HOW TO VERIFY MANAGERS HAVE BEEN DISCIPLINED

Every time EEOC finds a manager discriminated against an employee it orders the agency to “consider” disciplining the manager.  It does not appear to have the power to order discipline no matter how egregious the violations of an employee’s civil rights. Only the Special Counsel and MSPB have that power. However, someone must ask them to do so before they can. Ideally, that would be the employee’s union. A 2019 FLRA decision gives unions a way to find out what, if any, disciplinary action the agency took voluntarily and to assemble the information needed to put a case before the SC/MSPB where it can be prosecuted as a manager committing a prohibited personnel practice.  In Dep’t of Veteran Affairs, Georgia and NFFE, 71 FLRA No. 82 (2019) …

the agency convened an investigation board to determine whether some managers had violated ethics rules; it turned out they had. The union asked for an unredacted copy of the board’s decision letter; (2) a transcript of its proceeding; and (3) its corrective action recommendation. When the agency refused to release, the union filed a ULP grievance. Here is the particularized need (PN) statement it offered:

This information is necessary to evaluate the actions and/or inactions of the Agency in complying with law, rule, regulation, and contractual requirement.  Specifically, the information may be necessary to defend employees represented by the union from potential discipline based on bullying, intimidation, harassment, fraud or other harassment.  Conversely, the information may show that the Union need[s] to file a grievance against management based on harassment by agency managers or failure to prevent bullying, intimidation and harassment.  The information will be used to determine if a grievance and/or other legal remedy is required to protect the rights of bargaining unit employees and/or the Union.

The arbitrator sustained the union’s grievance and when the agency filed exceptions, the FLRA began with a good summary of the PN case law:

The Authority has found that the union establishes a particularized need where it states that it needs the information: (1) to assess whether to file a grievance; (2) in connection with a pending grievance; (3) to determine how to support and pursue a grievance; or (4) to assess whether to arbitrate or settle a pending grievance.  The union’s explanation must be more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether the Statute requires the agency to furnish the information.  However, “a union’s request for information ‘need not be so specific’ as ‘to reveal its strategies.’”  In many cases, a union will not be aware of the contents of a requested document, and the degree of specificity required of a union must take that into account.  Further, a union’s right to information is not dependent on whether the information is reasonably available from an alternative source.

The Authority followed that summary up with the following conclusion.

We reject the argument that a union has failed to articulate its need with requisite specificity, where, as here, the information request referenced a specific agency action and specified that the union needed the information to assess: (1) whether the agency violated established policies, and (2) whether to file a grievance, even though the union did not explain exactly how the information would enable it to determine whether to file a grievance. The Authority has emphasized that such information is necessary because arbitration can function properly only when the grievance procedures leading to it are able to sift out unmeritorious grievances.

Then it shot down the agency’s Privacy Act objection to releasing unredacted information with the following ruling:

However, considering the nature and scope of the wrongdoing at issue, as well as the fact that the disciplined employees were management officials, we discern no error in the Judge’s finding that identification of those individuals would “further the public interest in ensuring that ‘disciplinary measures imposed are adequate, and that those who are accountable are dealt with in an appropriate manner.’”  The Agency’s bare assertion that it “took appropriate discipline against the managers who were recommended discipline” is insufficient to serve that purpose.  Moreover, the Agency has not contested the Judge’s finding that the public interest in disclosure outweighs the privacy interests at stake in this case.

This is a surprisingly reasonable and fair decision given that Trump’s two anti-labor, ethically-challenged thugs, i.e., Kiko and Abbott, were part of it. It is one a union can use to force the agency to reveal whether or not managers were disciplined. Follow footnote 51 particularly if you want to get your hands on these records.