[ v09 p480 ]
09:0480(57)CA
The decision of the Authority follows:
9 FLRA No. 57
INTERNAL REVENUE SERVICE,
WESTERN REGION,
SAN FRANCISCO, CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 9-CA-381
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN THE
UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT
CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION AND
A BRIEF IN SUPPORT THEREOF, AND THE GENERAL COUNSEL FILED AN OPPOSITION.
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, /1/ CONCLUSIONS /2/ AND
RECOMMENDATIONS, AS MODIFIED HEREIN.
THE AUTHORITY ADOPTS THE JUDGE'S CONCLUSION THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE BY REFUSING TO
FURNISH NECESSARY INFORMATION TO THE UNION AS REQUESTED UNDER SECTION
7114(B)(4) OF THE STATUTE. THUS, AS FOUND BY THE JUDGE, 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. /3/
IN HIS PROPOSED REMEDY, THE JUDGE RECOMMENDED THAT THE RESPONDENT BE
REQUIRED TO PROVIDE THE INFORMATION TO THE UNION UPON REQUEST, AND TO
HOLD ANOTHER ORAL HEARING AT WHICH THE UNION WOULD HAVE AN OPPORTUNITY
TO PERSUADE THE RESPONDENT TO RECONSIDER THE ADVERSE ACTION PREVIOUSLY
IMPOSED ON THE UNIT EMPLOYEE. HOWEVER, THE AUTHORITY TAKES OFFICIAL
NOTICE THAT THE MERIT SYSTEMS PROTECTION BOARD HAS ALREADY RESOLVED THE
ADVERSE ACTION ISSUE AND DETERMINED THAT THE DISCIPLINARY ACTION IMPOSED
WAS THE MINIMUM REQUIRED BY LAW FOR THE VIOLATION FOUND TO HAVE BEEN
COMMITTED BY THE EMPLOYEE. RICHARD P. RODRIGUEZ V. DEPARTMENT OF THE
TREASURY, INITIAL DECISION NO. SF07528010416 (FEBRUARY 12, 1981). /4/
UNDER THESE CIRCUMSTANCES, A RE-RUN OF THE PRE-DECISIONAL ORAL HEARING
TO ENABLE THE RESPONDENT TO RECONSIDER THE ADVERSE ACTION IMPOSED WOULD
SERVE NO PURPOSE, AND THEREFORE SHALL NOT BE DIRECTED BY THE AUTHORITY.
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 INTERNAL REVENUE SERVICE, WESTERN REGION, SAN
FRANCISCO, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION THE
DOCUMENTS AND MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, AND ANY
OTHER MATERIAL WHICH IS REASONABLY AVAILABLE AND NECESSARY TO ENABLE THE
NATIONAL TREASURY EMPLOYEES UNION, AS THE EXCLUSIVE REPRESENTATIVE OF
THE RESPONDENT'S EMPLOYEES, TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION
TO EMPLOYEE RICHARD RODRIGUEZ 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 NATIONAL TREASURY EMPLOYEES UNION
THE DOCUMENTS AND MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, AND ANY
OTHER MATERIAL WHICH IS REASONABLY AVAILABLE AND NECESSARY TO ENABLE THE
NATIONAL TREASURY EMPLOYEES UNION, AS THE EXCLUSIVE REPRESENTATIVE OF
THE RESPONDENT'S EMPLOYEES, TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION
TO EMPLOYEE RICHARD RODRIGUEZ OR ANY OTHER UNIT EMPLOYEE.
(B) POST AT ITS FACILITIES AT THE INTERNAL REVENUE SERVICE, WESTERN
REGION, SAN FRANCISCO, CALIFORNIA, 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 REGIONAL COMMISSIONER
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
REGIONAL COMMISSIONER 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 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., JULY 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 TO FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION
THE DOCUMENTS AND MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, AND ANY
OTHER MATERIAL WHICH IS REASONABLY AVAILABLE AND NECESSARY TO ENABLE THE
NATIONAL TREASURY EMPLOYEES UNION, AS THE EXCLUSIVE REPRESENTATIVE OF
OUR EMPLOYEES, TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION TO EMPLOYEE
RICHARD RODRIGUEZ OR ANY OTHER UNIT EMPLOYEE. 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 STATUTE. WE WILL, UPON
REQUEST, FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION THE DOCUMENTS
AND MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, AND ANY OTHER MATERIAL
WHICH IS REASONABLY AVAILABLE AND NECESSARY TO ENABLE THE NATIONAL
TREASURY EMPLOYEES UNION, AS THE EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES, TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION TO EMPLOYEE
RICHARD RODRIGUEZ 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, OR COMPLIANCE WITH ANY OF ITS
PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR,
FEDERAL LABOR RELATIONS AUTHORITY, REGION IX, WHOSE ADDRESS IS: 540
BUSH STREET, ROOM 542, SAN FRANCISCO, CALIFORNIA 94108 AND WHOSE
TELEPHONE NUMBER IS: (415) 556-8105.
-------------------- ALJ$ DECISION FOLLOWS --------------------
PAUL L. DIXON, ESQ.
FOR THE RESPONDENT
NANCY PRITIKIN, ESQ.
FOR THE GENERAL COUNSEL
ALAN S. HERSH, ESQ.
FOR THE CHARGING PARTY
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON AUGUST 29,
1980 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
SAN FRANCISCO REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON
JANUARY 15, 1981 AT SAN FRANCISCO, CALIFORNIA.
THIS CASE ARISES UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (HEREIN CALLED THE ACT). THE COMPLAINT HEREIN IS BASED UPON AN
AMENDED CHARGE FILED ON MAY 23, 1980 BY NATIONAL TREASURY EMPLOYEES
UNION (HEREIN CALLED THE UNION) AGAINST INTERNAL REVENUE SERVICE,
WESTERN REGION, SAN FRANCISCO, CALIFORNIA (HEREIN CALLED RESPONDENT).
THE COMPLAINT ALLEGED IN SUBSTANCE THAT RESPONDENT, SINCE OR ABOUT
JANUARY 29, 1980, REFUSED TO BARGAIN WITH THE UNION AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF ITS EMPLOYEES BY REFUSING TO FURNISH
NECESSARY AND RELEVANT INFORMATION RELATING TO AN ADVERSE ACTION OF UNIT
EMPLOYEE RICHARD RODRIGUEZ - ALL IN VIOLATION OF SECTIONS 7116(A)(1),
(5) AND (8) OF THE ACT.
RESPONDENT FILED AN ANSWER ON SEPTEMBER 23, 1980 IN WHICH IT DENIED
THE APPROPRIATENESS OF THE UNIT AS WELL AS THE STATUS OF THE UNION AS
THE COLLECTIVE BARGAINING REPRESENTATIVE. /5/ IT ALSO DENIED THE
COMMISSION OF ANY UNFAIR LABOR PRACTICE.
ALL PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREOF THE BRIEFS WERE FILED WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MADE THE FOLLOWING FINDINGS AND CONCLUSIONS.
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN, AND STILL IS,
THE EXCLUSIVE BARGAINING REPRESENTATIVE OF PROFESSIONAL AND
NON-PROFESSIONAL EMPLOYEES WHO ARE EMPLOYED BY RESPONDENT IN ITS
NATIONAL, REGIONAL AND DISTRICT OFFICES.
2. INCLUDED WITHIN THE WESTERN REGION OF THE INTERNAL REVENUE
SERVICE ARE 10 WESTERN STATES. EACH STATE HAS A DISTRICT OFFICE, EXCEPT
THAT CALIFORNIA IS DIVIDED INTO TWO DISTRICTS: ONE IN LOS ANGELES AND
THE OTHER IN SAN FRANCISCO. INFORMATION WITH RESPECT TO ADVERSE ACTION
TAKEN AGAINST PARTICULAR EMPLOYEES IS KEPT AT THE DISTRICT OFFICE WHERE
SUCH EMPLOYEE IS STATIONED. AUTHORITY TO TAKE ADVERSE ACTION AGAINST AN
EMPLOYEE REPOSES IN THE DISTRICT DIRECTOR, AND THE AUTHORITY IS
DELEGATED BY THE NATIONAL OFFICE.
3. BOTH THE UNION AND RESPONDENT ARE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT WHICH, BY ITS TERMS, BECAME EFFECTIVE FOR A FOUR
YEAR PERIOD COMMENCING ON JANUARY 31, 1977 AND IS AUTOMATICALLY
RENEWABLE, ABSENT PROPER NOTICE, FOR YEARLY PERIODS AFTER ITS
TERMINATION DATE.
4. ARTICLE 34 OF SAID AGREEMENT, WHICH DEALS WITH ADVERSE ACTIONS,
PROVIDES IN PERTINENT PART AS FOLLOWS:
ARTICLE 34
ADVERSE ACTIONS
SECTION 2
"A. IN ALL CASES OF PROPOSED ADVERSE ACTION, THE EMPLOYEE WILL BE
GIVEN WRITTEN NOTICE OF
THE SPECIFIC CHARGES WHICH FORM THE BASIS FOR THE PROPOSED ADVERSE
ACTION THIRTY (30) DAYS IN
ADVANCE OF THE ACTION. . . THE EMPLOYEE WILL BE GIVEN THE
OPPORTUNITY TO RESPOND ORALLY
AND/OR IN WRITING TO THE CHARGES PRIOR TO A DECISION ON THE CHARGES .
. . IF THE EMPLOYEE
ELECTS TO MAKE AN ORAL REPLY, THE EMPLOYER WILL RECORD THE REPLY
VERBATIM AND PROVIDE A COPY
OF THE VERBATIM TRANSCRIPT TO THE EMPLOYEE PRIOR TO THE TIME THE
DECIDING OFFICIAL CONSIDERS
THE CASE."
5. BY A LETTER DATED JANUARY 16, 1980 /6/ RESPONDENT INFORMED
RICHARD RODRIGUEZ, AN EMPLOYEE IN THE BARGAINING UNIT WHO WAS EMPLOYED
IN THE PHOENIX, ARIZONA DISTRICT, THAT IT PROPOSED TO SUSPEND HIM FROM
DUTY FOR 30 DAYS BECAUSE OF HIS UNAUTHORIZED USE OF A GOVERNMENT VEHICLE
FOR OTHER THAN OFFICIAL PURPOSES. /7/
6. IN A WRITTEN DECLARATION, DATED JANUARY 18, RODRIGUEZ STATED THAT
HE CHOSE NTEU CHAPTER 33 TO REPRESENT HIM IN THE PROPOSED ADVERSE ACTION
AGAINST HIM.
7. ON JANUARY 21 THE UNION WROTE RESPONDENT THAT IT HAD BEEN ASKED
BY RODRIGUEZ TO REPRESENT HIM AT ALL MEETINGS RE THE PROPOSED "ADVERSE
ACTION ISSUED TO HIM." FURTHER, THE UNION REQUESTED AN ORAL REPLY BE
MADE ON BEHALF OF RODRIGUEZ.
8. BY LETTER DATED JANUARY 29 CAROL W. PERKINS, ASSISTANT COUNSEL
FOR THE UNION HEREIN WROTE STUART ZIDEL, LABOR RELATIONS SPECIALIST OF
RESPONDENT, STATING THAT SHE NEEDED AND REQUESTED THE FOLLOWING
INFORMATION IN ORDER TO PROPERLY REPRESENT RODRIGUEZ AND PREPARE HIS
CASE RE HIS PROPOSED SUSPENSION:
"1. COPIES OF ALL ADVERSE OR DISCIPLINARY ACTIONS FOR THE PAST THREE
YEARS WITHIN YOUR
REGION DEALING WHOLLY OR IN PART WITH VIOLATION OF 31 U.S.C.
638(A)(C)(2) OR ANY OTHER CHARGES
INVOLVING WHOLLY OR IN PART THE UNAUTHORIZED OR IMPROPER USE OR LOSS
OR THEFT, OR DAMAGE OR
NEGLIGENCE IN CONNECTION WITH A GOVERNMENT VEHICLE OR THE
TRANSPORTATION OF UNAUTHORIZED
PERSONS IN A GOVERNMENT VEHICLE.
2. COPIES OF ALL MATERIAL RELIED UPON TO SUPPORT THE CHARGES IN THE
AFORESAID ACTIONS.
3. COPIES OF ALL ORAL AND WRITTEN REPLIES IN THESE ACTIONS.
4. COPIES OF THE LETTERS OF FINAL AGENCY DISPOSITION OF THE ACTIONS.
5. COPIES OF REPORTS OF ANY SUBSEQUENT MITIGATION OR ALTERATION IN
THE AFORESAID
DISPOSITION.
6. COPIES OF ALL RELEVANT PARTS OF INSPECTION INVESTIGATIONS AND/OR
INTERVIEWS INTO THE
IMPROPER USE, LOSS, THEFT, DAMAGE OR NEGLIGENCE (IN CONNECTION WITH A
GOVERNMENT VEHICLE OR
TRANSPORTATION OF UNAUTHORIZED PERSONS IN A GOVERNMENT VEHICLE) IN
WHICH THE EMPLOYEE SUBJECT
OF THE INVESTIGATION WAS NOT PROPOSED FOR DISCIPLINARY OR ADVERSE
ACTION."
9. IN REPLY TO THE AFORESAID REQUEST, ZIDEL WROTE PERKINS THAT
RESPONDENT COULD NOT FURNISH THE INFORMATION SOUGHT BY THE UNION. HE
STATED THAT DATA PERTAINING TO OFFICES OTHER THAN THE PHOENIX DISTRICT
WOULD NOT QUALIFY AS INFORMATION NECESSARY FOR FULL AND PROPER
DISCUSSION; THAT NO ACTIONS WERE TAKEN IN THE PHOENIX DISTRICT DURING
THE PAST THREE YEARS INVOLVING THE SUBJECT AREA ABOUT WHICH PERKINS
INQUIRED; AND THEREFORE NO INFORMATION IS AVAILABLE.
10. THE ORAL REPLY PROCEEDING WAS HELD ON MARCH 20. IT WAS
CONDUCTED BY PETER COONS, THE ORAL REPLY OFFICER DESIGNATED BY THE
DISTRICT DIRECTOR, AND A TRANSCRIPT WAS MADE THEREOF. THE OFFICER
STATED FOR THE RECORD THAT THE PROCEEDING WAS NOT A HEARING; THAT IT
WAS HELD SOLELY TO PERMIT RODRIGUEZ TO PRESENT HIS POSITION AND FURNISH
INFORMATION AND AFFIDAVITS IN SUPPORT OF IT, AND THAT THE ORAL REPLY WAS
NON-ADVERSARY IN NATURE WITH NO CROSS-EXAMINATION CONDUCTED. THE DATA
SOUGHT BY THE UNION, FOR USE AT THE ORAL REPLY PROCEEDING, WAS NOT
FURNISHED BY RESPONDENT.
11. BY LETTER DATED APRIL 17 PRESCOTT A. BERRY, THE PHOENIX DISTRICT
DIRECTOR, INFORMED RODRIGUEZ THAT HIS SUSPENSION WAS WARRANTED, AND THAT
THE EMPLOYEE WOULD BE SUSPENDED FROM APRIL 19 UNTIL MAY 18. THE
DIRECTOR ALSO ADVISED RODRIGUEZ HE HAD THE RIGHT TO APPEAL THIS ACTION
TO THE MERIT SYSTEMS PROTECTION BOARD. THE EMPLOYEE WAS SUSPENDED FOR
30 DAYS EFFECTIVE APRIL 19.
12. THEREAFTER AN APPEAL WAS TAKEN TO THE MERIT SYSTEM PROTECTION
BOARD (MSPB) FROM RESPONDENT'S ADVERSE ACTION TOWARD RODRIGUEZ. BY
LETTER DATED JULY 14 TO GEORGE SWEGMAN, PRESIDING OFFICIAL, MSPB, CAROL
PERKINS REQUESTED A SUBPOENA BE ISSUED TO COMPEL THE PRODUCTION BY
RESPONDENT HEREIN OF THE SAME INFORMATION INITIALLY REQUESTED OF IT FOR
USE AT THE ORAL REPLY PROCEEDING.
13. UNDER DATE OF AUGUST 7, SWEGMAN NOTIFIED PERKINS IN WRITING THAT
A PRE-HEARING CONFERENCE IN RE THE APPEAL OF RODRIGUEZ WOULD BE HELD ON
AUGUST 15. THE PURPOSE OF THE CONFERENCE, AS STATED, WAS TO CLARIFY THE
ISSUES BEFORE MSPB AND TO RESOLVE THE PROBLEMS IN CONNECTION WITH THE
ATTEMPT TO OBTAIN THE INFORMATION FROM RESPONDENT.
14. SUBSEQUENT TO THE PRE-HEARING CONFERENCE AT THE MSPB, AN ORDER
WAS ISSUED ON AUGUST 25 BY PRESIDING OFFICIAL GEORGE SWEGMAN. HE STATED
THEREIN THAT THE INFORMATION SOUGHT BY APPELLANT RODRIGUEZ WAS
"POTENTIALLY RELEVANT TO THE ISSUES RAISED BY APPELLANT." HE FURTHER
DECIDED THAT RECORDS FOR TWO YEARS, RATHER THAN THREE AS REQUESTED,
WOULD PROVIDE ADEQUATE STATISTICAL DATA TO SHOW A PATTERN OF BEHAVIOR.
SWEGMAN ORDERED THE AGENCY TO ASCERTAIN WHETHER THE INFORMATION SOUGHT
IN THE SECOND PART OF APPELLANT'S SPECIFICATIONS 1 AND 6 EXISTS, AND
DIRECTED THE AGENCY TO INDICATE WHERE AND IN WHAT FORM RECORDED.
FURTHER, THE OFFICIAL ORDERED THE EMPLOYER TO DETERMINE THE NUMBER OF
SUCH RECORDED INCIDENTS AND ADVERSE ACTIONS DURING THE TWO YEAR PERIOD;
THAT, IN ACCORD WITH AN AGREEMENT REACHED WITH APPELLANT, IT BE LIMITED
TO 5 OF THE 11 DISTRICTS WITHIN THE REGION. FINALLY, SWEGMAN ORDERED
THE AGENCY TO PROVIDE THESE ANSWERS TO THE PRESIDING OFFICIAL AND
APPELLANT WITHIN 10 DAYS OF RECEIPT OF THIS ORDER.
15. ON SEPTEMBER 8 THE AGENCY FILED WITH THE MSPB A MOTION TO QUASH
THE ORDER ISSUED BY SWEGMAN ON AUGUST 25. THIS WAS OVERRULED BY
PRESIDING OFFICIAL F. L. LIGGETT OF MSPB ON THE GROUND THAT A MOTION TO
QUASH MUST BE ADDRESSED TO A SUBPOENA; THAT NO SUBPOENA HAD BEEN
ISSUED, BUT RATHER AN ORDER BY THE APPEALS BODY. IN HIS ORDER DATED
SEPTEMBER 25 LIGGETT STATED THAT THE ORDER OF AUGUST 25 DID NOT REQUIRE
THE AGENCY TO PRODUCE ANY OF THE INFORMATION REQUESTED BY APPELLANT;
THAT THE ORDER OF AUGUST 25 WAS SIMPLY AN ATTEMPT BY THE PRESIDING
OFFICIAL TO ASCERTAIN WHETHER THE INFORMATION REQUESTED BY APPELLANT
EXISTED IN ANY RETRIEVABLE FORM AT THE IDENTIFIED DISTRICT. SINCE THERE
WAS NO COMPLIANCE WITH THE EARLIER ORDER, LIGGETT ORDERED THE AGENCY TO
SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED UPON IT.
16. BY LETTER DATED OCTOBER 1, ADDRESSED TO LEGGETT, THE RESPONDENT
STATED THAT: (A) THE INFORMATION REQUESTED IN SPECIFICATION 1 IS
MAINTAINED IN THE RECORDS OF THE DISTRICT OFFICES OF PHOENIX, LOS
ANGELES, RENO, SALT LAKE CITY, AND PORTLAND; (B) THE TYPE OF DATA
SOUGHT IN SPECIFICATION 6 IS NOT MAINTAINED IN THE RECORDS OF THE SAID
DISTRICTS, BUT MAY EXIST IN THE INTERNAL SECURITY MANAGEMENT INFORMATION
SYSTEM. HOWEVER, SAID INFORMATION IS NOT RETRIEVABLE BY THE SUBJECT
CATEGORIES SET FORTH IN SAID SPECIFICATION; (C) THERE HAVE BEEN NO
ADVERSE ACTIONS, DURING THE PAST TWO YEARS, OF THE TYPE STATED IN
SPECIFICATION 1 IN THE AFORESAID DISTRICTS; (D) THE RESPONSIBLE
OFFICIALS IN SAID DISTRICTS HAVE NO KNOWLEDGE OF INCIDENTS OF THE TYPE
STATED IN SPECIFICATION 6 DEALING WITH ADVERSE OR DISCIPLINARY ACTIONS
DURING THE LAST TWO YEARS.
CONCLUSIONS
IT IS CONTENDED BY RESPONDENT THAT A REFUSAL TO FURNISH THE
INFORMATION REQUESTED BY THE UNION DOES NOT CONSTITUTE AN UNFAIR LABOR
PRACTICE. THE EMPLOYER ALSO INSISTS THAT THIS ISSUE WAS RAISED IN THE
APPEALS PROCEDURE BEFORE THE MERIT SYSTEM PROTECTION BOARD (MSPB), AND
THUS IT IS BARRED FROM CONSIDERATION HEREIN UNDER SECTION 7116(D) OF THE
ACT. FURTHER, IT TAKES THE POSITION THAT THE MATERIAL WAS NEITHER
RELEVANT NOR NECESSARY TO A DETERMINATION OF WHETHER RODRIGUEZ WAS
PROPERLY SUSPENDED FOR 30 DAYS. RESPONDENT ALSO INSISTS THAT NO
OBLIGATION EXISTS TO PROVIDE INFORMATION TO A UNION OFFICIAL DIVORCED
FROM THE BARGAINING PROCESS.
APPLICABILITY OF SECTION 7116(D) OF THE ACT
IT IS PROVIDED IN PERTINENT PART, UNDER SECTION 7116(D) OF THE ACT AS
FOLLOWS:
"ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY
NOT BE RAISED AS UNFAIR
LABOR PRACTICES PROHIBITED UNDER THIS SECTION." RESPONDENT CONTENDS
THAT THE ABOVE SECTION WAS ENACTED IN SUBSTANTIALLY THE SAME LANGUAGE AS
ITS PRECURSOR, SECTION 19(D) OF EXECUTIVE ORDER 11491, AS AMENDED.
FURTHER, THAT ITS INTENT, AS SET FORTH IN THE LEGISLATIVE HISTORY, WAS
TO PRECLUDE RELITIGATION OF THE SAME ISSUES. WHERE ADVERSE ACTION
MATTERS ARE COVERED BY A NEGOTIATED GRIEVANCE PROCEDURE, AN EMPLOYEE
MUST ELECT BETWEEN THAT COURSE OF ACTION OR APPLICABLE STATUTORY
PROCEDURES. IT IS ARGUED THAT THE UNION REQUESTED THE INFORMATION
HEREIN TO REPRESENT RODRIGUEZ RE HIS PROPOSED SUSPENSION; THAT THE
ISSUE PRESENTED WAS WHETHER THE INFORMATION WAS RELEVANT TO THE ADVERSE
ACTION AGAINST THIS EMPLOYER; AND THAT THE ISSUE WAS ADJUDICATED UNDER
THE STATUTORY PROCEDURE BEFORE THE MERIT SYSTEM PROTECTION BOARD. TO
THIS END, AND IN SUPPORT OF ITS POSITION, THE EMPLOYER RELIES UPON
SEVERAL CASES WHERE UNFAIR LABOR PRACTICE COMPLAINTS WERE DISMISSED ON
THE GROUND THAT THE ISSUES PRESENTED THEREIN WERE RAISED IN A PRIOR
PROCEEDING. SEE INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS, 3 FLRA NO.
75; BOSTON DISTRICT OFFICE, INTERNAL REVENUE SERVICE, A/SLMR NO. 727.
WHILE THE MATTER IS NOT FREE FROM DOUBT, I AM PERSUADED THAT THE
CITED CASES ARE DISTINGUISHABLE FROM THE ONE AT BAR. MOREOVER, I AM
CONSTRAINED TO FIND THAT THE PRECISE ISSUE RAISED BY THE UNION'S UNFAIR
LABOR PRACTICE CHARGE HEREIN IS DISSIMILAR FROM THE QUESTION RAISED OR
RESOLVED AT THE STATUTORY APPEALS PROCEEDING. AS HEREINAFTER SET FORTH
IN MORE DETAIL, I CONCLUDE THAT THE MERIT SYSTEM PROTECTION BOARD LACKED
THE AUTHORITY TO, AND DID NOT, PASS UPON THE ENTITLEMENT OF THE UNION AS
THE BARGAINING REPRESENTATIVE TO THE INFORMATION INITIALLY REQUESTED
FROM RESPONDENT IN PURSUANCE OF ITS DUTIES.
IN THE CHICAGO, IRS CASE, SUPRA, THE EMPLOYER PROPOSED TO SUSPEND TWO
BARGAINING UNIT EMPLOYEES AS A DISCIPLINARY ACTION. BOTH INDIVIDUALS
FILED GRIEVANCES UNDER THE NEGOTIATED AGREEMENT. A UNION REPRESENTATIVE
REQUESTED CERTAIN INFORMATION FROM THE EMPLOYER, ON BEHALF OF THE TWO
GRIEVANTS, IN CONNECTION WITH THE REPRESENTATION OF THEM IN THEIR
GRIEVANCES OF THE DISCIPLINARY ACTIONS. THE INFORMATION WAS NOT
PRODUCED. IN THE COMPLAINT PROCEEDING BEFORE THE AUTHORITY IT WAS
ALLEGED THAT THE UNION AND THE AGGRIEVED EMPLOYEES HAD REQUESTED
RELEVANT AND NECESSARY INFORMATION RELATING TO THE SUSPENSION OF THESE
INDIVIDUALS; THAT SAID REQUEST WAS FOR THE PURPOSE OF REPRESENTING THE
EMPLOYEE RE THE PROPOSED ACTION; AND THAT THE EMPLOYER REFUSED TO
FURNISH SAME.
IT WAS HELD THAT THE ELECTION BY THE GRIEVANTS TO RAISE THE
NON-PRODUCTION OF INFORMATION IN THEIR GRIEVANCES PRECLUDES THE UNION
FROM RAISING THE SAME ISSUES UNDER UNFAIR LABOR PRACTICE PROCEDURES.
THE INFORMATION WAS REQUESTED ON THEIR BEHALF RE THE DISCIPLINARY
ACTION, AND FAILURE TO FURNISH THE INFORMATION WAS RAISED IN THEIR
GRIEVANCE. SINCE THE DATA WAS NEEDED TO REPRESENT THE INDIVIDUALS AT
THE DISCIPLINARY PROCEEDING, THE UNION WAS NOT PERMITTED TO RAISE THE
SAME REFUSAL TO FURNISH THE INFORMATION IN AN UNFAIR LABOR PRACTICE
MATTER. AS SUCH, IT WAS BARRED BY SECTION 7116(D) OF THE ACT.
IN THE BOSTON, IRS CASE, SUPRA, AN ADVERSE ACTION PROCEEDING WAS
INITIATED BY THE EMPLOYER AGAINST AN EMPLOYEE FOR IMPROPER CONDUCT.
COUNSEL FOR THE BARGAINING AGENT REQUESTED INFORMATION FROM THE AGENCY
WHICH IT DEEMED RELEVANT IN THE REPRESENTATION OF THE INDIVIDUAL DURING
SUCH PROCEEDING. IT WAS REFUSED. THEREAFTER ARBITRATION WAS INVOKED
AND THE UNION ASSERTED IT NEEDED THE DATA TO FULFILL ITS ROLE AS THE
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEE. THE UNION RELIED UPON PAST
DECISIONS IN THE PUBLIC SECTOR RE THE RIGHTS OF SUCH REPRESENTATIVE TO
OBTAIN SUCH MATERIAL. THE ISSUE WAS LITIGATED BEFORE THE ARBITRATOR,
AND THE LATTER ISSUED A WRITTEN RULING AS TO WHETHER THE UNION WAS
ENTITLED TO SUCH INFORMATION.
AN UNFAIR LABOR PRACTICE COMPLAINT /8/ WAS FILED BY THE UNION PRIOR
TO THE HEARING BEFORE THE ARBITRATOR. IN A DECISION INVOLVING THE
ALLEGED UNFAIR LABOR PRACTICE, BASED ON A FAILURE TO FURNISH THE
INFORMATION REQUESTED FROM THE AGENCY, THE ASSISTANT SECRETARY CONCLUDED
THE ACTION WAS BARRED BY 19(D) OF THE ORDER. HE RELIED ON THE FACT THAT
THE ISSUE WAS LITIGATED BEFORE THE ARBITRATOR, AND THAT THE UNION
PRESSED ITS RIGHT AS A LABOR ORGANIZATION TO OBTAIN MATERIAL FROM AN
ACTIVITY IN PROCESSING A GRIEVANCE OR PURSUING ITS RESPONSIBILITIES AS
AN EXCLUSIVE REPRESENTATIVE.
BOTH OF THE CITED DECISIONS INVOLVE FACTUAL DIFFERENCES WHICH, IN MY
OPINION, COMPEL THE CONCLUSION THAT THEY ARE NOT DETERMINATIVE OF THE
MATTER AT HAND. THUS, IN THE CHICAGO, IRS CASE THE INFORMATION
REQUESTED WAS SOLELY FOR THE PURPOSE OF REPRESENTING THE TWO EMPLOYEES
IN THE GRIEVANCE PROCEEDING. THE DATA WAS SOUGHT ON THEIR BEHALF IN
CONNECTION WITH THE DISCIPLINARY ACTIONS. IT WAS NOT REQUESTED BY THE
UNION IN CONJUNCTION WITH ITS RIGHT AS BARGAINING AGENT IN ORDER TO
FULFILL ITS DUTIES AS SUCH REPRESENTATIVE. IN FACT, JUDGE DEVANEY
SPECIFICALLY STATED THAT "THIS CASE DOES NOT INVOLVE A REQUEST BY THE
UNION FOR INFORMATION 'QUA' THE UNION, AND NOTHING HEREIN IS INTENDED,
NOR SHALL IT BE SO CONSTRUED, AS DISPOSITION OF A UNION'S INDEPENDENT
RIGHT TO REQUEST INFORMATION NECESSARY OR APPROPRIATE FOR THE DISCHARGE
OF THE UNION'S OVERALL BARGAINING RESPONSIBILITY . . . ". THUS, NO
DETERMINATION WAS MADE AS TO THE APPLICABILITY OF SECTION 7116(D) WHERE
THE UNION, QUA THE UNION, REQUESTED INFORMATION AND AN INDIVIDUAL
GRIEVANCE HAS RESULT IN A REFUSAL TO FURNISH INFORMATION. IN THE
BOSTON, IRS CASE THE UNION PRESSED ITS RIGHT TO THE DATA REQUESTED AS A
BARGAINING REPRESENTATIVE TO FULFILL ITS DUTIES AS THE EXCLUSIVE AGENT.
ITS POSITION, IN THIS RESPECT, WAS CONSIDERED BY THE ARBITRATOR, AND
THEREFORE COULD NOT BE ADJUDICATED AGAIN IN THE UNFAIR LABOR PRACTICE
PROCEEDING.
IN THE CASE AT BAR THE ISSUE RAISED BEFORE THE MSPB, WITH RESPECT TO
THE DATA REQUESTED, WAS WHETHER EMPLOYEE RODRIGUEZ, OR SOMEONE ON HIS
BEHALF, SHOULD RECEIVE THE INFORMATION FOR USE IN THE APPEALS
PROCEEDING. THE ISSUE RAISED BEFORE THE UNDERSIGNED, IN THIS UNFAIR
LABOR PRACTICE MATTER, IS WHETHER THE UNION WAS ENTITLED TO THE
INFORMATION REQUESTED (ALBEIT THE SAME MATERIAL) TO FULFILL ITS DUTIES
AS BARGAINING REPRESENTATIVE OF THE EMPLOYEES, INCLUDING RODRIGUEZ. IN
THE FIRST INSTANCE THE EMPLOYEE, AS THE APPELLANT, SEEKS THE INFORMATION
TO CONVINCE THE MSPB THAT HIS SUSPENSION WAS WRONGFUL OR NOT
JUSTIFIABLE. THE UNION, AS BARGAINING REPRESENTATIVE, WOULD HAVE HAD NO
STANDING QUA UNION BEFORE THE APPEALS BODY. /9/ IN THE SECOND INSTANCES
THE UNION NEEDED THE MATERIAL AT THE OUTSET TO ACT AS REPRESENTATIVE OF
THE BARGAINING UNIT. IN THE COURSE THEREOF IT COULD ATTEMPT TO CONVINCE
MANAGEMENT AT THE ORAL REPLY MEETING THAT UNIT EMPLOYEE RODRIGUEZ SHOULD
NOT BE SUSPENDED. TO PURSUE THIS ENDEAVOR CERTAIN INFORMATION
REQUESTED, I.E. DISCIPLINE METED TO OTHER EMPLOYEES FOR SIMILAR
INFRACTIONS, OR THE FAILURE TO INVOKE DISCIPLINARY ACTIONS, COULD WELL
BE MATERIAL AND HELPFUL. THE MSPB, IN THE STATUTORY APPEALS PROCEDURE,
COULD NOT PASS UPON THE QUESTION AS TO WHETHER THE UNION SHOULD OBTAIN
THE MATERIAL TO FULFILL ITS FUNCTION AS AFORESAID. THIS DETERMINATION
MUST BE MADE IN AN UNFAIR LABOR PRACTICE PROCEEDING. A CONTRARY RESULT
WOULD MEAN THAT IF A UNION SEEKS INFORMATION TO REPRESENT A BARGAINING
UNIT EMPLOYEE LIKELY TO BE DISCIPLINED, IT COULD NOT PERFORM ITS
FUNCTION AND OBTAIN SAME IN THE EVENT THE EMPLOYEE APPEALS THE ADVERSE
ACTION AND SEEKS SIMILAR DATA FOR USE BEFORE THE APPEALS BODY. THIS
NECESSARILY CONSTRICTS THE EFFECTIVENESS OF THE BARGAINING
REPRESENTATIVE. ACCORDINGLY, I CONCLUDE THAT THE PRESENT PROCEEDING IS
NOT BARRED UNDER SECTION 7114(D) OF THE ACT.
RELEVANCE AND NECESSITY OF INFORMATION REQUESTED
THE ESSENTIAL DATA SOUGHT BY THE UNION COMPRISES DISCIPLINARY ACTIONS
TAKEN BY THIS EMPLOYER WHICH INVOLVE INFRACTIONS BY OTHER EMPLOYEES OF A
SIMILAR NATURE. IN THIS RESPECT THE BARGAINING AGENT DESIRED MATERIAL
RELIED UPON TO SUPPORT THE CHARGES IN OTHER ACTIONS, AS WELL AS REPLIES
FROM THE EMPLOYEES AND ALL REPORTS SHOWING DISPOSITION OR MITIGATIONS,
OF SUCH ACTIONS. SUCH MATERIAL IS, IN MY OPINION, CLEARLY RELEVANT AND
NECESSARY /10/ FOR THE UNION TO FULFILL ITS OBLIGATION IN REPRESENTING A
UNIT EMPLOYEE UNDERGOING DISCIPLINARY TREATMENT. THE AUTHORITY HAS
RECOGNIZED THE RELEVANCE OF SUCH DATA IN INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT, JACKSONVILLE, FLORIDA, 1 FLRA NO. 35. IN THE
CITED CASES MANAGEMENT PROPOSED DISCIPLINARY ACTION TOWARD A
PROBATIONARY EMPLOYEE. THE UNION THEREIN SOUGHT DATA RE WORK RECORDS OF
SIX OTHER PROBATIONERS IN ORDER TO PROPERLY REPRESENT THE PARTICULAR
EMPLOYEE. IT WAS HELD THAT SUCH INFORMATION WAS RELEVANT AND NECESSARY
FOR THE BARGAINING AGENT TO FULFILL ITS OBLIGATION. DISPARITY OF
TREATMENT ACCORDED EMPLOYEES COULD WELL BE A SIGNIFICANT CONSIDERATION,
AND PERFORMANCE DATA OF OTHER PROBATIONERS WAS DEEMED RELEVANT IN
DETERMINING WHETHER DISCIPLINE OF THE PROBATIONERS WAS JUSTIFIABLE.
I CONSIDER THE AFOREMENTIONED CASE TO BE DECISIVE IN CONCLUDING THAT
THE INFORMATION SOUGHT HEREIN WAS BOTH RELEVANT AND NECESSARY. ACTION
TAKEN BY RESPONDENT IN RESPECT TO OTHER EMPLOYEES CHARGED WITH THE SAME
INFRACTION MIGHT WELL ASSIST THE UNION IN CONTENDING THAT THE PROPOSED
SUSPENSION OF RODRIGUEZ IN 30 DAYS WAS UNFAIR AND SHOULD NOT OCCUR. AS
SUCH, IT IS CLEARLY RELEVANT AND NECESSARY. FAILURE TO FURNISH SAME
CONSTITUTES A VIOLATION OF SECTION 7116(A)(1), (5) AND (8) OF THE ACT.
/11/ ACCORDINGLY, I CONCLUDED THAT: (A) THE PRESENT COMPLAINT WAS NOT
BARRED UNDER SECTION 7116(D) OF THE ACT BY REASON OF THE MSPB PROCEEDING
WHEREIN RODRIGUEZ SOUGHT THE SAME INFORMATION AS REQUESTED INITIALLY BY
THE UNION HEREIN; (B) RESPONDENT'S FAILURE TO FURNISH SUCH DATA TO THE
UNION, WHICH IS CLEARLY RELEVANT AND NECESSARY TO ITS PROPER
REPRESENTATIONAL DUTIES, RAN AFOUL OF SECTION 7116(A)(1), (5) AND (8) OF
THE ACT.
REMEDY
IN ITS BRIEF THE GENERAL COUNSEL SEEKS, IN ADDITION TO THE
INFORMATION REQUESTED, THAT THE ORAL REPLY BE CONDUCTED AGAIN TO ALLOW
RESPONDENT TO RECONSIDER THE ADVERSE ACTION TAKEN AGAINST RODRIGUEZ. A
FULL STATUS QUO ANTE REMEDY APPEARS UNWARRANTED IN VIEW OF THE DECISION
RENDERED BY THE MERIT SYSTEM PROTECTION BOARD. COMPLETE RESTORATION
WOULD REQUIRE DISTURBANCE OF THE RULING BY AN APPELLATE BODY.
NEVERTHELESS, I BELIEVE THE UNION SHOULD BE ENTITLED, UPON REQUEST OF
THE DATA SOUGHT HEREIN, TO EVALUATE AND UTILIZE IT IN REPRESENTING
RODRIGUEZ DURING AN ORAL INTERVIEW. IN FULFILLING ITS DUTIES AS
BARGAINING REPRESENTATIVE THE UNION MAY ATTEMPT TO PERSUADE RESPONDENT
THAT ITS ACTION WAS UNJUSTIFIABLE IN LIGHT OF THE INFORMATION FURNISHED
BY THE EMPLOYER. ACCORDINGLY, I AGREE THAT A PROPER REMEDY, IN ADDITION
TO SUPPLYING THE DATA REQUESTED, CALLS FOR ANOTHER ORAL REPLY TO ENABLE
THE RESPONDENT TO RECONSIDER ITS ADVERSE ACTIONS.
HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTIONS
7116(A)(1), (5) AND (8) OF THE ACT, IT IS RECOMMENDED THAT THE 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, THE
AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, WESTERN
REGION, SAN FRANCISCO, CALIFORNIA SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION THE
DOCUMENTS AND MATERIAL
REQUESTED BY IT ON JANUARY 29, 1980, WHICH WERE NECESSARY AND
RELEVANT TO A DETERMINATION BY
THE NATIONAL TREASURY EMPLOYEES UNION IN ORDER TO DISCHARGE ITS
REPRESENTATIONAL OBLIGATION TO
EMPLOYEE RICHARD RODRIGUEZ.
(B) CONDUCTING AN ORAL REPLY PROCEEDING TO CONSIDER ANY PROPOSED
DISCIPLINE OF, OR ADVERSE
ACTION TOWARD, EMPLOYEE RICHARD RODRIGUEZ WITHOUT FIRST FURNISHING,
UPON REQUEST, TO THE
NATIONAL TREASURY EMPLOYEES UNION ANY DOCUMENTS AND MATERIAL WHICH
ARE NECESSARY AND RELEVANT
TO A DETERMINATION BY THE NATIONAL TREASURY EMPLOYEES UNION IN ORDER
TO DISCHARGE ITS
REPRESENTATIONAL OBLIGATION TO EMPLOYEE RICHARD RODRIGUEZ.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND FAILURE OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION
THE DOCUMENTS AND
MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, WHICH WERE NECESSARY
AND RELEVANT TO A
DETERMINATION BY THE NATIONAL TREASURY EMPLOYEES UNION IN ORDER TO
DISCHARGE ITS
REPRESENTATIONAL OBLIGATION TO EMPLOYEE RICHARD RODRIGUEZ.
(B) CONDUCT A NEW ORAL REPLY PROCEEDING TO RECONSIDER THE PAST
SUSPENSION AND/OR DISCIPLINE
OF EMPLOYEE RICHARD RODRIGUEZ AFTER FURNISHING, UPON REQUEST, THE
DOCUMENTS AND MATERIAL
REQUESTED BY THE NATIONAL TREASURY EMPLOYEES UNION ON JANUARY 29,
1980, WHICH WERE NECESSARY
AND RELEVANT TO A DETERMINATION OF THE NATIONAL TREASURY EMPLOYEES
UNION IN ORDER TO DISCHARGE
ITS REPRESENTATIONAL OBLIGATION TO EMPLOYEE RICHARD RODRIGUEZ.
(C) POST AT ITS FACILITIES IN SAN FRANCISCO, CALIFORNIA COPIES OF THE
ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE REGIONAL
COMMISSIONER 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
REGIONAL COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT
NOTICES ARE NOT ALTERED,
DEFACED, OR COERCED BY ANY OTHER MATERIALS.
(D) NOTIFY THE REGIONAL DIRECTOR OF REGION IX, 450 GOLDEN GATE
AVENUE, ROOM 11408, P.O. BOX
36016, SAN FRANCISCO, CALIFORNIA 94102 IN WRITING WITHIN 30 DAYS FROM
THE DATE OF THIS ORDER
AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: MAY 6, 1981
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 WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO FURNISH TO THE NATIONAL TREASURY EMPLOYEES UNION
THE DOCUMENTS AND MATERIAL REQUESTED BY IT ON JANUARY 29, 1980, WHICH
WERE NECESSARY AND RELEVANT TO A DETERMINATION BY THE NATIONAL TREASURY
EMPLOYEES UNION IN ORDER TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION TO
EMPLOYEE RICHARD RODRIGUEZ. WE WILL NOT CONDUCT AN ORAL REPLY
PROCEEDING TO CONSIDER ANY PROPOSED DISCIPLINE OF, OR ADVERSE ACTION
TOWARD, RICHARD RODRIGUEZ WITHOUT FIRST FURNISHING, UPON REQUEST, TO THE
NATIONAL TREASURY EMPLOYEES UNION ANY DOCUMENTS AND MATERIAL WHICH ARE
NECESSARY AND RELEVANT TO A DETERMINATION BY THE NATIONAL TREASURY
EMPLOYEES UNION IN ORDER TO DISCHARGE ITS REPRESENTATIONAL OBLIGATION TO
EMPLOYEE RICHARD RODRIGUEZ. 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 THE NATIONAL TREASURY
EMPLOYEES UNION THE DOCUMENTS AND MATERIAL REQUESTED BY IT ON JANUARY
29, 1980, WHICH WERE NECESSARY AND RELEVANT TO A DETERMINATION BY THE
NATIONAL TREASURY EMPLOYEES UNION IN ORDER TO DISCHARGE ITS
REPRESENTATIONAL OBLIGATION TO EMPLOYEE RICHARD RODRIGUEZ. WE WILL
CONDUCT A NEW ORAL REPLY PROCEEDING TO RECONSIDER THE PAST SUSPENSION
AND/OR DISCIPLINE OF EMPLOYEE RICHARD RODRIGUEZ AFTER FURNISHING, UPON
REQUEST, THE DOCUMENTS AND MATERIAL REQUESTED BY THE NATIONAL TREASURY
EMPLOYEES UNION ON JANUARY 29, 1980, WHICH WERE NECESSARY AND RELEVANT
TO A DETERMINATION OF THE NATIONAL TREASURY EMPLOYEES UNION IN ORDER TO
DISCHARGE ITS REPRESENTATIONAL OBLIGATION TO EMPLOYEE RICHARD RODRIGUEZ.
(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 MATERIALS. IF EMPLOYEES HAVE ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS, THEY
MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR FOR THE FEDERAL
LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: REGION 9, 450 GOLDEN GATE
AVENUE, ROOM 11408, P.O. BOX 36016, SAN FRANCISCO, CALIFORNIA 94102;
TELEPHONE (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ IN HIS DECISION, THE JUDGE INADVERTENTLY INTERCHANGED REFERENCES
TO THE RESPONDENT, THE INTERNAL REVENUE SERVICE, WESTERN REGION, SAN
FRANCISCO, CALIFORNIA, WITH REFERENCES TO INTERNAL REVENUE SERVICE,
PHOENIX DISTRICT OFFICE. THE AUTHORITY CORRECTS THIS INADVERTENT ERROR,
NOTING THAT THE INTERNAL REVENUE SERVICE, WESTERN REGION, SAN FRANCISCO,
CALIFORNIA, IS THE RESPONDENT HEREIN, AND THE INTERNAL REVENUE SERVICE,
PHOENIX DISTRICT OFFICE IS ORGANIZATIONALLY PART OF THE RESPONDENT. THE
RESPONDENT WESTERN REGION WAS THE PARTY WHICH REFUSED TO PROVIDE THE
INFORMATION REQUESTED BY THE UNION IN ITS CAPACITY AS EXCLUSIVE
REPRESENTATIVE OF A MEMBER OF THE BARGAINING UNIT.
/2/ THE JUDGE CONCLUDED THAT THE COMPLAINT HEREIN WAS NOT BARRED BY
SECTION 7116(D) OF THE STATUTE, AS CONTENDED BY THE RESPONDENT. IN THIS
REGARD, HE FOUND THAT THE ISSUE RAISED IN THE UNFAIR LABOR PRACTICE
PROCEEDING AS TO WHETHER THE UNION WAS ENTITLED TO INFORMATION REQUESTED
IN ORDER TO FULFILL ITS DUTIES AS EXCLUSIVE BARGAINING REPRESENTATIVE OF
THE EMPLOYEES IN THE BARGAINING UNIT WAS NOT THE SAME ISSUE AS THAT
RAISED BY AN EMPLOYEE WHO WAS ASSERTING HIS OWN RIGHT TO SUCH
INFORMATION AS THE APPELLANT IN A STATUTORY APPEAL PROCEEDING BEFORE THE
MERIT SYSTEMS PROTECTION BOARD (MSPB). FOR THE REASONS MORE FULLY
STATED BY THE JUDGE IN HIS DECISION, THE AUTHORITY AGREES THAT THE
UNION'S RIGHT TO THE INFORMATION COULD NOT HAVE BEEN RAISED OR DECIDED
IN THE PROCEEDING BEFORE MSPB AND THEREFORE WAS NOT BARRED BY SECTION
7116(D) FROM BEING RAISED HEREIN AS AN UNFAIR LABOR PRACTICE.
/3/ SEE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO, 7
FLRA NO. 100 (1982); DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD,
4 FLRA NO. 82 (1980); INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT,
JACKSONVILLE, FLORIDA, 1 FLRA 265 (1979).
/4/ THIS DECISION WAS NOT APPEALED, AND UNDER THE MSPB'S RULES HAS
BECOME FINAL.
/5/ STIPULATIONS AT THE HEARING BETWEEN THE PARTIES REFLECT THAT THE
UNION IS THE COLLECTIVE BARGAINING AGENT FOR EMPLOYEES OF RESPONDENT IN
AN APPROPRIATE UNIT, AND THAT THE EMPLOYEE INVOLVED HEREIN IS A MEMBER
OF SUCH UNIT.
/6/ UNLESS OTHERWISE INDICATED, ALL DATES HEREINAFTER MENTIONED OCCUR
IN 1980.
/7/ SUCH USE IS PROHIBITED UNDER 31 U.S.C. 638(A)(C)(2) AND PROVIDES
FOR SUSPENSION FROM DUTY OF THE EMPLOYEE FOR NOT LESS THAN ONE MONTH.
/8/ IN CONFORMITY WITH THE PROCEDURES APPLICABLE UNDER EXECUTIVE
ORDER 11491, AS AMENDED, THE CHARGING PARTY FILED A COMPLAINT AGAINST
RESPONDENT.
/9/ IN ITS BRIEF RESPONDENT STATES THE UNION HAD NO RIGHT TO
REPRESENT RODRIGUEZ BEFORE THE MSPB. THIS CONTENTION SUPPORTS THE
CONCLUSION THAT THE LATTER COULD NOT HAVE PASSED UPON THE UNION'S
ENTITLEMENT TO THE INFORMATION AS BARGAINING REPRESENTATIVE.
/10/ RESPONDENT ARGUES THAT THE UNION HAS NO RIGHT TO REPRESENT AN
EMPLOYEE IN A STATUTORY APPEALS PROCEDURE. IT INSISTS THE REQUESTED
INFORMATION MUST BE RELEVANT TO THE LABOR ORGANIZATION'S ABILITY TO
FULFILL ITS DUTY. THUS, SINCE THE UNION HAS NO SUCH RIGHT OR
OBLIGATION, NO RELEVANCE OF THE DATA CAN BE SHOWN. THIS ARGUMENT,
SOMEWHAT SPECIOUS, IS REJECTED IN LIGHT OF MY PRIOR FINDINGS RE THE DUTY
OF THE UNION TO REPRESENT EMPLOYEES WHEN PROPOSED DISCIPLINARY ACTION IS
INITIALLY COMMENCED.
/11/ RESPONDENT'S FAILURE TO FURNISH THE DATA BREACHES SECTION
7114(B)(4).