In the Matter of
International Brotherhood of Teamsters,
Local 264,
Charging Party,
and
County of Erie and Erie
County Sheriff,
Respondent.
Case No. U-23017
36 NYPER (LRP) P3021
2003 NYPER (LRP) LEXIS 86
May 7, 2003 Decided
Before
Michael R. Cuevas, Chairman
This
case comes to us on exceptions filed by the County of Erie and the Erie County
Sheriff (County) and cross-exceptions filed by the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Local 264
(Teamsters) to a decision of an Administrative Law Judge (ALJ) finding that the
County violated § 209-a.1(d) of the Public Employees’ Fair Employment Act (Act)
when it refused the request of the Teamsters’ counsel to provide certain
necessary and relevant documentation regarding disciplinary charges against a
unit employee. The County argued in its answer that the charge was untimely and
that the parties’ collective bargaining agreement covered the at-issue dispute.
Exceptions
The
County excepts to the ALJ’s decision arguing that the ALJ erred by applying the
incorrect legal standard, by failing to defer the charge to the parties’
contractual grievance arbitration procedure, in failing to find that the
parties had negotiated to completion their rights in disciplinary proceedings
and the Teamsters had waived their statutory rights to the information, in
finding that the Teamsters’ need for the information outweighed the County’s
interest in maintaining confidentiality, and in rejecting the County’s
arguments regarding the applicability of the public interest privilege and the
Civil Rights Law to the disclosure of
the information sought by the Teamsters. The Teamsters argues in the
cross-exceptions that the ALJ erred by failing to allow the Teamsters to amend
the improper practice charge in its post-hearing brief to include an allegation
that the County’s actions had also violated § 209-a.1(a) of the Act. In all
other respects, the Teamsters supports the decision of the ALJ. Based upon our
review of the record and our consideration of the parties’ arguments, we affirm
the ALJ’s decision. Facts
The
facts are largely undisputed, are set forth in detail in the ALJ’s decision n1
and are repeated here only as necessary for our consideration of the exceptions
and cross-exceptions. The Teamsters represents a unit of employees of the Erie
County Sheriff’s Department (Sheriff). A deputy sheriff in the unit, Paul Bartolomeo, was
discharged at a meeting held on January 4, 2002. By letter issued the same day
by Undersheriff Timothy Howard, Bartolomeo was informed of the basis of his
discharge. The letter states:
On December
27, 2001 you were given an opportunity to explain your alleged inappropriate
conduct on or about September 7, 2001 involving Nurse [A], n2 your alleged
conduct in a holding center stairwell with Deputy [B] during the fall of 2000,
and your alleged inappropriate remarks made to [C] and Deputy [D] during the
past year. Prior to this meeting, you were informed by me, both verbally and in
writing, of the conduct which was being investigated and of the purpose [of]
that meeting. You were also advised that the alleged conduct could result in
disciplinary action up to and including termination. Further you were advised
that you were entitled to union representation at that meeting. You appeared for this
meeting accompanied by Deputy Richard Carr as a Union Representation [sic].
During this
meeting you were read a series of statements regarding your alleged conduct,
and following each, you were given an opportunity to comment. Following this
you were provided an opportunity to make any additional comments before a
decision was made concerning what if any disciplinary action would be taken. I have reviewed the
information and allegations concerning your conduct as referenced above. I have
also given consideration to any comments or explanations you offered. It is my determination that you
violated the following official policies; [citations to Erie County Sheriff’s
Office Policy and Procedure Manual Sections and Erie County Holding Center
Policies and Procedures omitted] . . .by making unwelcome verbal and or
physical sexual advances to female employees, while on duty; . . .by not
cooperating fully and completely with detectives of the Internal Affairs Unit
during the investigation of these incidents; . . .by engaging in unbecoming
conduct; by engaging in sexual harassment, and having your penis exposed to
female employees; by not being truthful when explaining your conduct, and by
not properly performing your duties . . . It is my determination that as a
result of the above mentioned conduct that your employment with the Erie County
Sheriff’s Office be terminated immediately. n3
Thereafter, Bartolomeo filed a
grievance challenging his discharge. The Teamsters then made several requests
to the County for information relative to the processing of the grievance,
culminating in a letter dated April 25, 2002, from the Teamsters’ counsel,
requesting a “complete copy of the investigatory file, or files, including any
such files from internal affairs, of the alleged incident or incidents that
formed the basis of the Sheriff’s decision to discharge Mr. Bartolomeo.” n4 The
County has refused to provide the Teamsters with any of the requested files. On
June 7, 2000, the Teamsters gave the County a signed authorization from
Bartolomeo for release to the Teamsters of his personnel file or files and any
investigatory reports relative to his discipline and discharge. The County then
provided the Teamsters with Bartolomeo’s personnel file but has refused to
provide the investigatory reports. The files requested by the Teamsters are those
from the two investigations that were conducted into Bartolomeo’s conduct, one
by the County Equal Employment Opportunity Office (EEO) and one by the Sheriff’s
Internal Affairs Unit (Internal Affairs), that resulted in Bartolomeo’s
discharge. The EEO file
contains a “confidential” memorandum to the file by the EEO investigator, which
includes a list of the persons interviewed during the investigation, a summary
of each of the interviews and a conclusion; a “confidential” memorandum to
Howard relaying the EEO’s findings; and copies of letters issued by the
investigator to the complainants and Bartolomeo. The letters contain assurances
that the contents of the investigation are confidential and will not be shared
with anyone who does not have a legitimate need to know. The Internal
Affairs file contains a report drafted by an Internal Affairs detective,
including background information regarding the EEO investigation, a summary of
the detective’s interview with Bartolomeo and the detective’s recommendations
as to discipline. The parties’ collective bargaining agreement contains
provisions relating to grievances and discipline and discharge, as follows:
Article 21--grievances and Judicial Review
SECTION 21.7: Rights of the Parties--Any party shall
have access upon request to any written statements or records which shall be
presented as evidence by the other party at any hearing provided by this
Agreement in advance of said hearing. In the event sufficient time does not
exist for any party to review such evidence, the hearing shall be adjourned to
a later date at the request of either party. Article 22--Discipline and
Discharge
SECTION 22.1: Investigations and/or Interrogations-- a)Every effort shall be made to conduct interrogations during an employee’s hours of work or at a time in reasonable proximity to the beginning or end of an employee’s shift. b)An employee who remains on duty for the purpose of attending an interrogation shall be compensated at the rate of time and one half for all hours spent. c)A Business Agent and/or Chief Steward shall be advised that an employee is to be questioned regarding an employment matter. The employee shall be given an opportunity to meet with a Business Agent and/or Chief Steward prior to the interrogation and, if the employee chooses, a Business Agent and/or Chief Steward shall be in attendance during all questioning. It is expressly understood, however, that the Business Agent and/or Chief Steward shall be in attendance as an observer only. The employee may request and shall be granted one five minute recess during the interrogation, and at that time may, if he so requests meet in private with the Business Agent and/or Chief steward. (emphasis in original) d)If a written record of the interrogation is prepared, a copy shall be provided to the individual. e)At the conclusion of the interrogation, the employee shall have the right to make an oral or written presentation for the record. f)This section shall not apply to those investigations which could lead to criminal charges being brought against an employee. n5 Discussion
Upon demand made by an employee
organization, a public employer has a duty to provide information which is
relevant and necessary for the administration of a collective bargaining
agreement, including the investigation of grievances. n6 The obligation of the
employer is “circumscribed by the rules of reasonableness, including the burden
upon the employer to provide the information, the availability of the
information elsewhere, the necessity therefor, the relevancy thereof and,
finally, that the information supplied need not be in the form requested as
long as it satisfies a demonstrated need.” n7
A refusal to provide information is typically the subject of a charge
alleging a refusal to negotiate under § 209-a.1(d) of the Act. n8 Such is the
case here. The charge as pled and litigated alleged only a violation of §
209-a.1(d). n9 The ALJ, therefore, found that the County’s refusal to provide
the Teamsters with the requested information from the EEO files and the
Internal Affairs files constituted a (d) violation. n10 We agree. We do not
find that the language in the collective bargaining agreement requires, as
argued by the County, that we defer the instant charge to the parties’
contractual grievance arbitration procedure. The collective bargaining
agreement gives the parties certain rights to information at the grievance
hearing stage of the procedure and provides for the provision of the written
record of any interrogation conducted by the County. These contractual
provisions do not pertain to the stage of the proceedings covered by the
instant charge, neither do they cover the type of information sought by the
Teamsters. The ALJ correctly declined to defer the charge to arbitration.
In
Schuyler-Chemung-Tioga BOCES n11 we held that “in certain matters where there
is contractual language related to the subject-matter of the charge, if there
exists an independent statutory right with respect to the subject-matter, we
retain jurisdiction even if the respondent’s action is also arguably in
violation of the contract language.” Our analysis of the contractual language
also leads us to reject the County’s argument that the Teamsters waived the
statutory right for the receipt of information necessary to investigate a
grievance. Waiver will be found only where there is an “intentional
relinquishment of a known right with both the knowledge of its existence and an
intention to relinquish it” and where the waiver is “clear, unmistakable and
without ambiguity.” n12 As noted above, the contractual language relates to the
hearing stage in the grievance procedure.
It
cannot be viewed as a clear and knowing waiver of an employee organization’s
right to information necessary and relevant to the investigation of a
grievance, up to, and including, preparation for the disciplinary grievance
arbitration. The County also argues that the Teamsters’ need for the
information requested is outweighed by the County’s interest in protecting the
confidentiality of the complainants against Bartolomeo. The ALJ rejected the
County’s arguments in a detailed analysis of the Civil Rights Law and public
policy issues, as well as relevant case law. While we agree that an employer
must be extremely sensitive to the confidentiality concerns of complainants in
sexual harassment and misconduct investigations, the rights of the accused and
the entity charged with representing the accused unit member must also be
considered. We have held
before that complaints against an employee, upon which an employer bases its
decision to discipline or discharge the employee, even though considered “confidential”, may be the subject of a
request for information from the employee organization and may be required to
be produced. n13 Bartolomeo and his
Teamsters’ representative have already been told the names of the complainants
against Bartolomeo.
Additionally, the only assurance of
confidentiality the County made to the complainants was that their statements
would be shared only with those who had “a legitimate need to know”. Certainly,
the Teamsters, charged with the responsibility of investigating and defending
Bartolomeo’s disciplinary grievance, has a need to review the witness
interviews and the documents upon which the County based its decision to
investigate Bartolomeo and subsequently discharge him.
We find that the Teamsters’ need to
review the EEO and Internal Affairs reports in order to determine whether to go
forward with Bartolomeo’s disciplinary grievance and in order to prepare its
case at arbitration outweighs the concerns raised by the County in this matter.
We find that the County violated § 209-a.1(d) of the Act when it refused to
provide the Teamsters, upon request, with copies of the EEO report and those
parts of the Internal Affairs report which include the recitation of the
background of the complaint against Bartolomeo and the summary of Bartolomeo’s
statements to the investigator in response to the allegations against him.
n14 We, therefore, deny the County’s
exceptions and the cross-exceptions of the Teamsters and affirm the decision of
the ALJ.
IT
IS, THEREFORE, ORDERED that:
1. The County forthwith provide to the
Teamsters’ counsel, for the purpose of investigating and processing Paul
Bartolomeo’s disciplinary grievance, the EEO investigation file and that
portion of the Internal Affairs report regarding Paul Bartolomeo which includes
background and a summary of the interview with Bartolomeo; and
2. The
County post the attached notice at all locations normally used to communicate
with unit employees.
Notes: