47:0535(48)CA - - FDA, Newark District Office, West Orange, NJ and AFGE Council 242 - - 1993 FLRAdec CA - - v47 p535

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[ v47 p535 ]
47:0535(48)CA
The decision of the Authority follows:


47 FLRA No. 48

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FOOD AND DRUG ADMINISTRATION

NEWARK DISTRICT OFFICE

WEST ORANGE, NEW JERSEY

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, COUNCIL 242

(Charging Party/Union)

2-CA-10068

2-CA-10083

12-CA-10204

12-CA-10271

_____

DECISION AND ORDER

April 30, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled consolidated proceeding, finding that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by: (1) failing to respond to a Union request for information and failing to furnish the Union with information requested under section 7114(b)(4) of the Statute; and (2) improperly excluding an employee from the bargaining unit represented by the Union, refusing to recognize the Union as the employee's representative, and denying the employee's request for Union representation at an examination in connection with an investigation. The Judge also found that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to recognize an attorney as the Union's representative for certain purposes. However, the Judge concluded that the Respondent did not violate section 7116(a)(1) and (2) of the Statute by instructing a Union steward to cease representing an employee who was not in the bargaining unit.

The Respondent filed exceptions to the Judge's decision.(1) The General Counsel filed an opposition to the Respondent's exceptions and cross-exceptions.(2)

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings that the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Food and Drug Administration, Newark District Office, West Orange, New Jersey, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the American Federation of Government Employees, AFL-CIO, Council 242, the exclusive representative of certain of its employees, with information requested by the Union on May 25, 1990, or to state that the requested information does not exist.

(b) Excluding Linda Washington from the bargaining unit represented by the Union.

(c) Failing and refusing to deal with and recognize the Union as the collective bargaining representative of Linda Washington.

(d) Failing and refusing to permit the Union to be represented at an examination of Linda Washington or any bargaining unit employee, conducted by a representative of the agency in connection with an investigation, if the employee reasonably believes that the examination may result in disciplinary action and requests representation.

(e) Failing and refusing to permit the Union to designate William Kastner, or any other representative of its choosing, to be its representative in processing grievances beyond the first step of the grievance procedure.

(f) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request, furnish the Amercian Federation of Government Employees, AFL-CIO, Council 242, the information it requested on May 25, 1990.

(b) Include Linda Washington in the bargaining unit and permit her to be represented by the Union.

(c) Upon request of the Union and Linda Washington, repeat the examination of Ms. Washington that occurred on August 14, 1990. In repeating the examination, afford Ms. Washington her right to Union representation. After repeating the examination, reconsider the disciplinary action taken against Ms. Washington. On reconsideration of the disciplinary action, as appropriate, make Ms. Washington whole for any losses she suffered to the extent consistent with the decision and/or afford her whatever grievance or appeal rights are due under any relevant collective bargaining agreement, law, or regulation.

(d) Upon request of the Union and Christopher Walker, repeat the grievance procedure in the grievance of November 26, 1990, from the second step of the procedure, affording the Union the right to be represented by William Kastner or any other representative it designates.

(e) Post at all its facilities where bargaining unit employees represented by the Union are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the District Director of the Food and Drug Administration, Newark District Office, West Orange, New Jersey, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(f) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

All other allegations in the consolidated complaint are hereby dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, AFL-CIO, Council 242, the exclusive representative of certain of our employees, information requested by the Union on May 25, 1990, or state that the requested information does not exist.

WE WILL NOT exclude or attempt to exclude Linda Washington from the bargaining unit represented by the Union.

WE WILL NOT fail and refuse to deal with and recognize the Union as the bargaining representative of Linda Washington.

WE WILL NOT fail and refuse to permit the Union to be represented at an examination of Linda Washington or any bargaining unit employee, conducted by a representative of the agency in connection with an investigation, if the employee reasonably believes that the examination may result in disciplinary action against the employee, and if representation is requested by the employee.

WE WILL NOT fail and refuse to permit the Union to designate William Kastner, or any other representative of its choosing, to be its representative in processing Christopher Walker's grievance, or any other grievance beyond the first step of the grievance procedure.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request, furnish to the Union the information it requested on May 25, 1990.

WE WILL include Linda Washington in the bargaining unit and permit her to be represented by the Union.

WE WILL, upon request of the Union and Linda Washington, repeat the examination of Ms. Washington that occurred on August 14, 1990. In repeating the examination, afford Ms. Washington her right to Union representation. After repeating the examination, we will reconsider the disciplinary action taken against Ms. Washington. On reconsideration of the disciplinary action, as appropriate, we will make Ms. Washington whole for any losses she suffered to the extent consistent with the decision and/or afford her whatever grievance or appeal rights are due under any relevant collective bargaining agreement, law or regulation.

WE WILL, upon request of the Union and Christopher Walker, repeat the grievance procedure in the grievance of November 26, 1990, from the second step of the procedure, affording the Union the right to be represented by William Kastner or any other representative it designates.

______________________________
(Agency)

Date:__________________ By:______________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Boston Regional Office, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Among other things, the Respondent contends that the ULP charge in Case No. 2-CA-10083 is barred under section 7116(d) of the Statute because it raises the same issues as those raised in an earlier-filed grievance. We reject the contention and conclude that the issues raised in the charge and the grievance are not the same. In this regard, the ULP charge relates to a Union information request made subsequent to the date on which the Union filed the grievance relied on by the Respondent. Moreover, the grievance contains no allegation concerning a request for information. We note, in this regard, that, apart from its argument that this charge is barred under section 7116(d), the Respondent does not dispute that its failure to provide the requested information violated section 7114(b)(4) of the Statute.

2. The General Counsel does not except to the Judge's finding that one of the employees whose unit status was disputed in this case, Crowley-Harris, is a confidential employee and, under section 7112(b)(2) of the Statute, may not be included in the bargaining unit represented by the Union. In this connection, we agree with the Judge that the Respondent's instructions that a Union steward cease representation of this employee did not violate section 7116(a)(1) and (2) of the Statute. We note, in this regard, that where a union seeks to represent an employee whose unit status is disputed, the union may file a representation petition and/or ULP charge to resolve the unit status issue. We also note the Judge's finding that, even in a situation such as the one involving Crowley-Harris, the Respondent could not lawfully take actions regarding the steward that would "unduly interfere with [the] exercise of rights protected by the Statute." Judge's Decision at 17. Accordingly, although we agree with the Judge that, in this case, the Respondent's actions did not interfere with such rights, we find unclear, and do not adopt, the Judge's statement that union officials act at their peril when they seek to represent employees whose unit status is in dispute. Instead, the facts must be examined in each case to determine whether, even if an employee is found to be outside a bargaining unit, an agency's actions regarding a union's attempt to represent such employee violate the Statute.