ML20043E550
| ML20043E550 | |
| Person / Time | |
|---|---|
| Issue date: | 04/16/1990 |
| From: | Cradock J, Rewell J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Dresslar W NATIONAL TREASURY EMPLOYEES UNION |
| Shared Package | |
| ML20043E518 | List: |
| References | |
| FOIA-89-540 NUDOCS 9006130125 | |
| Download: ML20043E550 (23) | |
Text
{{#Wiki_filter:. _ 7. _ _.. ww m. .... n y I-UNITED STATES NUCLEAR RESULATORY COMMISSION ) anamneten,e,e,suas g#* Walter E. Dres;1ar Assistant Counsel National Treasury Employee's Union Suite 201 Austin, Texas 78731-1617 Re: James Kelly L FMC5 No. 89-23367
Dear Mr. Dresslar:
The agency has received Arbitrator Hays' November 22, 1989 pre-hearing disclosure order, requiring the agency to produce: 1. Any and all materials concerning proven (administrative 1y or otherwise) improper investi ative conduct, while involved in an investigation leading to disci itne being imposed against any NRC employee raised e l against:- (a) Ms. Sharon Connelly, Director of the Office of Inspector and Auditor, (b) Ms. Donna Rowe, Investigatin gent for the Office of Inspector and Auditor and/or (c) the Office o he Inspector and Auditor; 2. Any and all meterich constituting pending and/or final discipline or reassignment of responsibilities in lieu thereof, issued against Ms. Sharon Connelly, imner Director of the Office of Inspector and Auditor. With respect to paragraph 1 listed above, after corducting a thorough search, the agency has determined that there are no materials concerning proven im roper investigative conduct against: (a) Ms. Connelly,. (b) Ms. Rowe, or n (c the OIA. As evidence thereof, please see attachment A, Affidavit of Sharon Connelly. Ms. Connelly has been a subject of Congressional inquiry in matters unrelated to her investigation of the charges against Mr. Kelly. The documents i-L resulting from these inquiries are available as matters of public record and are set forth as follows: (a) Memo to Philip R. Sharp, Chairman of Subcommittee on Energy and Power, from Subconunittee Staff, regarding the Fortuna case, dated May 23, 1989. (b) Senate Report of the Consnittee on Governmental Affairs, S. Rep. No. 101-000,101st Cong.,1st Sess. August,1989. (c) Need For An Inspector General At The Nuclear Regulatory Commission,1987: Hearings on S.908 Before the Senate Committee on Goverreental Affairs, 100th Cong.,1st Sess. (April 9,1987) 9006130125 900416 PDR FOIA G AR DEO9-540 PDR -4 w
.. ~ __ i p II -2'- Our review of the law concerning Congressional reports, recossendations, findings, and conclusions, etc. Indicates that they do not rise to the level ,f proven fact and are entitled to little, if any, weight in a judicial or - administrative proceeding. In Pearce v. E.F. Hutton Group lac., 653 F.Supp 810 (0.0.C 1987), the court discussed what weight, if any, should be given to such reports. Regarding Subcasmittee reports, the concern in Pearce is expressed as follows: The ' staff' of the Subcommittee... is an anonymous group of individuals. They served at the pleasure of the members of the sub-comittee majority. The staff had no independence (because of the neeo for loyalty to the Subcommittee members) or accounta-bility to the public. To suggest that their analysis could be an objective evaluation free from most of the dangers of partisan politics which could undermine the reports trustworthiness is ludicrous. This same problem of bias and lack of objectivity is equally true for the conclusions reached in the Senate Reports. The court in Pearce questioned the trustworthiness of such reports "given the obviously political nature of Congress." Furthermore, "there would appear too great a danger that political considerations might effect the findings of such a report." See also, Saker
- v. Firestone Tire and Rubber Co., 793 F.2d 1196 (11th Cir. 1987); Bright
- v. Firestone Tire and Rubber Co., 756 F.2d 19 (6th Cir. 1984).
Therefore, while the agency has decided in good faith to provide the citations to these materials which are unrelateo to the Kelly investigation, it is the agency's considered position that these Congressional materials do not ccnstitute " proven (administratively or otherwise) improper investigaiive conduct." With regard to the-second paragraph of the order as set torth above, af ter a thorough search, the agency has determined that there has been no proposed.cr final discipline issued to Ms. Connelly on any matter. Nor has she ever been reassigned in lieu thereof. See Connelly Affidavit and Attachment 8 Affidavit of Paul E. Bird MRC Director of Personnel. We therefore must advise you that the agency has found no materials falling) within the parameters of Arbitrator Hays' Order ( page 8 paragraphs 1 and 2 of November 22, 1989. We will, of course, make Ms. Connelly and Ms. Rowe available for testimony if you so desire,
- incerely, h
v 4 ames E. Cradock Senior Attorney Jph p . Bradley 1 Attachments: As stated i W
~ ,,7 . m; 3,. ..,. w 9 I ..i,=.. ) ). BEFOAC 00N B. HAYS AR81TRATOR in The Matter of Arcitration Between e NATIureAu TAEASukf CMPLOYCCS UNION, Adverse Action CHAPTCR 206, Gtj evant: James Kelly and UNITED STATES NUCLEAR REGULATORY COMMISS10ti, REGI0t1 IV MOTION FOR A PRI-HEARit1G OISCLOSURE ORDER The National Treasury Employees Union, Chapter 208 (hereinaf ter Union) hereoy moves that the Arbitrator, pursuant to Article $1, section 51.5.3 1. and 5 U.S.C. 7114(b)(4), issue an order requiring the United States fluelear ~ Regulatory Comission (nereinaf ter Agency) to make pre-hearing disclosure of documents relevant and necessary to the Union in preparing ano presenting a proper defense on benalf of Grievant Kelly in the matter of the adverse action imposed by the Agency. The Union requests that the Agency be ordered to produce the documents listed herein below at Union's office at 3636 Executive Center Drive, Suite 201, Austin, Texas, 78731 witnin 10 days from the date of the Arbitrator's order: 1. Any and all materials concerning allegations of, or proven (administratively or otnerwise) improper or unsatisfactory c m
m.m.y y,,r. wm,,.~. .c. .,,,m. v. _ u,.. ..I.. I \\s
- )
investigative conduct, while involved in an investigation against any NRC employee, raised against a) Ms. Shaton Connelly, Director of the Office of Inspector and Auditor, b) Ms. Donna Rowe, Investigating Agent for the Office of Inspector and Auditor, and/or c) the Office of Inspector and Auditor; and 2. Any and all materials constituting proposed and/or final discipline or reassignment issued to, or concerning, Ms. Sharon Conrally, former Director of tne Office of Inspector and Auditor. ~ The Union suomits that it is within the Arcitrator's authority issue a-disclosure order in this adverse action proceeding. Further, the Union submits that requests neber 1 and 2 are relevant and necessary to impeaching the credibility of key docments and witnesses relied upon by the Agency in formulating and sustaining the discipline imposed upon the grievant. Accordingly, the Union respectfully requests tnat the ArDitrator' issue a disclosure crder to the Agency requiring it to produce the aforementioneo documents. Respectfully suomitted, M Dennis Schneider fational nsel -{ Walter E. Dresslar Assistant Counsel National Treasury Encloyees Union 3636 Executive Center Drive, Suite 201 Date: October 2, 1989 ' Austin, Texas 78731 2 l b n
,y. ,,_,,r e;, ,...,c.. ~ 4 .-\\ f ) y BEFORE AASITRATOR 00N 8. MAYS in The Matter Of Aroitration Between e NATIONAL TREASURY EMPLOYEES UNION, Adverse Action CHAPTER 206, Grievant:.3ames Kelly and e UNITED STATES HUCLEAR REGULATORY COMMISSION, REGION IV EMORAtOUM IN SUPPORT OF TtE UN10:4'S MOTION FOR A PRE-HEARING OISCLOSJRE ORDER Dennis Schneider National Counsel Walter E. Dresslar Assistant Counsel National Treasury Employees Union EM Executive Center Drive, Suite 201 Austin, Texas 78731 (512) 346-6520 t.__ g // l W
o - ~ n m w m..a [. 7 *,' 1NTR000CTION AND STATEMENT OF TE CASE t e The United States Nuclear Regulatory Commission (hereinaf ter Agency or. NRC) and the National Treasury Employees Union (hereinaf ter Union or NTEU) are parties to a collective bargaining agreement (hereinaf ter Agreement) which is currently in effect, and which was in effect at all times relevant to this motion and the underlying grievance and areitration. Attachment A. By letter dated April 7,1989, the Agency proposed to suspend Mr. James Kelly from his position as a Physical Security Specialist for thirty days. Attactment B. In addition to the letter proposing the thirty day suspension, the Agency also provided Mr. Kelly a copy of a Report of Investigation -(hereinafter ROI). Attacment C (cover letter). By the Agency's admission, the ROI constituted the material relied upon by the NRC in proposing the adverse action against Grievant Kelly and served as a basis for the charges leveled against him. The ROI is the written report of investigation prepared by the.NRC investigators responsiDie for.the investigation leading to the adverse action, Ms. Donna Rowe, NRC Criminal Investigator, Office of Inspector and Auditor, Mark Resner, Assistant Director for Investigations, Office of Inspector and Auoltor, and Ms. Sharon Connelly, Director of the Office of Inspector and Auditor (hereinafter 01A). Indeed, it was Ms. Donna Rowe and Ms. Sharon Connelly who conducted most of the witness and suspect interviews used in support of the ROI and the subsequent adverse action against Grievant Kelly. Both conducted a personal interview of Grievant Kelly. Ms. Donna Rowe prepared and wrote the ROI used against Grievant Kelly, at the direction of Ms. Sharon Connelly. Mr. Kelly designateo the NTCU as his representative and decided to present an oral and written reply to the enarges and specifications preferred 1 l
A + against nim in the letter proposing the adverse action. The oral reply was-later scheduled for May 11, 1989 in Arlington, Texas, in preparing a defense to the proposed adverse action and by letter dated April 14, 1989, the NTr1. formally requested information from the Agency under 5 U.S.C. 7114(b)(4). Attachment D. The Union requested, inter alia, that the Agency produce tne following documents: 7 Any and all materials concerning allegations of, or proven (aoministratively or otherwise) improper or unsatisfactory investigative conduct, while involved in an investigation against any NRC employee raised against: (a) Ms. Snaron Connelly, (c) Ms. Donna Rowe, and/or (c) the Office of Inspector and Auditor... 8. Any and all materials constituting proposed and/or final ciscipline or reassigment issued to, or concerning, Ms. Sharon Connelly. In its letter requesting the information, the Union expressly notified the Agency of the relevance of the reauested information anc the Union's need for the information. See Attachment D. By letter dated May 1,-1989 (received by tne Union on May 2,1989), the Agency responded to tne Union's request for information. Attachment E. In response to requests numoer 7 and 8, the Agency asserted tnat the Union had not demonstrated the relevancy or necessity of the requests. The grievant's reply to the charges was held as scheduled on May 11, 1989. Througn his designated representative, Mr. Kelly-presented both an oral and written reply. By letter dated June 26, 1989, the Agency notified Mr. Kelly of its final decision to impose an adverse action, a fif teen day suspension. Attacrvnent F. By letter dated July 6, 1989, the Union invoxed aroitration in the matter of the adverse action imposed against Mr. Kelly by tne Agency. Attacnment G. 2 i a
,.g. ~ _ _ _ _ ~,.., mp. 7 1 ? After further reviewing the Agency's' final decision to impose an adverse action, invoking arDitration, and in preparing a defense to the adverse action and attempting to cure any asserted deficiencies in the initial request for information, the Union submitted a letter dated July 25, 1989 to the Agency further cetailing the relevancy and necessity of the requested materiais. Attachment H. The Union also restated its request for the docunents, giving the Agency ten days to respond to the letter. The Union received the Agency's response on August 14, 1989. Attacnment 1. Again, the Agency denied each and every request. Tne parties to this arbitration selected the Arbitrator during the last week of August 1989 and the ArDitrator was notified of his selection by letter dated August 31, 1989 A hearing in the matter has been scheduled for December 12-15, 1989 in Arlington, Texas. ARGUtENT This motion presents two issues for the Arcitrator. Initially, it must be determined wnether or not the Arbitrator possesses the authority to issue the requested order. If that is answered affimatively, tnen the' issue l becomes wnat order, if any, should be issued. l I. The Arcitrator Possesses The Authority To Issue E A Pre-Hearing Disclosure Order To The Agency I In any aroitration hearing, it is the aroitrator that bears the ultimate responsiellity of insuring that all parties have been afforded a fair and complete opportunity to present their position on all relevant issues.- In this manner, the arbitrator is best aole to base nis or her decision on the merits of the case presented. The United States Supreme Court has fir:nly 3 i m f i- ------ e
w \\ recognized that, absent contractW1 provisions to the contrary, it is the arbitrator that controls the proceoutes in the case before him or her. jee j I g, John wiley & Sons. Inc. v. Livinaston, 376 U.S. 543, 537 (1964). When either party to an arcitration refuses or fails to voluntarily participate in the exchange of information inherent and necessary to pr cer resolution of matters unoer a negotiated griemce/arcitration procers] 9 aroitrators have not hesitated to issue disclosure orers requirirq the e proouction of germane materials. The order may te vosn the motion of the arbitrator or a party. See, Elkouri and Elkouri, How Aroitration works, 4tn ed. at 309, citing Chesapeake & Potomac Tel. Co. of Mst virainia, 21 LA 367 (1953) and Aroitrator Barnhart in 64 LA 869, in Sportswear Garment Workers Local 246 v. Evans Mft Co., 318 F.2d 528 (3d Cir.1963), the court upheld and enforceo an arbitrator's order to the employer to afford the union access to records maintained by the engloyer. In Cnesaoeake & Potomac Tel. Co. v. NLRB, 687 F.2d 633 (2d Cir.1982), the court cetermined that the employer's refusal to aDiot by the attitrator's pre-hearing disclorure order constituted an unfair 2Aoor prMtice. In the instant situation, the collective carga1Nng agreement between the parties provides the Arbitrator with socitional authority to issue the requested order. Art.icle 51, section 51.5.3 states that the Aroitrator has the autbrity to " rule @on offers of proof and receive relevant evidence."M The collective agreement, thereby, gives the arbitrator the -A/ One thould note that the contract also states that the arbitrator coes not have the authority to require the proouction of oocunents not offereo in evidence by eitner party. Article 51, section 51.5.4 However, tnis section is clearly inapolicaole to the current question. The Union intends to offer the oocuments it seeks into evioence at the hearing. 4
1 { l authority to insure that all Mlevant materials and evidence offered by a ) ,s J party are included in the tocord. In federal sector labor relations, the Feoeral Labor Relations Authority (FLRA) is the forum responsible for reviewing labor arDitration awards and determining tneir validity. 5 U.S.C. 7105(a)(2)(H) ano 5 d.S.C. 7122(a). Tne FLRA has held that an agency that is party to an attitration hearing is subject to an arbitrator's order to provide doceentation to the Union which a the arbitrator had found were Televant and necessary to resolving the dispute. Department of Health and Human services. Social Security Acninistration and American Federation of Goverryment Encloyees, AFL-CIO, 27 FLRA 706, 709-710 (1967). The FLRA cited John wiley & Sons, 376 F. 2d at 557 for the "well estaolisheo" proposition tnat once the parties to a collective bargaining agreement submit a dispute to arDitration, then the procedural questions wnich arise and bear on its resolution should be left to the atoltrator. lne FLRA also noted that an arDitrator has tne authority to rule on procedural matters such as requests for discovery of information. Deoartment of Health tend Hean Services, 27 FLRA at 710, citir g Great Scott Suoermarkets. Inc. v. Local Union No. 337. Interrational Brotherhood of Teamsters, 363 F. Supp.1351 (1972). The FLRA then specifically found that it is properly the function of an arbitrator to determine the relevance and material.ity of documents and other evidence requested by a party in a proceeding and whether production should be ordered. Id. at 710-711. Based upon these authorities alone, it becomes eminently clear that the Aroitrator possesses the authority to grant the Union's request and to issue a disclosure order. The instant case involves an adverse action since the s
= ., ~. l .1 investigative conduct, while involved in an investigation against any MC employee raised againstt (a) Ms. Sharon Connelly. (b) Ms. Donna Rowe, and/or j (c) the Office of inspector and Auditor, and j Any and all materials constituting proposed and/or final discipline or reassignment issued to, or concerning, Ms. Sharon Conrolly is relevant and necessary to properl/ defend Mr. Kelly in the adverse action i proceeding, while it may be true that the general principle is t5at arbitration l hearings need not be conducted in strict conformity with the established rules of evidence, it is no less true that the credibility of witnesses and other demonstrative evidence may always be placed in issue. See, Fed. R. Evid. 607 and 608. In adverse action proceedings, the credibility of witnesses offaring contradictory statements nust be addressed by the presiding official. See, Hillen v. Department of the Army and Of fi:e of Special Counsel, 87 FMSR $678 I (MSPB 1987). Tne Union has always maintained that it intends to attack the objectivity and credibility of the R01, and the objectivity and credibility of the investigating agents upon wnose creciD111ty the ROI is based. In its i..itial request for this information, tne Union explained the information's relevance and necessity. The Union elaborated further in this explanation in its letter dated Aly 25, 1989 One must remember that the ROI is the sole document upon which the agency relied in deciding to impose an adverse action against Mr. Kelly. Ms. Rowe and Ms. Connelly were responsible for every document inserted into the ROI. Ms. Rowe and Ms. Connelly were responsible for each conclusion concerning Mr. Kelly's conduct published in the ROI, the same 7 l l l l 1.
l s I conclusions relied t.pon by the Agency in reaching its decision to ipse an adverse action. Ms. Rowe and/or Ms. Connelly were responsible for each interview conducted during the course of the Agency's investigation into the incidents leading to the advetse action taken against Mr. Kelly. Clrt.ly wn, the character for truthfulness or untruthfullness of Ms. Rowe a st Ms. .snnelly are' crucial to the Agency's and the Union's case. The informat. d requested by the Union, and subject to the Union's motion for a disclosure order would demonstrate whether or not the each is known for truthfulness or yntruthfullness. The requested documents would enable the Union 60 determine whether the Agency or other goverrynent agencies have made determinations as to Ms. Connely's and Ms. Rowe's enaracter for being honest or dishonest. Bias and notive are also factors that either enhance or detract from a witnesses credibility. The Union asserts that Criminal Investigator Rowe and Director Connelly eacn possessed a bias and/or a motive for conducting the investigation in tne manner in wnien it was conducted. In particular, the Union asserts that the conclusions published in the final ROI that was the sole basis for the discipline against Mr. Kelly were not the legitimate conclusions of the investigator but were, instead, the insistent demands of agency officials intent on covering up or masking their own mistakes. The requested doctments would reveal a portion of those past mistakes. Finally, the Union intends to assert as an affirmative defense that the adverse action taken against him is the direct result of his having engaged in protected conduct, for his having engaged in whistleolowing. The bias and/or motive of the individual Agency officials responsible for tne resultant 8 9 e
~ ^ s adverse action are key issues in any case involving elet.. *,s of reprisal for protected conduct. i in the instant case, the Union will allege that the investigation into l Mr. Kelly's conduct and the resultant adverse action were taken and ordered in retallation for Mr. Kelly having testified befer: the United States Cergrass. Ir, the estly simmer 1987, Mr. Kelly testified before the House Corsnittee on Interior and insular Affairs about drug and alcohol abuse at nuclear power plants under the direct regulatory control of tne NRC and NRC Region IV. The Union will provide testimony arve other evidence that Mr. Kelly's testimony was extremely critical of NRC Regian IV management and that his testimony was well publicized. Clearly, the bit.s of all Agency witnesses who knew of Mr. Kelly's testimony and wno, themselves, have been the target of Congressional investigations are relevant issues in the instant grievance arbitration. The requested materials may reveal that Ms. Connelly has been the target of Congressional inquiries into her own alleged misconduct, congressional i inquiries that have been extremely critical. At the hearing, the Union intends to question Ms. Connelly about that congressional inquiry and about any resultant bias. The Union will also allege that the bias and/or motive of Ms. Connelly was transferreo to Ms. Rowe as her subordinate. Further, for many of the documents requested, neither the Union nor Mr. Kelly has access. They remain in the sole possession of the Agency. CONCLUSION In adverse action proceedings, the burden of proof and persuasion rests with management. Westions about witness truthfulness, bias, and/or motive 9 y e
h o are all relevant issues in any formal proceeding called to determine the propriety of management's decision to impose an adverse action against one of its employees, especially in those cases where retaliation for enistleolowing is raised as a defense by the grievant. The information recriested by the Union is relevant to estselithing the character for truthfulness for key agency witnesses against Mr. Kelly. Further, the requested docunents will enable the Union to investigate the bias and motive of key figures and documents relied upon by management in reecning its decibiun to impose an adverse action against Mr. Kelly. Accordingly, the Union respectfully requests that the AIDitrator issue a disclosure order to the Agency reQJiring it to produce the aforementioned docanents to the Union, within ten days of his order. Respectfully sutnitted, ) '.w pr Dennis Senneider National Sounsel ff ni, g ^ Walter E'. resslar Assistant Counsel cate: October 2, 1989 (512) 346-6520 10
L, %- wao an. l i &BRLTR&T9Bt DON 3. BATS - Selected by the parties through procedures of Federal Mediation and Conciliation Service MPRMudeCR8 For the Agency - JAMES R. CRADOCK, RSQ. Senior Attorney U.S. Nuclear Regulatory Comunission Office of the General Counsel Washington, D.C. 20055 For the Union - WALTER E. DRESSLAR, ESQ. Assistant Counsel The National Treasury Employees Union 3636 Executive Center Drive, Suite 201 Austin, TE 78731-1617 PRB-HEARING DISCLOSURE ORDBR on the 2nd day of October, 1989, the National Treasury Employees Union, (hereinaf ter organization) moved the Arbitrator, pursuant to Article 51, section 51.5.3 1. and 5 U.S.C. 7114(b)(4), to issue an order requiring the United States Nuclear Regulatory Commission (hereinafter agency) to make disclosure of certain documents considered relevant and necet.sary in the preparation and presentation of a full and couplete defense on behalf of Grievant James Kelly. On the 23rd day of October the agency formalised its opposition to the organisation's motion and moved us to deny the request and to enter a protective order which would effectively preclude the organisation from summoning two agency investigators as witnesses during the trial on the merits. On the 8th day of November, 1989, a hearing was held in F5 --______..-.,--____.__.___,______________,_______._.m__
4 er Sherman, Teaas, before the undersigned arbitrator to consider the motion (s) and supporting argesents. During such hearing the organisation moved us to enter an order requiring the agency to produce the following documents: 1. Any and all materiale concerning allegations of, or W g r or proven (administrative 1y or otherwise) hile involved in unsatisfactory investigative conduct, w an investigation against any NRC employee, raised against a) Sharon Connelly, Director of the Office of Inspector and Auditor, b) Ms. Donna Rowe, Investigating Agent for the Office of Inspector and Auditor, and/or c) the Office of Inspector and Auditor; and 2. Any and all materials constituting proposed and/or final discipline or reassignment issued to, or concerning, Ms. Sharon Connelly, former Director of the Office of Inspector and Auditor. In addition we were urged to enter an order compelling the
- appearance at trial
- of Departmental Investigators sharon Connelly and Donna Rowe.
BACRGROUND The United States Nuclear Regulatory Commission (hereinaf ter agency) and the National Treasury Employees Union {hereinaf ter organisation) are parties to a collective bargaining agreement which is currently in effect, and which was in effect at all times relevant to this motion, the underlying grievance and appeal to arbitration. By letter dated April 7, 1989, the agency proposed to suspend Mr. James Kelly from his position as a Physical Security Specialist for thirty days. In addition to the letter proposing the thirty day suspension, the agency provided Mr. Kelly a copy of a Report of Investigation, which was relied on by the agency in making the decision to Lapose a disciplinary sanction against 2-d
I Grievant Eelly. The internal investigation was prepared by Ms. Donna Rowe, NRC Criminal Investigator, Office of the Inspector and Auditor, Mark Resner, Assistant Director for Investigations, Of fice of Inspector and Auditos, and Ms. Sharon Connelly, Director of the of fice of I*..spector and Auditor. These agency investigators interviewed essentially all of the witnesses whose l reported ' incriminating statements provided the evidentiary I support for the disciplinary action instituted against Mr. Kelly. Kelly. Thereafter, Mr. Kelly designated the organisation as his representative and filed both an oral and written reply to the charges and specifications preferred against him in the letter proposing the adverse action. In preparing a defense to the proposed adverse action, on April 14, 1989, the organisation formally requested certain departmental information, pursuant to the provisions of 5 U.S.C. 7114(b)(4). Such request included, inter alia, that the agency produce the following documents: 7. Any and all materials concerning allegations of, or proven (administrative 1y or otherwise) hile involved in an improper or unsatisfactory investigative conduct, w investigation against any NRC employee raised against (a) Ms. Sharon Connelly, (b) Ms. Donna Rowe, and/or (c) the Office of the Inspector and Auditor... 8. Any and all materiale constituting proposed and/or final discipline or reassignment issued to, or concerning, Ms. Sharon Connelly. By letter dated Key 1, 1989, the agency responded, again denying the organisation's requests numbers 7 and 8, on the basis that the organisation had not demonstrated the relevancy or necessity of the requests.. ,_.._,,,.,,,,._.._m___.,__.m.,, _ ..._,-,_..._,,,.,._....,.,,,_._..,y_
l L ,e T The grievant's reply to the charges was held on May 11 1989, during which the agency presented both an oral and written reply on behalf of Mr. Kelly. By letter dated June 26, 1989, the agency notified Mr. Kelly of its final decision to impose a j fifteen day disciplinary suspension. In response thereto the r organisation timely (July 8, 1989) invoked arbitration. Thereafter, by letter dated July 25, 1989, the organisation restated its request for documents and further advit ed the agency of the relevancy and necessity of the requested materials. By l letter dated August 14, the agency again denied each and every t request. ORDER 1 { A. JURISDICTION / BURDEN OF PERSUASION In our judgment we are clothed with jurisdictional authority, under the provisions of 5 U.S.C. 7114(b)(1)(3), to compel either party (agency / organization) to produce documents (witness) which contain information which is reasonably calculated to lead to the discovery of admissible evidence. To limit the pre-hearing discovery process to only the precise issues (i.e. just cause) raised by the agency's disciplinary decision would not only be contrary to the implicit mandates of the above cited Code provisions (supra), but would result in denying the moving party (organisation) reasonable access to information that would be useful, if not admissible, at the hearing on the merits. The agency's argument for protection against the organisation's broadly drawn request appears to be rooted in the ' 4 4 ~ .._.,..,_y-. .,_~. -........ -,,,. _ -.
s
- e. '
j l premise that it (agency) possesses some threshold inquisitional authority, under which it is authorised to compel the j organisation to reveal the precise purposes (affirmative defenses, etc.) for which such information is being sought. In weighing the merits of the agency's argument we are mindful that the organisation is not entitled to a rebuttable presumption of relevance, based solely on the fact that the information being sought was produced by internal agency investigations in connection with a disciplinary sanction. l l Pursuant to the provision of the collective bargaining I agreement and the U.S. Code, and giving arbitral recognition to the well defined purposes of pre-trial discovery, we are l persuaded that the organisation must put the agency on reasonable l l notice of the purposes (relevance) for which such information is being sought. However, in our judgment such notice obligation does not require the specificity here insisted upon by the agency. The purposes for which the documents and/or the appearances of the witness were being sought were made aufficiently clear in the organisation's documented request, admissions and arguments made during the hearing on this motion. Such legitimate purposes include, but are not limited to, the following, to wit 1. Internal Investigations (Investigators) - competency, bias, accuracy, and objectivity in precisely reporting the information relied on by the Agency, etc. 2. Agency Officials - bias, lack of adequate knowledge of facts, unjustified reliance on possibly distorted reports, etc. 3. Affirmat'ive Defenses - retaliation, whistle blowing, disparate treatment, etc.. v e~, ' +e we ~
1 i c Bach of these subjects relate to matters which appear I factually relevant to the issues (defenses) which are reasonably f calculated to be material considerations in our review of the propriety of the agency's disciplinary decision. 3. RELEVANCY The test of relevant discoverable information in this forum, as established by the applicable statutory and contract v provisions, does not turn on the admissibility of such evidence; it is limited only by materiality and the affirmative showing that the information being sought is reasonably calculated to ( lead to the discovery of admissible evidence. Furthermore, the validity of a particular defense that is, or is expected to be, raised by the organisation, need not be judged upon its merits as i s a qualifying factor in our deliberation as to what matters are L relevant and therefore discoverable; pre-hearing discovery should i never be circumscribed because the validity of any particular defense is challenged by the agency as insuf ficient, unless the agency can persuasively show such defense to be improper (inapplicable), as a matter of law. C. WITNESSBS The agency argues that-the necessity to produce the i departmental investigators (Ms. Connelly/Rowe) is mooted by the agency's stipulation, during the hearing on this motion. that such non-agency individuals, interview by such investigators, would be summoned as witnesses and personally attest to their conversations (relationship) with Grievant Kelly. Based on this commitment, the agency argues that it should not also be ordered _ ~
+ j to produce the two investigators; orge, any regnested departmental evidence, which might otherwise be stilised to support impeachment of the investigsters, or their reports, should be summarily considered irrelevant and immaterial to our j review of the merits. such agemey arguments ignore the affirmative, reliance placed on such reports by the agency of ficers who made b' th the initial o recommendation and the final decision to impose a disciplinary sanction. These internal inspectors appear from the record to have been more than perfunctory conduits of unambiguous written statements by such other accusing witnesses who vill be produced during the hearing. Based on such conclusion we find that the I organisation is entitled to discover and produce evidence (testimony) that would persuasively show that they I (investigators) may have exercised subjective judgment in reporting the 'f acts" they unearthed, or otherwise asserted some influence in r: aging and/or conducting their investigatory interviews. 3f such conclusions are persuasively established at I trial, any bias on inaccuracy in the gathering and reporting of such information may have had a material and harmful ef fect of the appellant employee. Although we acknowledge that evidence, which indicates that a person havirg discoverable knowledge may not be worthy of belief, is almost always relevant to the subject matter, we are cautious to distinguish between naked allegations and proven facts. Here the organization seeks, 'any and all material concerning ausaation_s of, or proven (administrative or. er,---m--, ++ r----. ,-w, ---~c ,--------,-w a
i I I otherwise) Japroper or unsatisfactory investigative conduct whilt-involved in an investigation against g g NRC employee...' (underscoring added). We consider the scope of the organisation's discovery request to be too broad and not persuasively shown to be necessarily relevant, based on the f evidence a.nd arguments offered in support thereof. ORDER I. Based on the rational set forth hereinabove we would deny the agency's request for a protective order against its having to produce the two designated witnesses at the merits review of this dispute; accordingly the following named agency employees shall be made available to testify unless otherwise ordered -(A) Ms. Sharon Connelly, Director of the office of Inspector and Auditor (B) Ms. Donna Rowe, Investigating Agent for the Office of i Inspector and Auditor I II. The agency is hereby ordered to produce the documents listed hereinbelow at the organization's offices at 3636 Rzecutive Center Drive, suite 201, Austin: vavat,,W731, within ten (10) days from the date of this Order: 1. Any and all materials concerning proven (adminis-tratively or otherwise) improper in'restigative conduct, while involved in an investigation leading to discipline being imposed against any MRC employee, raised against a) Ms. Sharon Connelly, Director of the Office of Inspector and Auditor, b) Ms. Donna Rowe, Investigating Agent for the Office of Inspector and Auditor, and/or c) the Of fice of Inspector and Auditor; 2. Any and all materials constituting pending and/or final discipline, or reassignment of responsibilities in lieu thereof, issued against Ms. Sharon Connelly, former Director of the Office of Inspector and Auditor. .g. m- - -.. - -, = v,..,-.-- .,,n,,. ---.. -w- ,-,.,e _n
?! c ...ii a i s November 22, 1909. i i i Don i. MYS, Arbirr y I l I l l I ; i t l ..,_----c.._,._-. a}}