of the parties. "GCBr" refers to the brief filed by the General
Counsel, and "RBr" to that filed by the Respondent.
Unless otherwise specified, dates referenced herein occurred in 1983.
/4/ This finding is based on the testimony of Mr. Joyner, who
appeared to be an honest witness with a good recollection of the facts
relating to this case. Ms. Cross did not testify.
/5/ FPM Chapter 751-3, Subchapter 1, Part 1-2b provides that:
Any disciplinary action demands the exercise of responsible
judgment so that an employee will not be penalized out of
proportion to the character of the office; this is particularly
true of an employee who has a previous record of completely
satisfactory service. An adverse action, such as suspension,
should be ordered only after a responsible determination that a
less severe penalty, such as an admonition or reprimand, is
adequate.
See GC 11, page 1.
/6/ This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7).