[ v01 p266 ]
01:0266(35)CA
The decision of the Authority follows:
1 FLRA No. 35
INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT,
JACKSONVILLE, FLORIDA
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Complainant
Assistant Secretary
Case No. 42-4117(CA)
DECISION AND ORDER
ON DECEMBER 20, 1978, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
FINDING THAT THE RESPONDENT HAD VIOLATED SECTION 19(A)(1) AND (6) OF
EXECUTIVE ORDER 11491, AS AMENDED, AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THEREAFTER, THE RESPONDENT AND THE COMPLAINANT FILED EXCEPTIONS AND
SUPPORTING BRIEFS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LA0OR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, INCLUDING THE PARTIES' EXCEPTIONS AND SUPPORTING BRIEFS, WE HEREBY
ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. /1/
ORDER
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT, JACKSONVILLE,
FLORIDA, SHALL:
1. CEASE AND DESIST FROM:
(A) WITHHOLDING OR FAILING TO PROVIDE, UPON REQUEST BY THE NATIONAL
TREASURY EMPLOYEES
UNION, ANY INFORMATION BEARING UPON THE WORK PERFORMANCE OF ANY OR
ALL OF ITS PROBATIONARY
EMPLOYEES, IN CONNECTION WITH REPRESENTING A PROBATIONARY EMPLOYEE AT
ANY MEETING CALLED TO
CONSIDER THE LATTER'S PROPOSED TERMINATION, WHICH IS RELEVANT AND
NECESSARY TO ENABLE THE
NATIONAL TREASURY EMPLOYEES UNION TO DISCHARGE ITS OBLIGATION AS THE
EXCLUSIVE REPRESENTATIVE
TO REPRESENT EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED
UNIT.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY EMPLOYEES
UNION ALL INFORMATION
BEARING UPON THE WORK PERFORMANCE OF ANY OR ALL OF ITS PROBATIONARY
EMPLOYEES, IN CONNECTION
WITH THE SEPARATION OF PHYLLIS D. GRUBBS, A PROBATIONARY EMPLOYEE,
WHICH IS RELEVANT AND
NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES UNION TO
DISCHARGE ITS OBLIGATION TO
REPRESENT EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED
UNIT.
(B) AFTER RECEIPT BY THE NATIONAL TREASURY EMPLOYEES UNION OF THE
RELEVANT AND NECESSARY
INFORMATION REFERRED TO IN SECTION 2(A) ABOVE, UPON REQUEST, MEET
WITH THE NATIONAL TREASURY
EMPLOYEES UNION PURSUANT TO ARTICLE 32 OF THE PARTIES' NEGOTIATED
AGREEMENT CONCERNING THE
DECISION TO SEPARATE PHYLLIS D. GRUBBS.
(C) POST AT ITS JACKSONVILLE, FLORIDA, DISTRICT OFFICE, COPIES OF THE
ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
RELATION" AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR OF THE
JACKSONVILLE, FLORIDA,
DISTRICT, AND THEY SHALL BE POSTED AND MAINTAINED Y HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY
POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE 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 9, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT WITHHOLD OR FAIL TO PROVIDE, UPON REQUEST BY THE NATIONAL
TREASURY EMPLOYEES UNION, ANY INFORMATION BEARING UPON THE WORK
PERFORMANCE OF ANY OR ALL OF OUR PROBATIONARY EMPLOYEES, IN CONNECTION
WITH REPRESENTING A PROBATIONARY EMPLOYEE AT ANY MEETING CALLED TO
CONSIDER THE LATTER'S PROPOSED TERMINATION, WHICH IS RELEVANT AND
NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES UNION TO DISCHARGE
ITS OBLIGATION AS THE EXCLUSIVE REPRESENTATIVE TO REPRESENT EFFECTIVELY
ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED 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
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY
EMPLOYEES UNION ALL INFORMATION BEARING UPON THE WORK PERFORMANCE OF ANY
OR ALL OF ITS PROBATIONARY EMPLOYEES, IN CONNECTION WITH THE SEPARATION
OF PHYLLIS D. GRUBBS, A PROBATIONARY EMPLOYEE, WHICH IS RELEVANT AND
NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES UNION TO DISCHARGE
ITS OBLIGATION TO REPRESENT EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNIT.
WE WILL, UPON REQUEST, AND AFTER THE RECEIPT OF THE RELEVANT AND
NECESSARY INFORMATION BY THE NATIONAL TREASURY EMPLOYEES UNION, MEET
WITH THE NATIONAL TREASURY EMPLOYEES UNION, PURSUANT TO ARTICLE 32 OF
OUR NEGOTIATED AGREEMENT, CONCERNING THE DECISION TO SEPARATE PHYLLIS D.
GRUBBS.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
1365 PEACHTREE STREET, N.E., SUITE 540, ATLANTA, GEORGIA 30309.
HARRY G. MASON, ESQ.
INTERNAL REVENUE SERVICE
SOUTHEAST REGION
P.O. BOX 1074
ATLANTA, GEORGIA 30301
FOR THE RESPONDENT
WILLIAM HARNESS, ESQ.
NATIONAL TREASURY EMPLOYEES UNION
SUITE 930, 3445 PEACHTREE ROAD, N.E.
ATLANTA, GEORGIA 30326
FOR THE COMPLAINANT
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
CASE NO. 42-4117(CA)
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON AUGUST 8, 1978
BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICE OF THE U.S.
DEPARTMENT OF LABOR, ATLANTA REGION, A HEARING WAS HELD BEFORE THE
UNDERSIGNED IN THIS CASE ON SEPTEMBER 26, 1978 AT JACKSONVILLE, FLORIDA.
THIS PROCEEDING ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER). A COMPLAINT WAS FILED ON DECEMBER 27, 1977
BY NATIONAL TREASURY EMPLOYEES UNION (HEREIN CALLED THE COMPLAINANT)
AGAINST JACKSONVILLE DISTRICT, INTERNAL REVENUE SERVICE, JACKSONVILLE,
FLORIDA (HEREIN CALLED THE RESPONDENT). THE COMPLAINT ALLEGED THAT
RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER BY REFUSING,
UPON A REQUEST MADE ON AUGUST 24, 1977 BY COMPLAINANT, TO FURNISH
SANITIZED INFORMATION REGARDING OTHER EMPLOYEES WHICH WAS NECESSARY AND
RELEVANT TO DEFEND A PROBATIONARY EMPLOYEE WHOM RESPONDENT PROPOSED TO
TERMINATE. RESPONDENT FILED AN ANSWER ON JANUARY 16, 1978 DENYING THE
COMMISSION OF ANY UNFAIR LABOR PRACTICES. IT ALSO RAISED SEVERAL
DEFENSES WHICH WILL BE ADVERTED TO HEREIN BELOW. /2/
BOTH PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE
EVIDENCE, AND TO EXAMINE AS WELL AS CROSS-EXAMINE WITNESSES.
THEREAFTER, BRIEFS WERE FILED BY BOTH PARTIES WHICH HAVE BEEN DULY
CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND BASED ON ALL THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND
RECOMMENDATIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE COMPLAINT HAS BEEN THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF ALL PROFESSIONAL AND NON-PROFESSIONAL
EMPLOYEES OF RESPONDENT.
2. SINCE 1972 COMPLAINANT AND RESPONDENT HAVE BEEN PARTIES TO SEVERAL
MULTI-DISTRICT AGREEMENTS COVERING THE AFORESAID UNIT. /3/
3. MULTI-DISTRICT AGREEMENT (MDA) NO. 1, EFFECTIVE ON JULY 1, 1972
FOR A TWO YEAR PERIOD, CONTAINED PROVISIONS DEALING WITH DISCIPLINARY
AND ADVERSE ACTIONS UNDER ARTICLE 31 OF SAID AGREEMENT. IT WAS MADE
APPLICABLE TO UNIT EMPLOYEES WHO COMPLETED THEIR PROBATIONARY PERIOD,
AND PROVIDED FOR INTER ALIA, (A) NOTIFICATION TO AN EMPLOYEE OF ANY SUCH
PROPOSED ACTION; (B) A MEETING BETWEEN THE EMPLOYEE AFFECTED AND
MANAGEMENT DURING WHICH THE EMPLOYEE WAS ENTITLED TO BE ACCOMPANIED BY
HIS UNION REPRESENTATIVE, (C) THE FURNISHING TO THE EMPLOYEE OF ALL
WRITTEN DOCUMENTS RELIED UPON BY THE EMPLOYER IN TAKING PROPOSED ACTION
AGAINST HIM.
4. MDA NO. 2, EFFECTIVE ON AUGUST 3, 1974 FOR A TWO YEAR PERIOD,
CONTAINED THE SAME BASIC PROVISIONS WITH RESPECT TO DISCIPLINARY AND
ADVERSE ACTIONS TAKEN BY MANAGEMENT AGAINST CAREER EMPLOYEES AS WERE
PROVIDED IN ARTICLE 31 OF MDA NO. 1. HOWEVER, IT SEPARATED THE
PROVISIONS AND SET FORTH A SEPARATE ARTICLE (NO. 32) FOR DISCIPLINARY
ACTIONS AND ANOTHER ARTICLE (NO. 33) FOR ADVERSE ACTION. BOTH OF THOSE
ARTICLES WERE STILL APPLICABLE TO UNIT EMPLOYEES WHO COMPLETED THEIR
PROBATIONARY PERIOD OF EMPLOYMENT.
THE SAID AGREEMENT, MDA NO. 2, ALSO INCLUDED A PROVISION DEALING WITH
PROBATIONARY EMPLOYEES DESIGNATED AS ARTICLE 31. THE LATTER ARTICLE
PROVIDED, IN SUBSTANCE, THAT IF THE EMPLOYER PROPOSES TO TERMINATE A
PROBATIONER, THE SAID EMPLOYEE WILL BE GIVEN DUE NOTICE THAT THE
EMPLOYER WILL, UPON REQUEST, MEET WITH SUCH EMPLOYEE WHO MAY BE
ACCOMPANIED BY HIS UNION REPRESENTATIVE; THAT THE EMPLOYER'S DECISION
RE TERMINATION WILL BE FINAL AND NON-APPLICABLE TO A HIGHER LEVEL
AUTHORITY.
5. MDA NO. 3 WAS EFFECTIVE ON JANUARY 31, 1977 FOR A FOUR YEAR
PERIOD. /4/ IT CONTINUED TO PROVIDE FOR SEPARATE COVERAGE FOR
PROBATIONARY EMPLOYEES AS WELL AS OTHER EMPLOYEES AFFECTED BY
DISCIPLINARY OR ADVERSE ACTIONS. ARTICLE 32 DEALS WITH PROBATIONERS
WHEREAS ARTICLES 33 AND 34 COVER DISCIPLINARY AND ADVERSE ACTIONS
RESPECTIVELY TOWARD OTHER EMPLOYEES. AS WAS TRUE IN THE MDA NO. 2, THE
EMPLOYER IS NOT REQUIRED THEREUNDER TO FURNISH INFORMATION TO A
PROBATIONARY EMPLOYEE UPON WHICH A DECISION TO TERMINATE HIM IS BASED.
UNDER ARTICLE 32, SECTION 1(C) IT IS PROVIDED AS FOLLOWS:
THE EMPLOYER AGREES TO MEET WITH AN AFFECTED PROBATIONARY EMPLOYEE
UPON REQUEST AND/OR
ACCEPT A WRITTEN STATEMENT FROM HIM/HER RELATING TO HIS/HER
TERMINATION, WHETHER OR NOT THE
EMPLOYEE IS ON THE ROLLS. IF THE EMPLOYEE ELECTS BOTH, THE WRITTEN
STATEMENT MUST BE
DELIVERED TO THE EMPLOYER ON OR BEFORE THE DATE OF THE MEETING. IF
THE AFFECTED EMPLOYEE
ELECTS TO REQUEST A MEETING TO SUBMIT A WRITTEN STATEMENT, THE
REQUEST FOR MEETING OR RECEIPT
OF WRITTEN STATEMENT MUST BE WITHIN FIFTEEN (15) DAYS OF RECEIPT OF
NOTICE. IF A MEETING IS
HELD, THE EMPLOYEE MAY BE ACCOMPANIED BY TWO REPRESENTATIVES OF THE
UNION.
6. RECORD FACTS REFLECT, AND I FIND, THAT DURING THE NEGOTIATION OF
MDA NO. 2 THE UNION PROPOSED TO MANAGEMENT THAT ARTICLE 31 WHICH WAS
CONTAINED IN MDA NO. 1 BE BROADENED TO INCLUDE PROBATIONARY EMPLOYEES.
THE BARGAINING REPRESENTATIVE SOUGHT TO PROTECT PROBATIONERS SINCE THEY
WERE NOT COVERED UNDER THE SAID ARTICLE, AND WERE NOT ENTITLED TO
INFORMATION AND DATA AS WERE THE OTHER CAREER UNIT EMPLOYEES. THE
EMPLOYER REFUSED TO EQUATE THE RIGHTS OF PROBATIONARY EMPLOYEES WITH
CAREER EMPLOYEES AND WOULD NOT AGREE TO THE UNION'S REQUEST. HOWEVER,
IT SUGGESTED THE PROBATIONARY EMPLOYEES BE GIVEN A STEP IN THE GRIEVANCE
PROCEDURE BUT THIS WAS NOT AGREED TO BY THE UNION. THE PARTIES FINALLY
AGREED UPON A SEPARATE ARTICLE FOR PROBATIONARY EMPLOYEES WHICH WAS
INCLUDED AS ARTICLE 31 IN MDA NO. 2 AND AS ARTICLE 32 IN MDA NO. 3. AS
A RESULT OF THIS AGREEMENT TO SO COVER THE PROBATIONERS, THE UNION DID
NOT PURSUE ITS DEMAND THAT THEY BE GIVEN THE SAME RIGHTS OR COVERAGE AS
WAS EXTENDED TO OTHER UNIT EMPLOYEES.
7. ON AUGUST 23, 1977 /5/ RESPONDENT HAND DELIVERED A LETTER TO
PROBATIONARY EMPLOYEE, PHYLLIS D. GRUBBS, NOTIFYING THE LATTER OF AN
INTENTION TO TERMINATE HER FOR FAILING TO PERFORM SATISFACTORILY. AS
EXPRESSED IN THE LETTER THE TERMINATION WOULD TAKE EFFECT /6/ AT THE
CLOSE OF BUSINESS SEPTEMBER 9, 1977 IN ACCORDANCE WITH PART 315 OF THE
CIVIL SERVICE COMMISSION REGULATIONS.
8. A JOINT LETTER SIGNED BY GRUBBS AND DUNCAN A. MCDONNELL, UNION
STEWARD, DATED AUGUST 24 WAS ADDRESSED TO DISTRICT DIRECTOR CHARLES O.
DEWITT WHEREIN THE PROBATIONER AND HER REPRESENTATIVE REQUESTED A
MEETING BE HELD PRIOR TO SEPTEMBER 9, 1977 IN ACCORDANCE WITH ARTICLE
32, SECTION 1(C) OF MDA NO. 3.
9. BY LETTER DATED AUGUST 24 BOTH GRUBBS AND MCDONNELL WROTE TERRY
H. DELANEY, CHIEF OF LABOR-RELATION FOR RESPONDENT REQUESTING CERTAIN
INFORMATION IN ACCORDANCE WITH THE PROVISION OF MDA NO. 3 AND THE
FREEDOM OF INFORMATION ACT. THE UNION SOUGHT THEREIN CERTAIN DATA
CONCERNING GRUBBS AND SIX OTHER NAMED PROBATIONERS IN ORDER TO PREPARE A
RESPONSE TO THE NOTICE OF TERMINATION GIVEN TO GRUBBS. RECORD FACTS
REVEAL THE UNION ISSUED THE INFORMATION IN ORDER TO SHOW MANAGEMENT THAT
GRUBBS' WORK WAS NOT SO POOR, COMPARED WITH THAT OF OTHER PROBATIONARY
EMPLOYEES, AS TO WARRANT HER TERMINATION. FURTHER, IT REQUESTED THE
INFORMATION NOT LATER THAN AUGUST 29.
THE DATA SOUGHT BY COMPLAINANT, WHICH WAS ACCEPTABLE IN SANITIZED
FORM, INCLUDED:
A) TRAVEL VOUCHERS
B) SIGN OUT SHEETS
C) CASE EVALUATIONS
D) WORKLOAD REVIEWS
E) REVIEWER'S MEMOS
F) ANNUAL AND SICK LEAVES-- AMOUNT TAKEN AND REMAINING.
G) INSTRUCTOR AND CLASSROOM EVALUATIONS
H) VARIOUS FORMS INVOLVING ON-THE-JOB TRAINING, CASE REVIEW, ET. AL.
10. ON THE AFTERNOON OF AUGUST 25 DELANEY TELEPHONED MCDONNELL RE
THE REQUEST FOR INFORMATION RECEIVED BY RESPONDENT. DELANEY STATED THAT
THE UNION WAS ASKING FOR A LOT OF INFORMATION, AND HE QUESTIONED ITS
RELEVANCY SINCE MANAGEMENT ONLY RELIED UPON INFORMATION CONCERNING
GRUBBS. MCDONNELL REPLIED HE HAD TO LOOK AT THE DATA TO DETERMINE HOW
RELEVANT IT WOULD BE; THAT IF THE EMPLOYER DEFER TERMINATING GRUBBS
TILL THE END OF HER PROBATIONARY PERIOD, THE UNION WOULD NOT PURSUE ITS
DEMAND. DELANEY AGREED TO CHECK ON WHETHER THE TERMINATION COULD BE
DEFERRED.
11. ON THE SAME DAY OF HIS CONVERSATION WITH THE UNION OFFICIAL,
DELANEY CONFERRED WITH JERRY DETERS, PERSONNEL OFFICER, AND RELATED THE
CONVERSATION RE THE INFORMATION REQUESTED. BOTH DELANEY AND DETERS
AGREED THAT THE UNION MUST SHOW THAT THE DATA WAS RELEVANT AND
NECESSARY; THAT THEY NEEDED AN EXTENSION OF TIME TO PROVIDE THE
INFORMATION; AND THAT PERHAPS IT WOULD BE FURNISHED IN ANOTHER FORM OR
BY SUMMARY.
12. ON THE FOLLOWING DAY, AUGUST 26, DELANEY AGAIN TELEPHONED
MCDONNELL TO DISCUSS THE REQUEST. HE MENTIONED THE SHORT PERIOD OF TIME
ALLOWED TO PROVIDE THE DATA. FURTHER, HE SUGGESTED THAT THE UNION
SELECT TWO OR THREE OTHERS SO THAT MANAGEMENT WOULD SUPPLY THE FACTS
FOR
JUST THREE EMPLOYEES INSTEAD OF ALL SIX INDIVIDUALS. DELANEY ALSO
MENTIONED THAT IF MCDONNELL COULD TELL HIM EXACTLY WHAT HE WAS LOOKING
FOR, HE MIGHT PROVIDE THE INFORMATION IN THE TIME PERIOD. MCDONNELL
INSISTED HE NEEDED THE INFORMATION PRIOR TO MEETING WITH THE RESPONDENT.
13. LATER IN THE DAY OF AUGUST 26 BOTH MCDONNELL AND BILL MOLINEAUX,
CHIEF STEWARD, CAME TO SEE DELANEY RE THE INFORMATION REQUESTED.
MANAGEMENT AGAIN RAISED THE QUESTION OF RELEVANCY. DELANEY POINTED OUT
THE UNION WAS ASKING FOR A LOT OF DATA, ALTHOUGH THE EMPLOYER COULD
PROVIDE SUMMARIES AND THE INFORMATION WITHIN THE TIME PERIOD. /7/
MCDONNELL AGAIN REPEATED ITS REQUEST THAT THE TERMINATION, DATE BE
EXTENDED.
14. ON AUGUST 29 MCDONNELL TELEPHONED DELANEY AND ASKED WHETHER THE
DATE WOULD BE FURNISHED THAT DAY. UPON BEING TOLD THAT IT WOULD NOT BE
SUPPLIED, MCDONNELL REMARKED "DO YOUR BEST."
15. BY LETTER DATED AUGUST 31 ADDRESSED TO GRUBBS, MANAGEMENT
ADVISED THAT IN RESPONSE TO HER REQUEST A MEETING WAS BEING SCHEDULED
FOR SEPTEMBER 7.
16. ON SEPTEMBER 1 RESPONDENT DELIVERED TO GRUBBS ALL OF THE
INFORMATION SHE REQUESTED WHICH PERTAINED TO HER EXCEPT FOR CERTAIN TAX
RETURN INFORMATION. THE EMPLOYER ALSO STATED, IN AN ACCOMPANYING MEMO,
THAT IT WAS WITHHOLDING DOCUMENTS RE OTHER PROBATIONARY EMPLOYEES SINCE
IT WOULD CONSTITUTE AN INVASION OF PRIVACY TO RELEASE THEM. MCDONNELL
SPOKE TO DELANEY THAT SAME DAY, AFTER THE DATA HAD BEEN SENT TO GRUBBS,
AND HE PROTESTED THAT THE INFORMATION WITH RESPECT TO THE OTHER SIX
PROBATIONARY EMPLOYEES HAD NOT BEEN SENT BY MANAGEMENT.
17. THE RECORD REFLECTS THAT RESPONDENT MAINTAINED A "BLACKBOOK" FOR
EACH EMPLOYEES WHICH CONSISTED OF A LARGE BINDER CONTAINING DETAILS RE
HIS TIME SHEET, TRAVEL VOUCHERS, CASE ANALYSIS, ON-THE-JOB TRAINING,
WORKLOAD REVIEWS, MEMO, AWARDS, CITATION AND LETTERS. MOST OF THE
INFORMATION SOUGHT BY COMPLAINANT REGARDING THE NAMED EMPLOYEES WAS
INCLUDED IN THIS "BLACKBOOK", ALTHOUGH SOME OF THE DATA REQUESTED BY THE
UNION WAS RECORDED ELSEWHERE.
18. BY LETTER DATED SEPTEMBER 1 ADDRESSED TO DIRECTOR DEWITT, THE
COMPLAINANT ADVISED THE LATTER THAT GOOD FAITH HAD NOT BEEN SHOWN BY
MANAGEMENT IN REFUSING TO FURNISH THE INFORMATION RE OTHER PROBATIONERS;
THAT IT NEEDED THE DATA TO PUT FORTH FACTS POSSIBLY NOT CONSIDERED BY
THE SUPERVISORS OF GRUBBS; AND IT SPECIFICALLY REQUESTED THAT SANITIZED
LISTS OF THE MATERIAL DESIRED BE SUPPLIED PRIOR TO THE MEETING SCHEDULED
FOR SEPTEMBER 9.
19. A MEETING WAS HELD WITH MANAGEMENT ON SEPTEMBER 7 AT WHICH UNION
AGENTS MCDONNELL AND MOLINEAUX ATTENDED AS WELL AS EMPLOYEE GRUBBS.
COMPLAINANT REITERATED ITS NEED FOR THE DATA REQUESTED AS TO THE OTHER
PROBATIONERS AND RENEWED ITS DEMAND THEREFOR. NO OFFER WAS MADE BY
RESPONDENT TO SUPPLY IT OR ANY POSITION THEREOF.
20. IN OCTOBER, AND SUBSEQUENT TO HER TERMINATION, GRUBBS FILED AN
EEO COMPLAINT ALLEGING DISCRIMINATION BASED ON SEX.
21. APPROXIMATELY SIX MONTHS AFTER SEPTEMBER 1, AND DURING THE
INVESTIGATION OF THIS CASE, RESPONDENT FURNISHED TO THE DEPARTMENT OF
LABOR THE SANITIZED MATERIAL CONCERNING THE OTHER SIX PROBATIONARY
EMPLOYEES. DELANEY TESTIFIED THAT IN ORDER TO GATHER THE DATA IT WAS
NECESSARY TO UTILIZE TWO CLERICALS FOR A WEEK WORKING FREE TIME; THAT
HIS SECRETARY WORKED 80 HOURS ON THE MATTER; SEVERAL OTHER INDIVIDUALS
SPENT A FEW DAYS GATHERING THE INFORMATION; AND THAT DELANEY DEVOTED
TWO WEEKS IN ACCUMULATING AND SUPPLYING THE DATA. RESPONDENTS ALSO
ESTABLISH THAT MUCH OF THE INFORMATION SOUGHT HAD BEEN REMOVED FROM THE
BOOKS AT THE TIME IT WAS COMPILED FOR THE DEPARTMENT OF LABOR SINCE IT
WAS NOT CURRENT. THIS FACTOR CONTRIBUTED TO THE AMOUNT OF TIME REQUIRED
TO ACCUMULATE THE MATERIALS. FURTHER, IF RESPONDENT HAD GATHERED THE
INFORMATION WHEN COMPLAINANT REQUESTED SAME, IT WOULD HAVE TAKEN LESS
TIME TO PROVIDE IT.
CONCLUSIONS
THE PRINCIPAL CONTENTIONS OF THE RESPONDENT ARE: (A) THE INFORMATION
SOUGHT BY COMPLAINANT IS NEITHER RELEVANT NOR NECESSARY SO AS TO OBLIGE
THE EMPLOYER TO FURNISH SAME; (B) THE DEMAND WAS MADE UNDER THE
CONTRACT, RATHER THAN THE ORDER, AND NO RIGHT EXISTED UNDER THE
AGREEMENT TO SEEK INFORMATION; (C) RESPONDENT DID NOT RELY UPON THE
PERFORMANCE OR SUITABILITY OF THE OTHER PROBATIONARY EMPLOYEES IN
SEPARATING GRUBBS; (D) COMPLAINANT WAVED ITS RIGHT TO OBTAIN THE
INFORMATION REQUESTED BY VIRTUE OF THE BARGAINING HISTORY AND THE
AGREEMENTS NEGOTIATED WITH RESPONDENT; (E) UNDER 19(D) OF THE ORDER,
THIS PROCEEDING IS BARRED SINCE THE ISSUE COULD HAVE BEEN RAISED THROUGH
STATUTORY AND REGULATORY DISCRIMINATION COMPLAINT PROCESS.
THE RECENT DECISION IN INTERNAL REVENUE SERVICE, FRESNO SERVICE
CENTER, A/SLMR NO. 1119 IS DISPOSITIVE OF SEVERAL ISSUES RAISED IN THE
INSTANT MATTER. THE CITED CASE INVOLVED A REFUSAL BY THAT EMPLOYER TO
FURNISH THE NTEU, AND ITS CHAPTER 97, AN INVESTIGATORY FILE WHICH FORMED
THE BASIS OF A DECISION TO TERMINATE AN EMPLOYEE WHOM THE UNION
REPRESENTED. RESPONDENT THEREIN CONTENDED, AS HERE, THAT THE RIGHTS OF
A PROBATIONARY EMPLOYEE ARE LIMITED; THAT THE ORDER DOES NOT GRANT THE
UNION ACCESS TO THE FILE; THAT SECTION 10(E) OF THE ORDER DOES NOT
OBLIGE THE EMPLOYER TO FURNISH IT TO THE UNION; THAT ACCESS TO THE
FILES IS NOT RELEVANT NOR NECESSARY SINCE THE UNION'S ONLY RIGHT IS TO
BE PRESENT AT A MEETING, WHICH WAS GRANTED; THAT ANY RIGHT TO THE FILES
WAS WAIVED BY THE UNION; AND THE COMPLAINT WAS BARRED BY SECTION 19(D)
OF THE ORDER.
IN FINDING A VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE ORDER, THE
ASSISTANT SECRETARY CONCLUDED THAT THE EXCLUSIVE REPRESENTATIVE'S RIGHT
OF ACCESS TO INFORMATION STEMMED FROM ITS OBLIGATION, UNDER SECTION
10(E), TO REPRESENT THE INTERESTS OF ALL UNIT EMPLOYEES. THIS
RESPONSIBILITY IS NOT FULFILLED IF THE REPRESENTATIVE IS PREVENTED FROM
OBTAINING RELEVANT AND NECESSARY DATA RELATING TO IT DUTY TO ADMINISTER
THE NEGOTIATED AGREEMENT AND TO REPRESENT EMPLOYEES RE THE EXERCISE OF
THEIR RIGHTS UNDER THE ORDER. THUS, THE UNION IN INTERNAL REVENUE
SERVICE, FRESNO SERVICE CENTER, SUPRA, WAS ENTITLED, ACCORDING TO THE
ASSISTANT SECRETARY, TO FILE TO FULFILL ITS FUNCTION ON BEHALF OF THE
PROBATIONARY EMPLOYEES, AS WELL AS THE ADMINISTRATION OF THE NEGOTIATED
AGREEMENT. MOREOVER, THE SAID FILE WAS PRESUMPTIVELY RELEVANT AND
NECESSARY IN ORDER FOR THE UNION TO PERFORM SAID FUNCTIONS.
WHILE CONCEDING THAT THE INFORMATION WITH RESPECT TO GRUBBS WAS
RELEVANT AND NECESSARY TO A PROPER REPRESENTATION OF THAT EMPLOYEE,
RESPONDENT DISPUTES THE RELEVANCY AND NECESSITY OF THE DATA AS TO THE
SIX OTHER PROBATIONERS. IT THUS WOULD DISTINGUISH THE INSTANT CASE FROM
IRS, FRESNO SERVICE CENTER SINCE THAT MATTER ONLY INVOLVED THE FILE OF
THE PARTICULAR PROBATIONARY EMPLOYEE TO BE TERMINATED. I REJECT THIS
ARGUMENT. THE DATA SOUGHT BY COMPLAINANT HEREIN RESPECTING THE OTHER
PROBATIONERS MIGHT WELL BE VITAL IN ENABLING THE UNION TO PROPERLY
REPRESENT GRUBBS. A COMPARISON AMONG THE PERFORMANCES OF THOSE IN THE
SAME JOB CLASSIFICATION COULD RESULT IN PERSUADING THE EMPLOYER THAT
GRUBBS' PERFORMANCE DIFFERED LITTLE FROM THE COLLEAGUES. DISPARATE
TREATMENT BETWEEN EMPLOYEES IS LONG RECOGNIZED AS A FACTOR IN
DETERMINING WHETHER DISCRIMINATORY MOTIVATION BY AN EMPLOYER EXISTS.
LIKEWISE, DISPARITY OF TREATMENT ACCORDED EMPLOYEES BY AN EMPLOYER COULD
BE A SIGNIFICANT CONSIDERATION IN THE PROPER REPRESENTATION OF SUCH
EMPLOYEE BY HER REPRESENTATIVE. THE EVALUATIONS, REVIEWS, PERFORMANCE
RATINGS AND SIMILAR DATA CONCERNING THE CAPABILITIES OF OTHER
PROBATIONERS WOULD BE RELEVANT IN DETERMINING WHETHER SUCH TREATMENT BY
RESPONDENT WAS JUSTIFIED. TO ENABLE COMPLAINANT TO MAKE THIS
DETERMINATION, AND THUS EFFECTIVELY REPRESENT GRUBBS, ACCESS TO SUCH
INFORMATION WOULD BE NECESSARY. THE UNION WOULD BE ABLE, UNDER SUCH
CIRCUMSTANCES, TO FULFILL ITS OBLIGATION IN REPRESENTING GRUBBS AND
ADMINISTERING THE CONTRACT.
THE EMPLOYER HEREIN ASSERTS, HOWEVER, THAT IT DID NOT RELY UPON THE
PERFORMANCES OR SUITABILITY OF OTHER PROBATIONARY EMPLOYEES IN TAKING
ADVERSE ACTION AGAINST GRUBBS. THEREFORE, IT ARGUES, THE MATERIAL WITH
RESPECT TO THE OTHER INDIVIDUALS CAN HAVE NO RELEVANCY. I DISAGREE.
THE FACT THAT NO RELIANCE WAS PLACED BY THE EMPLOYER ON THE PERFORMANCES
OF GRUBBS' COLLEAGUES DOES NOT RENDER SUCH DATA IRRELEVANT OR
UNNECESSARY. CF. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION
SERVICE, A/SLMR NO. 902. TO ENABLE A UNION TO CONDUCT ITS
REPRESENTATIONAL DUTIES INTELLIGENTLY, IT IS NOT REQUIRED THAT THE
INFORMATION SOUGHT BY IT BE THE BASIS FOR THE ACTION TAKEN BY THE
EMPLOYEES. SUCH MATERIAL MAY, IN ITSELF, BE RELEVANT TO A CONSIDERATION
OF THE REASONABLENESS OF ACTION TAKEN AGAINST THIS EMPLOYEE VIS A VIS
OTHERS SIMILARLY SITUATED. ACCESS TO SUCH DATA IS OBVIOUSLY NECESSARY
FOR THE UNION TO REPRESENT GRUBBS AT THE MEETING WHEREIN HER PROPOSED
TERMINATION WILL BE DISCUSSED, AND I SO FIND.
THE ASSISTANT SECRETARY ALSO CONCLUDED IN THE IRS, FRESNO CASE,
SUPRA, THAT THE WITHDRAWAL BY THE UNION THEREIN DURING CONTRACT
NEGOTIATION, OF ITS DEMAND THAT AN INVESTIGATORY FILE BE FURNISHED WITH
RESPECT TO PROBATIONARY EMPLOYEES WAS NOT A WAIVER OF ITS RIGHT TO SUCH
FILE UNDER THE ORDER. SUCH A WITHDRAWAL, AND FAILURE TO PURSUE ITS
DEMAND IN THAT RESPECT, WAS HELD NOT TO BE A CLEAR AND UNMISTAKABLE
WAIVER IN ACCORDANCE WITH THE RULE LAID DOWN IN NASA KENNEDY SPACE
CENTER, KENNEDY SPACE CENTER, FLORIDA, A/SLMR NO. 223. THE SAME
CONTRACTS AND BARGAINING HISTORY PREVAIL IN BOTH THE INSTANT MATTER AND
THE FRESNO CASE. I FIND NO REASON TO DEPART FROM THE RULING OF THE
ASSISTANT SECRETARY, AND HENCE IT IS CONCLUDED THERE WAS NO WAIVER BY
COMPLAINANT OF ITS RIGHT TO OBTAIN THE INFORMATION UNDER THE ORDER.
THE INTERNAL REVENUE SERVICE IN THE FRESNO CASE, SUPRA, LIKEWISE
CONTENDED THAT THE PROCEEDINGS WERE BARRED UNDER SECTION 19(D) OF THE
ORDER. SUCH DEFENSE WAS NOT UPHELD. IN THE CASE AT BAR, MOREOVER, I DO
NOT CONCLUDE THAT THE UNION'S RIGHT TO THE DATA REQUESTED WAS AN ISSUE
WHICH COULD, IN ANY EVENT, BE RAISED DURING THE EEO PROCEEDING BY
GRUBBS. APART FROM THE FACT THAT THERE WAS NO APPEALS PROCEDURE UNDER
WHICH THIS ISSUE WOULD BE PROPERLY RAISED, I CONCLUDE THIS DEFENSE HAS
BEEN LAID TO REST BY THE ASSISTANT SECRETARY IN THE CITED CASE.
RESPONDENT HEREIN LAYS STRESS ON THE CONTENTION THAT, IN VIEW OF THE
TIME LIMIT SET BY COMPLAINANT FOR THE PRODUCTION OF THE DATA AS WELL AS
THE VOLUME OF MATERIAL REQUESTED, THE DEMAND BY THE UNION WAS
UNREASONABLE AND IMPOSED AN UNDUE BURDEN UPON THE EMPLOYER. WHILE
COMPLAINANT INITIALLY DEMANDED THAT THE INFORMATION BE SUPPLIED BY
AUGUST 29-- FIVE DAYS AFTER THE DEMAND DATE, IT CONTINUED TO SEEK THE
MATERIAL EVEN AT THE MEETING ON SEPTEMBER 7. I AM NOT PERSUADED THAT
THE UNION HEREIN WAS SO ARBITRARY IN FIXING A TIME FOR THE PRODUCTION OF
THE INFORMATION AS NOT TO ACCEPT IT AFTER THE 29TH OF AUGUST. THE DATE
SELECTED FOR THE FURNISHING OF THE MATERIAL WAS REASONABLY CLOSE TO THE
DATE SET FOR THE MEETING, AND ONE CAN SCARCELY FAULT COMPLAINANT FOR
SEEKING THE INFORMATION IN ADVANCE OF THE MEETING IN ORDER TO ANALYZE IT
INTELLIGENTLY. NOTIFICATION BY THE EMPLOYER OF ITS INTENT TO TERMINATE
GRUBBS WAS ONLY ABOUT TWO WEEKS PRIOR TO THE TERMINATION DATE.
ACCORDINGLY, THE NARROW TIME FRAME WITHIN WHICH THE UNION WOULD SEEK AND
EXAMINE THE RELEVANT DATA EXISTS BY VIRTUE OF THE INITIAL ACTION TAKEN
BY RESPONDENT ITSELF.
MOREOVER, I AM CONSTRAINED TO CONCLUDE, UPON THE RECORD FACTS HEREIN,
THAT THE COMPILATION OF THE INFORMATION BY THE EMPLOYER DID NOT PLACE AN
UNDUE BURDEN UPON IT. RESPONDENT FINALLY UNDERTOOK TO SUPPLY THE
REQUESTED DATA RE GRUBBS-- ALL OF WHICH IT FURNISHED IN SEVEN DAYS.
SINCE MOST OF THE MATERIAL WAS INCLUDED IN THE "BLACKBOOK" PERTAINING TO
THE EMPLOYEES, ONE COULD EXPECT THAT THE DATA CONCERNING THE OTHER SIX
PROBATIONERS BE GATHERED IN MUCH THE SAME MANNER AND WITHIN THE SAME
TIME PERIOD. RESPONDENT ACKNOWLEDGES THAT MUCH OF THE INFORMATION RE
THE OTHER EMPLOYEES HAD BEEN REMOVED FROM THE FILES AFTER SEPTEMBER.
THUS, THE FACT THAT IT TOOK SEVERAL WEEKS FOR VARIOUS STAFF MEMBERS TO
COLLECT THE DATA, WHICH RESPONDENT SENT TO DOL, LESSENS ITS
SIGNIFICANCE. MOREOVER, THE RECORD IS BARREN OF ANY ATTEMPT OR CHANCE.
MOREOVER, THE RECORD IS BARREN OF ANY ATTEMPT OR OFFER BY THE EMPLOYER
TO SUBMIT THE INFORMATION AS GATHERED, SO THAT THE UNION COULD EXAMINE
THE POSITIONS DELIVERED TO IT. IT IS ALSO NOTED THAT RESPONDENT MIGHT
HAVE MADE THE MATERIAL AVAILABLE FOR INSPECTION TO THE COMPLAINANT AT
ITS PREMISES, THUS ELIMINATING CONSIDERABLE TIME OTHERWISE SPENT IN ITS
ORGANIZATION AND COMPILATION. HAD THE EMPLOYER HEREIN TAKEN STEPS TO
SUBMIT SOME INFORMATION TO THE UNION-- WHETHER IT ABBREVIATED OR
SHORTENED FORM-- ITS DEFENSE OF UNDUE BURDEN MIGHT HAVE SOME VALIDITY.
IN FACE OF ITS INSISTENCE, HOWEVER, THAT THE DATA WOULD NOT BE GIVEN TO
COMPLAINANT UNDER ANY CIRCUMSTANCES, I FIND IT DIFFICULT TO CONCLUDE
THAT THE CLAIM OF UNDUE BURDEN WAS RAISED IN GOOD FAITH. IN ANY EVENT,
I AM CONVINCED THAT THE INFORMATION RE THE SIX PROBATIONERS COULD HAVE
BEEN FURNISHED PRIOR TO THE MEETING ON SEPTEMBER 7; THAT THE REQUEST
FOR SAME WAS NOT UNREASONABLE; AND THAT, WHILE IT MAY HAVE IMPOSED A
BURDEN UPON RESPONDENT, THE ONUS WAS NOT SO DIFFICULT AS TO EXCULPATE
THE LATTER FROM ITS OBLIGATION TO SUPPLY THE INFORMATION PRIOR TO HER
TERMINATION.
UNDER THE CIRCUMSTANCES PRESENT HEREIN, I CONCLUDE THAT RESPONDENT
WAS OBLIGED, UNDER THE ORDER, TO FURNISH THE INFORMATION REQUESTED
CONCERNING THE SIX OTHER PROBATIONARY EMPLOYEES; THAT THIS INFORMATION
WAS RELEVANT AND NECESSARY IN ORDER FOR COMPLAINANT TO FULFILL ITS DUTY
TO REPRESENT EMPLOYEES IN THE BARGAINING UNIT; AND THAT THE FAILURE TO
FURNISH SAME WAS A REFUSAL TO NEGOTIATE AND VIOLATIVE OF SECTIONS
19(A)(1) AND (6) OF THE ORDER.
REMEDY
COMPLAINANT SEEKS A REMEDY PROVIDING, INTER ALIA, FOR REINSTATEMENT
OF GRUBBS TO HER FORMER POSITION. IT INSISTS THAT REQUIRING RESPONDENT
TO MEET WITH THE UNION WOULD BE MEANINGLESS SINCE THE EMPLOYEE HAS
ADVERSELY BEEN DISCHARGED. NO INCENTIVE IS PROVIDED, ARGUES
COMPLAINANT, FOR THE EMPLOYER TO REVERSE ITS DECISION, AND THUS ANY
FUTURE DISCUSSION BETWEEN THE PARTIES HEREIN CONCERNING GRUBBS WOULD BE
USELESS.
THIS SAME CONTENTION WAS RAISED BY THE UNION IN THE FRESNO CASE. THE
ASSISTANT SECRETARY DECLINED TO ORDER REINSTATEMENT OF THE PROBATIONARY
EMPLOYEE, STATING THERE WAS NO SUFFICIENT EVIDENCE TO SHOW THAT BUT FOR
THE REFUSAL TO FURNISH THE REQUESTED INFORMATION THE EMPLOYEE WOULD NOT
HAVE BEEN DISCHARGED. WHILE I RECOGNIZE THE LOGIC BEHIND COMPLAINANT'S
ARGUMENT IN SEEKING GRUBBS' REINSTATEMENT, I AM BOUND BY CITED CASE IN
THIS RESPECT. IN THE INSTANT CASE THE FACTS DO NOT DEMONSTRATE THAT BUT
THE REFUSAL TO SUPPLY THE DATA REQUESTED, GRUBBS WOULD NOT HAVE BEEN
TERMINATED. IN LIGHT OF THE REFUSAL BY THE ASSISTANT SECRETARY TO ORDER
REINSTATEMENT UNDER THESE CIRCUMSTANCES, I SHALL NOT RECOMMEND SUCH A
REMEDY HEREIN.
RECOMMENDATIONS
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT WHICH IS
VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
AMENDED, I RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE FOLLOWING
ORDER DESIGNED TO EFFECTUATE THE POLICIES AND PURPOSES OF THE ORDER.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE INTERNAL REVENUE
SERVICE, JACKSONVILLE DISTRICT, SHALL:
1. CEASE AND DESIST FROM:
(A) WITHHOLDING OR FAILING TO PROVIDE, UPON REQUEST BY NATIONAL
TREASURY EMPLOYEES UNION,
ANY INFORMATION BEARING UPON THE WORK PERFORMANCE OF ANY OR ALL ITS
PROBATIONARY EMPLOYEES, IN
CONNECTION WITH REPRESENTING A PROBATIONARY EMPLOYEE AT ANY MEETING
CALLED TO CONSIDER THE
LATTER'S PROPOSED TERMINATION, WHICH IS RELEVANT AND NECESSARY TO
ENABLE THE NATIONAL TREASURY
EMPLOYEES UNION TO DISCHARGE ITS OBLIGATION AS THE EXCLUSIVE
REPRESENTATIVE TO REPRESENT
EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, MAKE AVAILABLE TO NATIONAL TREASURY EMPLOYEES UNION
ALL INFORMATION
BEARING UPON THE WORK PERFORMANCE OF ANY OR ALL ITS PROBATIONARY
EMPLOYEES, IN CONNECTION WITH
THE SEPARATION OF PHYLLIS D. GRUBBS, A PROBATIONARY EMPLOYEE, WHICH
IS RELEVANT AND NECESSARY
TO ENABLE THE NATIONAL TREASURY EMPLOYEES UNION TO DISCHARGE ITS
OBLIGATION TO REPRESENT
EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
(B) AFTER RECEIPT BY THE NATIONAL TREASURY EMPLOYEES UNION OF THE
RELEVANT AND NECESSARY
INFORMATION REFERRED TO IN SECTION 2(A) ABOVE, UPON REQUEST, MEET
WITH THE NATIONAL TREASURY
EMPLOYEES UNION PURSUANT TO ARTICLE 32 OF THE PARTIES' NEGOTIATED
AGREEMENT CONCERNING THE
DECISION TO SEPARATE PHYLLIS D. GRUBBS.
(C) POST AT ITS JACKSONVILLE, FLORIDA DISTRICT COPIES OF THE ATTACHED
NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE
JACKSONVILLE, FLORIDA DISTRICT AND THEY SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT
SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN
WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY
THEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: 20 DEC 1978
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT WITHHOLD OR FAIL TO PROVIDE, UPON REQUEST BY NATIONAL
TREASURY EMPLOYEES UNION, AND INFORMATION BEARING UPON THE WORK
PERFORMANCE OF ANY OR ALL ITS PROBATIONARY EMPLOYEES, IN CONNECTION WITH
EMPLOYEE AT ANY MEETING CALLED TO CONSIDER THE LATTER'S PROPOSED
TERMINATION, WHICH IS RELEVANT AND NECESSARY TO ENABLE THE NATIONAL
TREASURY EMPLOYEES UNION TO DISCHARGE ITS OBLIGATION AS THE EXCLUSIVE
REPRESENTATIVE TO REPRESENT EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED 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
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY
EMPLOYEES UNION ALL INFORMATION BEARING UPON THE WORK PERFORMANCE OF ANY
OR ALL ITS PROBATIONARY EMPLOYEES, IN CONNECTION WITH THE SEPARATION OF
PHYLLIS D. GRUBBS, A PROBATIONARY EMPLOYEE, WHICH IS RELEVANT AND
NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES UNION TO DISCHARGE
ITS OBLIGATION TO REPRESENT EFFECTIVELY ALL EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNIT.
WE WILL, UPON REQUEST, AND AFTER THE RECEIPT OF THE RELEVANT AND
NECESSARY INFORMATION BY THE NATIONAL TREASURY EMPLOYEES UNION, MEET
WITH THE NATIONAL TREASURY EMPLOYEES UNION, PURSUANT TO ARTICLE 32 OF
OUR NEGOTIATED AGREEMENT, CONCERNING THE DECISION TO SEPARATE PHYLLIS D.
GRUBBS.
AGENCY OR ACTIVITY
DATED BY (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS: ROOM 300-- 1371 PEACHTREE STREET, N.E., ATLANTA, GEORGIA
30309.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E. O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ THE REGIONAL OFFICE DISMISSED THE COMPLAINT ON MAY 16, 1978 ON
THE GROUNDS THAT (A) THE REQUEST FOR INFORMATION PLACED AN EXCESSIVE
BURDEN UPON RESPONDENT IN LIGHT OF THE TIME FRAME GIVEN IT; (B)
COMPLAINANT FAILED TO ESTABLISH THAT THE REQUESTED INFORMATION WAS
RELEVANT AND NECESSARY. THE ASSISTANT SECRETARY GRANTED COMPLAINANT'S
REQUEST FOR REVIEW ON JULY 31, 1978, CONCLUDING THERE WAS A REASONABLE
BASIS FOR THE ALLEGATION THAT THE INFORMATION WAS NECESSARY AND RELEVANT
FOR THE UNION TO FULFILL ITS DUTIES HEREIN.
/3/ THESE AGREEMENTS WERE EXECUTED WITH COMPLAINANT BY INTERNAL
REVENUE SERVICE ON BEHALF OF NUMEROUS DISTRICTS OF SAID SERVICE LOCATED
THROUGHOUT THE UNITED STATES.
/4/ WHILE THIS AGREEMENT WAS DEEMED TO HAVE EXPIRED BY VIRTUE OF THE
FACT THAT NTEU WAS CERTIFIED IN A NEW CONSOLIDATED UNIT, THE PARTIES
CONTINUE TO OPERATE UNDER MDA NO. 3.
/5/ ALL DATES HEREINAFTER MENTIONED ARE IN 1977 UNLESS OTHERWISE
STATED.
/6/ APPARENTLY GRUBBS LEARNED OF THE PROPOSED TERMINATION BEFOREHAND,
SINCE DUNCAN A. MCDONNELL, UNION STEWARD, ASKED SUPERVISOR DAN BLACK ON
AUGUST 22, TO DELAY ISSUING THE TERMINATION NOTICE SO AS TO STUDY THE
DATA INVOLVED THEREIN. HIS REQUEST WAS DENIED.
/7/ DETERS TESTIFIED THAT EVEN IF NO TIME PROBLEM EXISTED, RESPONDENT
WOULD STILL NOT HAVE PROVIDED THE INFORMATION SINCE IT WAS NOT DEEMED
MATERIAL OR RELEVANT.