In the Matter of
International Brotherhood of Teamsters,
County of Erie and Erie County Sheriff,
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.
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, [grievant], was discharged at a meeting held on January 4, 2002. By letter issued the same day by Undersheriff Timothy Howard, [grievant] 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, [grievant] 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. [grievant].” 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 [grievant] 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 [grievant]’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 [grievant]’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 [grievant]’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 [grievant]. 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 [grievant] 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 [grievant]. 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 [grievant] and his Teamsters’ representative have already been told the names of the complainants against [grievant].
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 [grievant]’s disciplinary grievance, has a need to review the witness interviews and the documents upon which the County based its decision to investigate [grievant] 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 [grievant]’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 [grievant] and the summary of [grievant]’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 [grievant]’s disciplinary grievance, the EEO investigation file and that portion of the Internal Affairs report regarding [grievant] which includes background and a summary of the interview with [grievant]; and
2. The County post the attached notice at all locations normally used to communicate with unit employees.