Issue: Compliance/documents; Ruling Date November 19, 2001; Ruling #2001-176; Agency: Department of Juvenile Justice; Outcome: In compliance grievant.

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Juvenile Justice/ No. 2001-176

November 16, 2001

The Department of Juvenile Justice (DJJ) has requested a compliance ruling on the grievant’s June 14, 2001 grievance. The agency claims that the grievant has failed to provide a tape recording of a telephone conversation between the grievant and another employee that contains information relevant to the grievance. As relief, the agency has requested that the information be released, along with any other recordings that exist that involve issues surrounding the grievant’s transfer or other issues relating to his grievance.

The grievant was an intake officer senior at the 14^th District Court Service Unit (Henrico). On May 21, 2001, he was transferred against his will to the 15^th District (Hanover). The grievant claims that the transfer was in retaliation for reporting a violation to the State Employee Fraud, Waste, and Abuse Hotline. He further alleges that the transfer was an unfair application of policy and that the employment action was taken for disciplinary reasons without an accompanying written notice. Management denies that the transfer was retaliatory and cites the grievant’s difficulty in maintaining a professional relationship with his co-workers as the reason for the transfer. Specifically, the agency expressed concern about an incident that took place in April 2001, involving the grievant and two of his co-workers.¹ Furthermore, management reported during this Department’s investigation that the grievant was involved in a highly dysfunctional and volatile relationship with one co-worker, and noted that other employees expressed fear of a violent outburst by the grievant. The agency also said that the grievant is a good worker, and they did not want to penalize or hurt him. They were merely concerned with the liability issues surrounding this volatile situation. The agency claims that the transfer was not for disciplinary reasons and states that it has the authority to transfer employees to improve operations and maintain an orderly workplace.

On July 16, 2001, the grievant met with his second-step respondent. During this meeting, the grievant played a portion of a recorded personal conversation with the co-worker with whom he was having a personal relationship. The co-worker was unaware that the telephone conversation was being recorded. A few days later, management requested a copy of this recording, as well as any other recordings that may be relevant to the grievance. On August 23, management sent another letter to the grievant, informing him that failure to produce the tapes within five days would be viewed as noncompliance.

During this Department’s investigation, the grievant stated that the recording of the conversation was made after working hours and away from the job site, and that the recording was used to discredit one of the agency witnesses. His reason for not offering the tape is that it is his personal property that was made with his own equipment. He denies that other tapes exist. The agency contends that the conversation further supports management’s decision to transfer the grievant and that the tape is relevant because it depicts the nature of the inappropriate and disruptive personal relationship between the grievant and his co-worker. The agency also notes that the tape is "disturbing" and contains negative comments about management, as well as details of the personal relationship between the grievant and the co-worker. The agency wants the tape so that the third-step respondent may review the entire grievance record before making a final decision.

The grievance procedure requires both parties to address procedural noncompliance through a specific process. ²That process assures that the parties first communicate with each other about the noncompliance, and resolve any compliance problems voluntarily without this Department’s involvement. Specifically, the party claiming noncompliance must notify the other party in writing and allow five workdays for the opposing party to correct any noncompliance. If the party fails to correct the alleged noncompliance, the other party may request a ruling from this Department. Should this Department find that the party violated a substantial procedural requirement, this Department may resolve the grievance in the other party’s favor unless the party can establish just cause for its noncompliance.³

The grievance statute provides that "[a]bsent just cause, all documents, as defined in the Rules of the Supreme Court of Virginia, relating to actions grieved shall be made available, upon request from a party to the grievance, by the opposing party." ⁴This Department’s interpretation of the mandatory language "shall be made available" is that absent just cause, all relevant grievance-related information must be provided.

The grievance statute further states that "[d]ocuments pertaining to nonparties that are relevant to the grievance shall be produced in such a manner as to preserve the privacy of the individuals not personally involved in the grievance." ⁵ Documents, as defined by the Rules of the Supreme Court of Virginia, include tape recordings.⁶ However, a party is not required to create a document if the document does not exist.⁷ To summarize, absent just cause, a party must provide the other party with all relevant documents upon request, in a manner that preserves the privacy of other individuals.⁸

Both parties to a grievance should have access to documents during the management steps and qualification phase, prior to the hearing phase. Early access to information facilitates discussion and allows an opportunity for the parties to resolve a grievance without the need for a hearing. To assist the resolution process, a party has a duty to conduct a reasonable search to determine whether the requested documentation is available and, absent just cause, to provide the information to the other party in a timely manner.

This Department has not reviewed the requested documents, and at this stage, does not believe a review to be necessary. As described, it appears that at least part of the tape recorded conversation is relevant to the grievance—the grievant himself presented a portion of it at the second step meeting. Therefore, we conclude that the grievant should provide the tape to the agency, unless there is just cause for not producing it.

First, neither party has disputed the legality of how the information on the tape recording was obtained. Therefore, this agency will not consider that issue. Second, the face that a relevant document such as this tape is a grievant’s personal property, recorded off the work site during nonworking hours, does not constitute just cause for not providing such a document to the agency for purposes of the grievance procedure.

However, it is important to note that the grievance procedure protects the privacy interests of third parties. ⁹In this case, the grievant recorded a telephone conversation with a co-worker without telling her. The co-worker, therefore, could reasonably have believed that she was having a private, personal conversation with the grievant. Although at least a portion of the tape is relevant, it is not clear what information the remainder of the tape contains. These portions of the tape may not be relevant to the grievance and may be highly personal. In fact, management conceded that the tape contains details of the personal relationship. ¹⁰Therefore, it is of paramount importance that the co-worker’s confidentiality be protected, and there has been no evidence presented that indicates that she consented to have the recording released to other individuals. Because of the personal nature of this information and the manner in which it was obtained, this Department is reluctant to have this information shared with management at this stage of the grievance procedure.

However, noting that at least some of the information contained on the tape may be relevant, it may become necessary in the future to have an in camera review by an adjudicative body, either by an administrative hearing officer or by the courts.¹¹ This type of review would ensure that only relevant information is shared with the parties and would protect the privacy interests of the co-worker. Thus, should the issue of qualification for hearing come before a circuit court, that court could address the need to produce the tape. Further, should this grievance qualify for a hearing, the issue of the tape could be addressed by the hearing officer. Hearing officers are authorized to issue orders for the production of documents or the appearance of witnesses, generally by conducting a pre-hearing conference.¹² At that time, the hearing officer will have the authority to determine whether any specific document sought by either party should be produced, given the applicable facts and issues that may emerge.

While a hearing officer does not have subpoena power, he or she has the authority to draw factual inferences if a party, without just cause, fails to produce relevant documents or fails to make available relevant witnesses. Thus, although a hearing officer cannot compel a party to produce a document, the party’s failure to do so could result in an adverse inference drawn against it with respect to any factual conflicts resolvable by that evidence. ¹³Thus, in this case, if the grievant is found by the hearing officer to have withheld the tape without just cause, and the tape could resolve a disputed material fact pertaining to the grievance, the hearing officer could resolve that factual dispute in the agency’s favor.¹⁴

This Department cannot find, at this point in the grievance procedure, that the grievant has violated a substantial procedural requirement of the grievance procedure by failing to respond to management’s requests for production of the taped conversation. However, this Department further notes that this issue may be addressed again at a later stage in the grievance procedure, either by an administrative hearing officer or by the courts. This Department’s rulings on matters of compliance are final and nonappealable.¹⁵

Neil A. G. McPhie, Esq.
Director

Leigh A. Brabrand
Employment Relations Consultant