[ v19 p267 ]
19:0267(39)CA
The decision of the Authority follows:
19 FLRA No. 39
LIBRARY OF CONGRESS
Respondent
and
AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES, AFL-CIO
LOCAL 2910
Charging Party
Case No. 3-CA-40116
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain of the unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge further found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended dismissal of the complaint with respect to them. Exceptions
to the Judge's Decision were filed by the Respondent and General
Counsel. The Respondent also filed a brief in opposition to the General
Counsel's 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 in this case, the Authority
hereby adopts the Judge's findings, conclusions and recommended Order as
modified below.
In agreement with the Judge's finding and rationale, the Authority
concludes that the Respondent had no obligation under section 7114(b)(4)
of the Statute to furnish, and therefore did not violate section
7116(a)(1), (5) and (8) of the Statute as alleged in the complaint, by
refusing to provide, information requested by the Union pertaining to
the representation of an employee in an adverse action appeal under
Agency regulatory appeal procedures. In reaching this conclusion, the
Authority notes, as did the Judge, that on September 22, 1983, a union
steward requested certain information from the Respondent on behalf of a
unit employee facing removal and that the purpose of the request was to
aid the steward in the processing of an adverse action appeal under the
Respondent's regulations and the possible filing of an Equal Employment
Opportunity (EEO) grievance or complaint. Further, the employee, on
October 6, 1983, elected to have his EEO discrimination complaint
processed under the Respondent's regulations rather than under the
parties' negotiated agreement. With regard to the issue of the Union's
entitlement to information under section 7114(b)(4) of the Statute for
purposes of representing the employee in his adverse action appeal, the
Authority concludes, in agreement with the Judge, that the Union's
involvement in the adverse action appeal was authorized by the
Respondent's regulations on the basis of its being selected by the
employee as his personal representative and was not predicated on any
right flowing from its status as the exclusive representative, and that
the Union was entitled only to those rights afforded the affected
employee by the Respondent's regulations. In this regard, when a forum
other than the negotiated grievance procedure is selected by the
employee, the Union is limited, in its role as a representative of the
employee, to the disclosure procedures available in the forum selected.
A union's right to act as an employee's representative must be read in
the context of the Statute as a whole which consistently distinguishes
between grievances and statutory appeals procedures (sections 7121(d)
and 7121(e) of the Statute) /1/ and between negotiated grievance
procedures and other forums (section 7114(a)(5)). /2/ See Bureau of
Government Financial Operations, Headquarters, 15 FLRA No. 87 (1984),
petition for review filed, National Treasury Employees Union v. FLRA,
No. 84-1493 (D.C. Cir. Oct. 1, 1984).
This approach to the interpretation of section 7114(b)(4), in
addition, insures that persons involved in regulatory procedures are
treated equally in that a nonunit employee or an employee who chooses
not to be represented by a union would have the same rights of discovery
in such procedures as an employee represented by a union official. In
this regard it is noted that agencies, like the Respondent herein, and
agencies concerned with statutory appeals, like the Office of Personnel
Management (OPM), the Merit Systems Protection Board (MSPB) and the
Equal Employment Opportunity Commission (EEOC), for example, have
promulgated rules to regulate discovery between the parties. /3/ These
regulations are designed to establish an orderly, evenhanded procedure
for the development and presentation of cases within their procedures.
The application of section 7114(b)(4) of the Statute to those processes
would not only interfere with this equity but also would arguably
disturb the efficient administration of these procedures by the agencies
involved. Thus, given the absence of clear language in the Statute or
its legislative history making section 7114(b)(4) applicable to the
representation of employees in agency regulatory proceedings, no such
intent will be inferred by the Authority.
With regard to the second aspect of this case, the request for
information to process the collateral discrimination complaint, the
Judge found that inasmuch as discrimination complaints were actionable
at the employee's option under the established negotiated grievance
procedure, the Union steward was entitled by virtue of section
7114(b)(4) of the Statute to the requested information. In making this
finding the Judge noted that the information request was made prior to
the election by the employee to pursue the matter of his alleged
discrimination through the Respondent's regulatory procedure. In such
circumstances, the Judge found the information was "necessary" within
the meaning of section 7114(b)(4) of the Statute since it was related to
the treatment of similarly situated employees. Thus, the Judge
concluded that the Respondent had failed to provide necessary
information to the Union in connection with the processing of a possible
grievance in derogation of its duty pursuant to section 7114(b)(4) of
the Statute and thereby also violated section 7116(a)(1), (5) and (8) of
the Statute.
The Authority disagrees. The Union's request for information of
September 22, 1983, which predated the employee's election to proceed
with his EEO complaint under agency regulations, was never denied by the
Respondent between the date of its submission and the date of the
employee's election on October 6, 1983. Rather, as found by the Judge,
the initial request was misplaced by the Respondent after it was logged
in by the Respondent's Office of Staff Relations and this fact was not
discovered by the Respondent until the inquiry by the Union
approximately three weeks later. When the Union was informed that its
request had been misplaced, it resubmitted the request on October 13,
1983, i.e., a week after the employee's election to proceed under the
Respondent's regulatory EEO procedures. Thus, the Authority finds from
the facts set forth in the Judge's decision that there is an
insufficient basis to find a refusal by the Respondent to furnish
information within the meaning of section 7114(b)(4) of the Statute with
regard to a possible grievance by the employee between September 22 and
October 6, 1983. The Authority finds also that the Respondent's
subsequent refusal to provide information was not a violation of the
Statute since, on October 6, the employee elected to use the agency
regulatory procedure rather than the negotiated grievance procedure to
process his complaint. Accordingly, the complaint herein will be
dismissed in its entirety.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-40116 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., July 25, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-40116
Martin F. O'Donoghue, Junior, Esquire
Christa McClure, Esquire
For the Respondent
Patricia Eanet Dratch, Esquire
For the General Counsel
Ms. Patricia van Ee
For the Charging Party/Union
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on December 20, 1983, by Local 2910,
American Federation of State, County and Municipal Employees, AFL-CIO,
(hereinafter called the Union), a Complaint and Notice of Hearing was
issued on February 29, 1984, by the Acting Regional Director for Region
III, Federal Labor Relations Authority, Washington, D.C. The Complaint
alleges that the Library of Congress, (hereinafter called the Respondent
or Library), violated Sections 7116(a)(1), (5) and (8) of the Federal
Service Labor-Management Relations Statute, hereinafter called the
Statute), by virtue of its actions in refusing to honor the Union's
request for certain information relating to the processing of a
bargaining unit employee's adverse action appeal and EEO complaint.
A hearing was held in the captioned matter on April 3, 1984, in
Washington, D.C. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel, the
Respondent and the Charging Party/Union submitted post-hearing briefs on
May 3, 1984, which have been duly considered. /4/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The Union is the exclusive collective bargaining representative of a
unit of professional employees working at the Library. The Union and
the Library are parties to a collective bargaining agreement. Article
XXIX of the Collective Bargaining Agreement entitled "Negotiated
Grievance Procedure" provides in Section 3 as follows:
The following matters, though not grievable under this article
are appealable through other procedures:
* * * *
(d) adverse actions (see LCR 2020-3)
Section 4, Article XXIX of the "Negotiated Grievance Procedure"
provides as follows:
An employee who charges the Library with discrimination on
account of race, color, sex, age, or non-disqualifying physical
handicap may file either a grievance or an appeal under LCR
2010-3.1, but not both. An employee shall be deemed to have
exercised his/her option at such time as the employee timely
initiates an action under the applicable regulation procedure or
timely files a grievance in writing, whichever occurs first.
Section 12, Article XXIX, of the "Negotiated Grievance Procedure"
provides in "Step Three. Referral to Arbitration" as follows:
A. If the response to Step Two is not acceptable, within twenty
(20) workdays the Guild may refer the grievance to arbitration in
accordance with the procedures set forth in this Agreement.
B. If the response in Step Two to a discrimination grievance
is not acceptable, within thirty (30) workdays the Guild may refer
a discrimination grievance to arbitration.
Section 9 of Article IV entitled "Equal Employment Opportunity"
provides as follows:
The Guild shall have the right to represent a complainant(s) in
proceedings under LCR 2010-3.1.
With regard to proceedings under LCR 2020-3, the Regulations dealing
with Adverse Actions, such Regulations provide that the affected
employee may, if she or he so chooses, be represented and/or advised by
a representative. The Regulations further provide that when the
grievant "designates a labor organization or other organization to act
as his/her representative, the individual named by the organization
shall be recognized as the "grievants representative." Further,
according to the Regulations, the grievant "shall be free to change the
designation of representative." Finally, according to the Regulations,
"the parties to such hearings shall be the grievant(s) or the
appellant(s) and the Library."
Article III of the Collective Bargaining Agreement entitled "Employee
Rights" provides in Section 20 as follows:
An employee shall have the right, upon request, to be
represented by a Guild steward or officer at a presentation of a
notice of adverse action proposed pursuant to LCR 2020-3.
In early December 1982, Mr. Vincent Jackson, who at the time was a
unit employee, contacted the Union seeking representation in an
anticipated adverse action. At that time it was decided that Union
Steward Mary Ann Joyce would represent Mr. Jackson. Subsequently, on or
about December 15, 1982, Mr. Jackson was formally served with a "Notice
of Proposed Adverse Action." Shortly thereafter, on December 20, 1982,
Ms. Joyce filed an "Employee Designation of Representative Grievance and
Appeals Systems form with the Respondent which designated Ms. Joyce as
Mr. Jackson's representative with respect to (his) "appeal of the
proposed adverse action dated 12/15/82." The form merely set forth Ms.
Joyce's name without any title or union affiliation. According to Ms.
Joyce, she left out both her title and union affiliation since she
thought that such information was superfluous since every one knew of
her union affiliation and the fact that she had appeared as a union
representative in past adverse action proceedings. Further, according
to the uncontested testimony of Ms. Joyce, in answer to an inquiry to
Staff Relations, she had been informed that there was no necessity for
setting forth her title or union affiliation since all Staff Relations
"really wanted was the name of somebody to contact, so they'd know who
to talk to in the case."
On September 1, 1983, Respondent issued a decision wherein it decided
to terminate the employment of Mr. Jackson. On or about September 16,
1983, Mr. Richard L. Friedman, an outside private attorney, filed on
behalf of Mr. Jackson a "Notice of Appeal and Request For Hearing" on
the adverse action and a new "Employee Designation of Representative
Grievance and Appeals Systems." Both of the aforecited documents bore
Mr. Jackson's signature. The Designation of Representative identified
Mr. Friedman as "an attorney of my choosing" and Ms. Joyce as a "Guild
Steward."
On September 22, 1983, the Union sent a memorandum to Respondent's
Staff Relations Office under the names of Ms. Joyce and Union Steward
Shollenberger. The memorandum which was entitled: "Re adverse action
Vincent Jackson" read as follows:
Information Request for Period of time January to the present
Per Title 5 UFC 7114, AFSME 2910 requests the following
information on behalf of Vincent Jackson.
1. All EEO complaints filed which mention Share Cat. Division,
Processing Services and/or personnel employed therein; to include
a list of complainants and their grades.
2. All employees released from duty due to failure to perform
in a position; to include a list of names by position and grade.
3. All requests for transfer; to include a list of names by
position and grade.
4. All employees who have transferred from Share Cat. to
another area of LC; to include a list of names by position and
grade.
Your immediate attention is requested in this matter. Please
provide the above listed information in a timely manner not to
exceed two weeks.
Approximately three weeks later, Ms. Joyce approached Respondent's
office of Staff Relations and inquired about the requested information
which had not been supplied. Mr. Leonard Scott of Staff Relations
informed her that her request for information had been logged in but
they were unable to find a copy of the request. He further informed Ms.
Joyce that in a few days all matters dealing with adverse actions were
to be transferred to the Office of the Legal Advisor. The meeting ended
with Ms. Joyce agreeing to resubmit her September 22 request for
information. Ms. Joyce subsequently resubmitted the request on October
13, 1983.
Further, according to the uncontested testimony of Ms. Joyce, Ms.
Joyce and Mr. Friedman met in late September or early October 1983 with
representatives of the EEO office for purposes of timely advising such
office of their intent to perfect an EEO complaint on behalf of Mr.
Jackson. /5/ They subsequently again met with Ms. Dorenna Thomas of the
EEO office in November at which time they stated the basis of their
complaint.
On October 19, 1983, Mr. Peter Watters, Legal Adviser, Pers. replied
to the resubmitted information request as follows:
Responsibility for the adverse action program has been
transferred to my office as of October 17, 1983. . . .
It is the policy of this office to defer handling of
information requests concerning appeals until a hearing officer
has been selected and a hearing date scheduled. As you know,
there is a period of several months between the filing of an
appeal and the actual hearing. Responding to premature requests
for information affects our handling of cases already scheduled to
the detriment of the appellants therein.
I am therefore returning your memorandum and request that you
re-submit it when the hearing date has been set. We will respond
in ample time for you to prepare your case.
On or about October 28, 1983, Ms. Joyce in her capacity as "Guild
Steward" sent a memorandum on union stationery to Labor Relations
Officer Martin O'Donoghue entitled "Compliance with Title 5 USC 7114
regarding Vincent Jackson." In the memorandum Ms. Joyce renewed and
enclosed her prior requests for information and further requested that
Mr. O'Donoghue "secure access . . . to Mr. Jackson's file . . . for
myself and my co-representative in the adverse action appeal and Mr.
Jackson's EEO complaint."
In December of 1983 Ms. Joyce and Union Steward Shollenberger met
with Mr. Lou Mortimer, Director of Personnel and Mr. Peter Watters, his
legal counsel, for purposes of discussing Mr. Jackson's adverse action.
During the meeting Ms. Joyce presented Respondent's representatives a
copy of a memorandum entitled "Points And Authorities In Support Of
Complaint Of Vincent A. Jackson That Dismissal Was The Result Of
Discrimination Because Of Mr. Jackson's Race And Sex." According to Ms.
Joyce, the memorandum had been prepared by herself and Mr. Friedman and
had been given to the EEO Office several days earlier.
On or about January 21, 1984, Ms. Joyce and Mr. Friedman met with Mr.
Watters for purposes of discussing Mr. Jackson's case.
During the course of the meeting Mr. Watters made it clear that he
would be willing to respond to an information request from Mr. Friedman
if it was not made pursuant to 5 USC 7114 and he, Mr. Watters, was
allowed to delete names. Ms. Joyce, however, held fast to her position
that she was entitled to the requested information pursuant to Section
7114 of the Statute.
On January 30, 1984, Mr. Friedman submitted his own request for
information to Mr. Watters.
On February 27, 1984, Watters responded to Ms. Joyce's pending
requests for information as follows:
The foregoing is my initial response to your information
request concerning Mr. Jackson. As you know, the hearing in this
matter has been scheduled for April 13 and April 18, 1984, and we
have received a comparable request for information from Richard
Friedman, Esq. on behalf of Mr. Jackson. We do not recognize the
applicability of 5 USC 7114 to our adverse action process, but are
responding in accordance with our applicable practices with
respect to discovery in such cases. Should you wish to contest
our response, you may raise the matter with the hearing examiner
that has been appointed in this case. There now follows specific
items involved in your request and our response to each:
1. All EEO complaints filed, which mention Shared Cataloging
Division, Processing Services and/or any personnel employed
therein; to include a list of names of complainants and their
grades.
We cannot provide information on all EEO complainants which
mention the Shared Cataloging Division, since such information is
not normally maintained in the regular course of business and such
records are not reasonably available; nor are they necessary for
full and proper discussion of the issues in this case. We refuse
to disclose the names of complainants, since to do so would
constitute a violation of LCR 1917-3 Section 4A(a) in that such
action would constitute a clearly unwarranted invasion of privacy.
We are, however, providing copies of formal and informal
complaints filed against supervisors in the Shared Cataloging
Division for the period in question. Names of the complainants
involved will be deleted.
2. All employees released from duty due to failure to perform
in a position; to include a list of names by position and grade.
We interpret your request to mean all employees of the Library
of Congress. The information will be provided, but the names will
be deleted for the reasons stated above.
3. All requests for transfer; to include a list of names by
position and grade.
We interpret this request to mean all requests for transfer
within the Library of Congress. We decline to provide this
information because it is not normally maintained in the regular
course of business, it is not reasonably available, and is not
necessary for full and proper discussion of the issues in this
case. We will, however, make available information on requests
for transfers made by employees of the Shared Cataloging Division
for the period in question, but will not provide the names of
those employees for the reasons stated above.
4. All employees who have transferred from the Shared
Cataloging Division to another area of LC; to include a list of
names by position and grade.
This information will be provided with the exception of the
names of the employees. We decline to include a list of the names
for the reasons stated above.
On or about March 22, 1984, Ms. Joyce was notified that the packet of
information that she had requested was available in the Office of the
Legal Advisor. Upon appearing at the Office of Legal Advisor she was
informed that there were two packets of materials, one for her and one
for Mr. Friedman. She was further informed that the packets were
identical and asked to sign a certificate of service, for the packet
assigned to her. Upon examining the packet prepared for her, Ms. Joyce
noticed that a number of items were missing from the requested
materials, namely various referenced attachments and back pages of many
exhibits. Ms. Joyce refused to sign the certificate of service and on
the next day wrote a letter to Mr. Watters stating as follows:
The notice of what your office promised to furnish (dated
2/27/84) is not adequate response to our request. When called to
your office on March 22, 1984, the materials offered were not in
compliance with your response to my request (since pages with
substantive passages were missing) and inadequate for the purpose
intended. I am still waiting for those pages to be secured so
that the package you promised to furnish can be completed for my
pickup as soon as possible.
Please note that neither the response of Feb. 27, 1984 nor the
attempt to deliver incomplete materials relieves the Library of
its responsibility pursuant to 5 USC 7114. Once again, meeting
the information request for Mr. Friedman in no way satisfies the
Library's obligation to the Guild in connection with the ULP.
On March 26, 1984, Ms. Joyce received the missing pages that she had
complained about. However, according to Ms. Joyce the complete package
of information supplied did not comply with her September 22, 1983
request for information. Thus, Ms. Joyce testified as follows:
We asked for information, for example, on discrimination
complaints involving Shared Cataloging Division and the whole
Processing Services Department. We did not receive the
information; we received information on only complaints filed
against Mr. Hugo Christianson, not even for other Shared
Cataloguing Division management officials. We asked for the names
of the complainants, and we did not get that. . . . Because we
needed to be able to interview these people about their cases so
that we could find out exactly what went on and what information
would bear on the adverse action complaint and the EEO complaint.
. .. Items 2 and 3 on the September 22nd information request were
Library-wide. We did not receive Library-wide information; we
received information on people released from duty for failing to
perform only in the Shared Cataloging Division. And similarly, we
received only requests for transfer regarding Shared Cataloging
Division. And we received-- we asked for information in the last
item about employees who transferred from Shared Cataloging to
another area of the Library. We did get information of this sort,
but the way the information was supplied would have precluded
being able to identify individuals or even identify information
from one segment of the request to another.
Mr. Peter Watters, Counsel for Personnel in the Personnel Office,
testified that his office "was responsible for the appeals process and
for trying adverse action cases on appeal." Additionally, according to
Mr. Watters' uncontested testimony, the Office of Personnel represents
the individual managers accused of discrimination in violation of the
EEO program.
With respect to adverse actions, Mr. Watters testified that such
proceedings are governed by the Library of Congress regulations and that
the only parties to such proceedings are the Library and the affected
employee. While an affected employee has a right in both an Adverse
Action proceeding and an EEO proceeding to choose his own personal
representative, which may be a union agent, a private attorney, etc.
such representative does not get any greater rights than those accorded
the affected employee under the applicable regulations governing the
proceedings. While acknowledging that Ms. Joyce had made a request for
information with respect to Mr. Jackson's adverse action, Mr. Watters
denied ever receiving a request for information concerning Mr. Jackson's
EEO discrimination case. However, he does acknowledge talking to Ms.
Joyce in December of 1983 and January 1984 about the EEO matter and
instructing her that the proper place to file materials concerning EEO
matters was the EEO Complaint Office. In answer to a question from the
General Counsel, Mr. Watters admitted that there was no written
instruction providing for the filing of EEO materials with the EEO
Complaint Office. Subsequent to the above conversations he drafted a
memorandum to Ms. Joyce wherein he informed her that he was referring
her "points and authorities" memorandum to the EEO Complaint Office.
With respect to Respondent's practice in the area of supplying
information requested by an employee's union representative in
connection with an adverse action or discrimination proceeding, Mr.
Watters testified that it was the Respondent's practice to apply the
Federal Rules with respect to discovery to such requests and make the
requested information available at least two weeks prior to the
scheduled hearing in the matter. Further, according to Mr. Watters, if
Respondent was not going to satisfy the "entire request" for
information, it then makes a "preliminary response" which enables the
requesting party to bring the matter up before the hearing officer prior
to the hearing. The hearing officer then decides the merits of the
request. Inasmuch as Respondent has approximately 22-30 appeals a year,
it does not assign an attorney to the appeal until such time as the case
is set for hearing, and therefore does not handle any information
requests prior to such time. In support of Mr. Watters testimony
concerning the aforementioned practice, Respondent submitted into
evidence a number of case files involving other adverse action appeals
wherein requested information was not supplied until approximately two
weeks before the scheduled hearing.
Discussion and Conclusions
The General Counsel and the Union take the position that Respondent
violated Sections 7116(a)(1), (5) and (8) of the Statute by virtue of
its action in failing to make all the requested information available to
the Union. In support of the above position the General Counsel and the
Union rely on certain portions of the record which they contend supports
the conclusion that the requests for information were made by Ms. Joyce
not as an individual but rather in her capacity as Union steward. In
such circumstances and since the Union has a "broad right pursuant to
Section 7114(b)(4) of the Statute" for all relevant information in
Respondent's possession necessary for the Union to perform its statutory
duties and responsibilities, Respondent violated the Statute by not
supplying all the requested information. The Union and the General
Counsel further contend that the record makes it clear that the Union
was seeking the information not only for the adverse action appeal of
Mr. Jackson but also for the possible filing of an EEO complaint. In
support of their position with respect to the entitlement of the Union
to the information with respect to the adverse action proceeding, the
General Counsel and the Union rely, in the main, on the Authority's
decisions in IRS, Jacksonville District, 1 FLRA 265, and IRS, Western
Region, San Francisco, California, 9 FLRA 480.
Respondent, on the other hand, while acknowledging that a union has a
broad right pursuant to Section 7114(b)(4) of the Statute to information
within Respondent's possession which is relevant and necessary for the
union to properly perform its statutory duties and responsibilities,
takes the position that under the circumstances of the instant case the
Union's Section 7114(b)(4) rights were not applicable, and that
Respondent was not in violation of the Statute in refusing to give the
Union all the requested material. Thus, Respondent takes the position
that Ms. Joyce was not acting in her position as Union steward when she
made the requests for information, that the requests for information did
not encompass EEO matters, and that in any event, a Union's Section
7114(b)(4) right to information does not extend to forums or proceedings
outside the negotiated grievance procedure. Additionally, Respondent
would find the cases relied upon by the General Counsel to be
distinguishable since the proceedings in such cases were clearly covered
by the negotiated collective bargaining agreement.
In view of the above stated positions of the parties, it is obvious
that basic to the resolution of the instant complaint are determinations
with respect to (1) the status of Ms. Joyce at the time the requests for
information were made, i.e. was she acting as an individual
representative or in her capacity as a Union steward, (2) the extent
and/or basis for the requests for information, i.e. was the request
solely for purposes of processing the adverse action or did it also
include the possibility of an EEO complaint, and (3) if Ms. Joyce was in
fact acting in her capacity as a duly appointed Union steward, the
extent to which the Union's right to information under Section
7114(b)(4) applies to forums other than the negotiated grievance
procedure.
With respect to the status of Ms. Joyce at the time the requests for
information were made, I find, contrary to the contention of the
Respondent that Ms. Joyce requested the information not as an individual
but rather in her capacity as a duly appointed Union steward. In
reaching this conclusion I rely on her credited testimony to this effect
and the fact that just about all her communications to Respondent
concerning the requests for information were on stationery bearing the
Union letterhead and all bore her title as Union steward after her name.
Additionally, as authority for the requests she cited Section 7114 of
the Statute.
I further find that the Union's requests for information clearly
indicated that one of the purposes for same was the possible filing of
an EEO complaint. In reaching this conclusion I rely on the first
paragraph of the September 22, 1983 letter to Leonard Scott of Staff
Relations, the second paragraph of the October 28, 1983 memorandum to
Martin O'Donoghue, Labor Relations Officer and the first paragraph of
the January 1, 1984 memorandum to Mr. Watters. Additionally, it is
noted that Ms. Joyce and Mr. Friedman met with representatives of the
EEO office in late September and early October, 1983, for purposes of
informing such office of their intent to perfect an EEO complaint on
behalf of Mr. Jackson. In view of the foregoing I find that the
requests for information filed by Ms. Joyce in her capacity as Union
steward were not solely for purpose of perfecting the adverse action
appeal of Mr. Jackson, as contended by the Respondent. Rather, I find
that the requests also encompassed material necessary for the
consideration of a possible EEO complaint. To the extent that there
might have been some doubt in the minds of Respondent's representatives
with respect to the basis of the request, I find that any such doubts
should have been resolved in the subsequent discussions with EEO office
representatives.
Having concluded that Ms. Joyce was acting in her capacity as Union
steward and that her requests for information were for the dual purpose
of processing both an adverse action and an EEO complaint, the sole
issue remaining for resolution is the entitlement of the Union to the
requested information under Section 7114(b) of the Statute. Or stated
another way, does the Union's right to information under Section 7114(b)
of the Statute extend to forums other than those created by the
collective bargaining process. /6/
As noted above, the General Counsel and the Charging Party would
answer the question in the affirmative. However, as pointed out by
Respondent, an analysis of the cases relied upon by the General Counsel
/7/ indicates that the facts underlying such cases are clearly
distinguishable from the facts presented herein.
In IRS Jacksonville, supra, the Respondent proposed the termination
of a probationary employee. Pursuant to an article of the collective
bargaining agreement applicable to the proposed termination of
probationary employees, the Union requested a meeting to discuss the
matter. In order to prepare for the meeting the Union requested certain
data concerning the probationary employee and six other similarly
situated probationary employees for purposes of comparing their work
records and to demonstrate that the probationary employee which the
Respondent proposed to terminate was not less productive, etc., than the
other six probationary employees retained. Respondent's refusal to make
the requested information available to the Union was found to be
violative of Sections 19(a)(1) and (6) of Executive Order 11491, as
amended.
In IRS, Western Region, San Francisco, California, supra, the
Respondent proposed to suspend an employee for 30 days for infraction of
a rule or regulation. Pursuant to a provision of the collective
bargaining agreement in effect dealing with proposed adverse actions,
the Union which was designated by the affected employee as his
representative requested copies of all adverse or disciplinary actions
for the past three years within the Respondent's Region dealing with
similar violations as those allegedly committed by the affected
employee. In finding that the Respondent violated Sections 7116(a)(1)
and (5) of the Statute by failing to make the information available to
the Union as requested under 7114(b) of the Statute, the Authority
stated as follows:
The Union was entitled to such data to enable it to properly
represent a unit employee at an oral hearing prior to management's
consideration of a proposed adverse action, which hearing is
provided for in the negotiated agreement.
Neither of the above cited cases involve employee representation at
forums apart from those envisioned, contemplated and/or established by
virtue of the Union's status as exclusive bargaining representative. In
fact, in both of the above cited cases the Unions there involved, were
pursuing rights provided for in the respective collective bargaining
agreements. Neither case stands for the proposition that the Union's
Section 7114(b) right to information extends to forums which exist apart
from the Union's selection as exclusive collective bargaining
representation. They do, however, stand for the proposition that in
adverse action cases, information concerning similarly situated
employees is "necessary" for a Union to carry on its representational
responsibilities.
A review of past authority decisions dealing with requests for
information under Section 7114(b) of the Statute fails to disclose any
case which is directly in point with respect to the facts presented
herein. Rather, such cases generally deal with requests for information
necessary (1) to consider and/or process grievances under the negotiated
grievance procedure (2) to formulate proposals concerning conditions of
employment, and (3) to police the provisions of the collective
bargaining contract, all of which fall within the responsibilities
imposed upon a union by virtue of its certification or recognition as
the exclusive representative of a unit of employees.
In the area of grievances, the union normally has the sole authority
for invoking arbitration, the last step in the grievance procedure.
Having such authority and representational responsibility associated
therewith, the union has in all cases been entitled to all information
necessary and relevant to carrying out such responsibility in an
intelligent manner. Absent such responsibility, the union would not be
entitled to the information. The responsibility runs with the
certification.
In the instant case the collective bargaining agreement specifically
excludes adverse actions from the coverage of the negotiated grievance
procedure and makes same appealable only through procedures established
by Respondent's regulations. With respect to EEO complaints, the
discriminatee has the option of processing same under either the
grievance procedure or procedures established by Respondent's
regulations. The contractual provision further provides that the
affected employee "shall be deemed to have exercised such option" at
such time as he initiates an action under the applicable regulation
procedure or files a grievance in writing. As noted above in footnote
3, Mr. Jackson subsequently opted to have his EEO complaint processed
under the Respondent's EEO regulation procedure.
The applicable Library of Congress regulation dealing with adverse
actions indicates that the only parties to such action will be the
grievant or appellant and the Library. Further to the extent that an
affected employee chooses to designate a labor organization as his
representative, the individual named as the labor organization's agent
appears solely as the grievant's personal representative.
In view of the foregoing it is clear, and I so find, that the Union's
presence at an adverse action appeal processed pursuant to the Library's
existing regulation is not predicated on any right flowing from its
status as exclusive representative, but rather solely on the basis of
being selected by the affected employee as his personal representative.
In such circumstances the Union, not appearing in its capacity as an
exclusive representative, is only entitled to the rights afforded the
affected employee under the regulations.
Accordingly, based upon the above findings and conclusions, I further
conclude that the Union's Section 7114(b) rights were not actionable
and/or applicable to adverse action appeals being processed under
Respondent's regulations and that Respondent's failure to comply fully
with Ms. Joyce's request for information with respect to Mr. Jackson's
adverse action appeal was not violative of Sections 7116(a)(1), (5) and
(8) of the Statute. In line with this conclusion, I recommend that this
aspect of the complaint be dismissed in its entirety.
Turning now to the second aspect of the case, i.e. the request for
information necessary to process Mr. Jackson's collateral discrimination
complaint, I find that inasmuch as discrimination complaints were
actionable at the employee's option under the established grievance
procedure, Ms. Joyce, in her capacity as Union steward, was entitled by
virtue of Section 7114(b) of the Statute to the requested information.
In reaching this conclusion I note that the request for information was
made prior to the time that Mr. Jackson had made his election to pursue
the matter of his discrimination through the Respondent's regulatory
procedure, rather than the established grievance procedure. In such
circumstances the information sought was in connection with an incipient
grievance. Inasmuch as a union is entitled to information on similarly
situated employees under Section 7114(b) in connection with incipient
grievances, I find that by failing to supply the Union with the
requested information Respondent violated Sections 7116(a)(1), (5) and
(8) of the Statute. /8/ Internal Revenue Service, Jacksonville
District, supra; Department of the Navy, Portsmouth Naval Shipyard, 4
FLRA No. 82.
Having concluded that the Respondent violated Sections 7116(a)(1),
(5) and (8) of the Statute by failing to honor the Union's request for
information necessary for the intelligent consideration of a possible
EEO complaint on behalf of Mr. Jackson, it is recommended that the
Federal Labor Relations Authority issue the following order:
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 Library of Congress shall:
1. Cease and desist from:
(a) Refusing to furnish to the American Federation of State,
County and Municipal Employees, AFL-CIO, Local 2910 the documents
and material requested by it on September 22, 1983, and any other
material which is reasonably available and necessary to enable the
Union, as the exclusive representative of the Respondent's
employees, to discharge its representational obligation to
employee Vincent Jackson or any other unit employee.
(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 State,
County and Municipal Employees, AFL-CIO, Local 2910 the documents
and material requested by it on September 22, 1983, and any other
material which is reasonably available and necessary to enable the
Union, as the exclusive representative of the Respondent's
employees, to discharge its representational obligation to
employee Vincent Jackson or any other unit employee.
(b) Post at its facilities at its Washington, DC 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 a responsible official 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
responsible official shall take reasonable steps 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 III, 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.
BURTON S. STERNBURG
Administrative Law Judge
Dated: July 12, 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 to furnish to the American Federation of State,
County and Municipal Employees, AFL-CIO, Local 2910, the documents and
material requested by it on September 22, 1983, and any other material
which is reasonably available and necessary to enable the Union, as the
exclusive representative of our employees, to discharge its
representational obligation to employee Vincent Jackson or any other
unit employee. WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of rights assured by
the Statute. WE WILL, upon request, furnish to the American Federation
of State, County and Municipal Employees, AFL-CIO, Local 2910, the
documents and material requested by it on September 22, 1983, and any
other material which is reasonably available and necessary to enable the
Union as the exclusive representative of our employees, to discharge its
representational obligation to employee Vincent Jackson or any other
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 of compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region III, whose address is:
111 - 18th Street, Suite 700, P.O. Box 33758, Washington, DC 20033-0758,
and telephone number is: (202) 653-8456.
--------------- FOOTNOTES$ ---------------
/1/ Section 7121(d) and (e) provides:
(d) An aggrieved employee affected by a prohibited personnel
practice under section 2302(b)(1) of this title which also falls
under the coverage of the negotiated grievance procedure may raise
the matter under a statutory procedure or the negotiated
procedure, but not both. An employee shall be deemed to have
exercised his option under this subsection to raise the matter
under either a statutory procedure or the negotiated procedure at
such time as the employee timely initiates an action under the
applicable statutory procedure or timely files a grievance in
writing, in accordance with the provisions of the parties'
negotiated procedure, whichever event occurs first. Selection of
the negotiated procedure in no manner prejudices the right of an
aggrieved employee to request the Merit Systems Protection Board
to review the final decision pursuant to section 7702 of this
title in the case of any personnel action that could have been
appealed to the Board, or, where applicable, to request the Equal
Employment Opportunity Commission to review a final decision in
any other matter involving a complaint of discrimination of the
type prohibited by any law administered by the Equal Employment
Opportunity Commission.
(e)(1) Matters covered under sections 4303 and 7512 of this
title which also fall within the coverage of the negotiated
grievance procedure may, in the discretion of the aggrieved
employee, be raised either under the appellate procedures of
section 7701 of this title or under the negotiated grievance
procedure, but not both. Similar matters which arise under other
personnel systems applicable to employees covered by this chapter
may, in the discretion of the aggrieved employee, be raised either
under the appellate procedures, if any, applicable to those
matters, or under the negotiated grievance procedure, but not
both. An employee shall be deemed to have exercised his option
under this subsection to raise a matter either under the
applicable appellate procedures or under the negotiated grievance
procedure at such time as the employee timely files a notice of
appeal under the applicable appellate procedures or timely files a
grievance in writing in accordance with the provisions of the
parties' negotiated grievance procedure, whichever event occurs
first.
(2) In matters covered under sections 4303 and 7512 of this
title which have been raised under the negotiated grievance
procedure in accordance with this section, an arbitrator shall be
governed by section 7701(c)(1) of this title, as applicable.
/2/ Section 7114(a)(5) provides:
(5) The rights of an exclusive representative under the
provisions of this subsection shall not be construed to preclude
an employee from--
(A) being represented by an attorney or other representative,
other than the exclusive representative, of the employee's own
choosing in any grievance or appeal action; or
(B) exercising grievance or appellate rights established by
law, rule, or regulation;
except in the case of grievance or appeal procedures negotiated
under this chapter.
/3/ See OPM regulations at 5 C.F.R. 752.404(c) (1984); MSPB
regulations at 5 C.F.R. 1201.71-.81 (1984); and EEOC regulations at 29
C.F.R. 1613.216-.218 (1984).
/4/ In the absence of any objection, the General Counsel's Motion To
Correct Transcript is hereby granted. It is further Ordered that
Respondent's post hearing motion to strike the Charging Party's post
hearing brief solely on the ground that service of a courtesy copy of
the brief on Respondent was not effected simultaneously with the timely
filing of same with the undersigned, be denied. While the Charging
Party's inadvertence is not to be condoned, in the absence of any
showing of prejudice, I find that the requested penalty of "striking"
the post hearing brief is not in order.
/5/ Vincent Jackson filed an "Employee Designation of Representative
(pursuant to LCR 2010-3.1)" on Oct. 6, 1983. The designation named
"Mary Ann Joyce and Richard Friedman" as his representatives. Ms.
Joyce's union affiliation did not appear after her name.
/6/ By filing an employee designation on October 6, 1983, pursuant to
LCR 2010-3-3.1, Mr. Jackson indicated his election to have his EEO
discrimination complaint processed under Respondent's regulations rather
than under the negotiated grievance procedure.
/7/ IRS Jacksonville District and IRS Western Region, San Francisco,
supra.
/8/ To the extent Respondent relies on the Library's regulation
dealing with "privacy" as a defense to the Union's request for certain
information, I find such defense to be without merit. Veterans
Administration Regional Office, Denver, Colorado, 7 FLRA 629 and 10 FLRA
453.