33:0242(27)CA - - VA, VA Medical Center, San Francisco, CA and Karen O'Rourke - - 1988 FLRAdec CA - - v33 p242



[ v33 p242 ]
33:0242(27)CA
The decision of the Authority follows:


33 FLRA No. 27

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS ADMINISTRATION

VA MEDICAL CENTER

SAN FRANCISCO, CALIFORNIA

(Respondent)

and

KAREN O'ROURKE, An Individual

(Charging Party)

9-CA-80315

ORDER

October 24, 1988

Before Chairman Calhoun and Member McKee.

This matter is before the Authority pursuant to sections 2423.22(b)(2) and 2429.11 of the Authority's Rules and Regulations. The Respondent has filed a "Request for Special Permission to Appeal Regional Director's Order Denying Motion for Production of Tape for Inspection and Copying." The General Counsel filed an opposition to the Respondent's request.

The Respondent requests that the Authority reverse or modify the Regional Director's order denying the Respondent's motion for production of a tape recording for inspection and copying prior to a prehearing conference and hearing scheduled for November 17, 1988. The Respondent requests that the Authority either require the disclosure of the tape before the prehearing conference or continue the hearing for a reasonable time after the prehearing conference to allow the Respondent an opportunity to inspect and copy the tape which will be disclosed at the prehearing conference.

The Respondent asserts that the "tape recording is essential in order for the [R]espondent to adequately prepare for the hearing" and that "judicial fairness and administrative due process mandate that the [R]espondent be given an equal procedural right [as the General Counsel] to prepare for this hearing." The Respondent further contends that the Authority "should consider this interlocutory appeal because . . . extraordinary circumstances" exist. For the reasons set forth below, the Respondent's request is denied.

Section 2423.22(b)(2) of our Regulations provides:

Except by special permission of the Authority, and in view of § 2429.11 of this subchapter, rulings by the Regional Director shall not be appealed prior to the transmittal of the case to the Authority, but shall be considered by the Authority when the case is transmitted to it for decision.

Section 2429.11 states that the Authority and the General Counsel "ordinarily will not consider interlocutory appeals." In Department of Transportation and Federal Aviation Administration, 32 FLRA 158 (1988), the Authority considered a request by the respondents in that case for special permission to file an interlocutory appeal of an order of an Administrative Law Judge. We denied the request because the respondents failed to demonstrate the existence of extraordinary circumstances which would warrant the granting of their request.

Similarly, the arguments advanced by the Respondent in this matter in support of its request for special permission to appeal do not demonstrate the existence of extraordinary circumstances which would warrant the granting of the request. As noted by the Acting Regional Director, the Authority's Rules and Regulations do not mandate exchange of proposed witness lists and copies of documents intended to be offered into evidence at the hearing until the prehearing conference. 5 C.F.R. § 2423.14(a). Furthermore, the Respondent's arguments in support of its request for special permission to appeal are similar to arguments rejected by the Authority in the publication of its final rules and regulations on December 22, 1986. 51 Fed. Reg. 45751 (1986). The Authority decided not to adopt the proposed regulation, which would have provided for disclosure of proposed exhibits 10 days in advance and adopted instead a modified version of the regulation which provides, as noted above, for the exchange of proposed exhibits at a prehearing conference at the site of the unfair labor practice hearing. The Authority stated that "[t]he modified regulation would still continue to afford the parties an opportunity to review all documentation to be submitted as exhibits prior to the commencement of the hearing[