48:0424(41)CA - - FDA, Mid-Atlantic Region, Philadelphia, PA and AFGE Council No. 242 /// Food and Drug Administration - - 1993 FLRAdec CA - - v48 p424



[ v48 p424 ]
48:0424(41)CA
The decision of the Authority follows:


48 FLRA No. 41

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FOOD AND DRUG ADMINISTRATION

MID-ATLANTIC REGION

PHILADELPHIA, PENNSYLVANIA

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

COUNCIL NO. 242

(Charging Party/Union)

BY-CA-20054

BY-CA-20056

_____

DECISION AND ORDER

September 3, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent's exceptions and a cross-exception to the Judge's decision in Case No. BY-CA-20056. The Respondent did not file an opposition to the General Counsel's cross-exception in Case No. BY-CA-20056.

The consolidated complaint alleges in Case No. BY-CA-20054 that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to timely respond to the Union's request for documents relating to the work performance of bargaining unit employee William Fidurski and failing to furnish all of the documents requested. The consolidated complaint alleges in Case No. BY-CA-20056 that the Respondent failed to respond to, or furnish information pursuant to, the Union's request for the authority used by the Respondent in determining that a medical statement submitted by bargaining unit employee Christophere Walker was unacceptable.

The Judge found in Case No. BY-CA-20054 that the Respondent was obligated under section 7114(b)(4) of the Statute to furnish the Union with the information requested, where such information existed, and that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to furnish a file to the Union. The Judge further found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to timely respond to the Union's request for information.

The Judge found in Case No. BY-CA-20056 that the Respondent was obligated under section 7114(b)(4) of the Statute to reply to the Union's request for information and to furnish the Union with the information requested. The Judge concluded that by failing to reply or furnish the information to the Union, the Respondent violated section 7116(a)(1), (5), and (8) of the Statute.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of 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, the opposition and cross-exception, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent that they are consistent with this decision.

II. Case No. BY-CA-20054

A. Background

In a memorandum dated July 3, 1990, supervisor Shirley Isbill informed then-employee William Fidurski that his performance on certain cases was deficient.(1) On September 12, 1990, Isbill gave Fidurski written notification that he would not receive a within-grade pay increase because he was not performing at the Fully Successful level based on the amount of work he performed and the quality of that work.

Fidurski filed a grievance over the denial of a within-grade pay increase, and on April 5, 1991, the parties requested the appointment of an arbitrator to hear the grievance.

On April 17, 1991, Council President James Nelsonsent the Respondent a written request for twenty-five documents that were necessary for the Union to prepare for the upcoming arbitration on Fidurski's grievance. The Respondent did not reply to the Union's request for information. On June 19, 1991, Nelson sent another letter to the Respondent requesting the information and explaining why the Union needed that information.

On August 6, 1991, the parties selected an arbitrator for the grievance, and the date of December 5, 1991, was set for the arbitration. However, by late November of 1991, the Respondent had not responded in any way to the Union's requests for information, and Nelson persuaded the arbitrator to postpone the arbitration until the information was provided.

On December 31, 1991, the Respondent responded to the information requests and sent the Union a portion of the information requested. Requested information that was not supplied included Fidurski's administrative diaries and the "Chilean grape" file. Administrative diaries are kept by some employees to record reimbursable mileage and other expenses incurred while carrying out their duties. The Chilean grape file contains "any information concerning the work performed [by Fidurski] in connection with the Chilean gra[p]e case . . . ." Judge's Decision at 5. The Respondent did not explain why it failed to furnish those items. Nelson wrote to the Respondent on January 24, 1992, requesting a more complete response and explaining why the Union needed the missing information. On February 21, 1992, supervisor Isbill furnished the Union with an updated report of time expended by Fidurski on the Chilean grape investigation. In his February 21, 1992, response to the Union, Isbill stated that the documents in the Chilean grape file did not appear relevant and necessary because no deficiencies were alleged with respect to Fidurski's work on that case.

On March 12, 1992, Nelson wrote to the Respondent again, requesting the missing information and explaining that "only by examining the [Chilean grape] file would the Union be able to show the total effort expended by Fidurski in that matter" and that Fidurski's "involvement in [that] significant case prevented completion of matters referenced in the Respondent's within-grade denial." Id. Isbill responded on May 14, 1992, asserting that the administrative diaries prepared by Fidurski were not available and that the Chilean grape file does "not appear relevant and necessary to making a determination regarding whether Fidurski's work on that investigation interfered with his ability to do other work during the relevant period." Id. at 5-6. Although Isbill stated that the Chilean grape file did not appear to be relevant and necessary, "Isbill has never looked at the contents of [the Chilean grape] file." Id. at 6. With respect to the administrative diaries, Isbill stated that the diaries "were not found" and that "such diaries are government property and should have been turned [] in to supervision" when Fidurski ceased his employment. Id.

The Respondent did not furnish the Union with any additional information. Arbitration of Fidurski's grievance has been postponed pending resolution of this case.

B. Administrative Law Judge's Decision

The Judge found that the Respondent was obligated under section 7114(b)(4) of the Statute to provide the Union with the requested information, "where such information was in existence." Id. at 10. The Judge noted that the Respondent's answer to the complaint in this case "admitted the documents the Union sought were 'normally maintained' by the Agency and were 'reasonably available' . . . ." Id. The Judge further noted that at the hearing, the Respondent took the position that it "complied with the Union's request to the extent that such data was in existence and, in any event, the requested data was not 'necessary' within the meaning of the Statute." Id. The Judge noted, however, that in its post-hearing brief, the Respondent "only takes the position that the documents sought were not 'normally maintained by the [A]gency in the regular course of business' . . . ." Id.

The Judge found that the information was necessary within the meaning of section 7114(b)(4) of the Statute. The Judge further found that because the Respondent "raised no argument nor presented any evidence to support a contention that it was prohibited by law from providing the data sought by the Union or that the data constituted 'guidance, advice, counsel[, or training]' within the meaning of section 7114(b)(4) of the Statute[,]" he rejected "any contention that these defenses privilege [the] Respondent to withhold the data" requested by the Union. Id. at n.6.

With respect to whether the information was "normally maintained" by the Respondent, the Judge found that "the facts of this case establish that the documents sought by the Union regarding Fidurski's work, except for the administrative diaries, were 'normally maintained' by the [Respondent] within the meaning of section 7114(b)(4) of the Statute." Id. at 11 (citing Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, New Bedford District Office, New Bedford, Massachusetts, 37 FLRA 1277 (1990) (SSA, New Bedford)). With respect to the administrative diaries, the Judge found that "the record does not support a finding, directly or by reasonable inference, that the diaries were definitely in existence and in the possession of the [Respondent] when requested by the Union." Id. The Judge concluded that the Respondent's failure to furnish the diaries in these circumstances did not constitute a violation of the Statute. However, the Judge further concluded that the Respondent's failure to reply timely to the Union's April 17, 1991, request, "even when the information sought does not exist, in itself constitutes a violation of the Statute." Id.

Accordingly, the Judge concluded that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to reply timely to the Union's information request and by failing to supply the Chilean grape file to the Union.

C. Positions of the Parties

1. Respondent's Exceptions

The Respondent argues that the Judge "misapplied the statutory definition of data which is 'normally maintained by the agency in the regular course of business' regarding the 'Chilean grape file.'" Exceptions at 2. The Respondent contends that "based on credible evidence given by Mr. Isbill, and based on controlling case law," the Authority must reverse the Judge's finding that the Chilean grape file was data which is normally maintained by the Respondent in the regular course of business. Id. at 3. The Respondent notes that Isbill testified, "without rebuttal, that the 'Chilean grape file' was not an official file of the [Respondent]" and is "'not the type of file that people usually . . . keep.'" Id. at 2 (quoting Transcript at 99-100) (emphasis omitted). The Respondent maintains that the "clear meaning of this [testimony] is that the Chilean grape file was . . . maintained by the employee solely on his own, without any official sanction of authorization." Id. The Respondent argues that, in these circumstances, it is "absurd" to conclude that the file can be considered data which is normally maintained by the Respondent within the meaning of section 7114(b)(4) of the Statute. Id. at 3.

The Respondent argues that SSA, New Bedford, cited by the Judge, is distinguishable from this case because "the Chilean grape file was not prepared by the supervisor in his official capacity for the purpose of making a contemporaneous record of the employee's conduct." Id. at 5. The Respondent maintains that in these circumstances the Judge "has failed to support his holding [in this regard] with any appropriate authority . . . ." Id. at 6.

2. General Counsel's Opposition

The General Counsel states that the "Respondent's Answer to the Complaint admits that it normally maintained the data requested by the Union[,]" and that the Respondent "has not amended its Answer." Opposition at 1 (emphasis omitted). The General Counsel maintains that in these circumstances, the issue concerning whether the data was normally maintained by the Respondent in the regular course of business was not placed before the Judge and, therefore, the Respondent "is bound by its Answer." Id.

The General Counsel contends that "[i]n any event, a preponderance of the evidence fully supports the Administrative Law Judge's finding that the Chilean grape file was normally maintained" within the meaning of section 7114(b)(4) of the Statute. Id. (emphasis omitted). In this regard, the General Counsel argues that the file "contains official Government materials" and is "a source of reference" to determine matters including when the employee performed work related to the Chilean grape assignment, the types of activities he performed on that assignment, and the amount of time he spent performing them. Id. at 2 (citing Transcript at 95-105).

D. Analysis and Conclusions (2)

The Respondent excepts only to the Judge's finding that the Chilean grape file was normally maintained by the Respondent in the regular course of business within the meaning of section 7114(b)(4) of the Statute. For the following reasons, we find that in view of the Respondent's admission in its answer to the complaint that the Chilean grape file was normally maintained by the Respondent in the regular course of business, the Respondent may not raise this argument.

As we stated previously, the consolidated complaint in this case alleged that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to respond timely to the Union's request for documents relating to Fidurski's work performance and failing to furnish all of the documents requested. Paragraph 15 of the consolidated complaint alleges that the information requested by the Union relating to Fidurski's work performance is "normally maintained by the Respondent in the regular course of business." General Counsel's Exhibit 1(E). The Respondent filed its answer to the consolidated complaint on June 16, 1992, stating that it admitted the allegation in paragraph 15 of the consolidated complaint. See General Counsel's Exhibit 1(F). The Respondent was given the opportunity to amend its answer at the hearing, and amended its answer only to admit the allegation in paragraph 9 of the consolidated complaint that the Union is the certified exclusive representative and the allegation in paragraph 12 that the persons named in paragraph 10 were acting on behalf of the Respondent. See Transcript at 10-12. The Respondent did not amend its answer with respect to the allegation in paragraph 15 of the consolidated complaint. Moreover, at no time during the hearing did the Respondent raise the issue of whether the Chilean grape file was normally maintained in the regular course of business.

The record indicates that the General Counsel relied on the Respondent's admission in its answer in determining not to pursue the issue further. See General Counsel's Post-Hearing Brief at 7 ("In the Fidurski case . . . the Respondent has admitted that the information requested by the Charging Party was normally maintained in the regular course of its business and was reasonably available.").

In its post-hearing brief, the Respondent argued for the first time that the Chilean grape file is not normally maintained by the Respondent in the regular course of business and continues to argue that issue in its exceptions before the Authority. See Respondent's Post-Hearing Brief at 3. In neither its post-hearing brief nor its exceptions has the Respondent acknowledged or addressed the inconsistency of this position with its answer.

Therefore, the record establishes that: (1) the Respondent admitted the allegation that the data is normally maintained by the Respondent in the regular course of business; (2) the Respondent had an opportunity to amend its answer but did not do so with respect to that allegation; (3) the Respondent never raised that issue at the hearing; and (4) the General Counsel relied on the Respondent's admission. In these circumstances, we find that the Respondent may not now argue that the Chilean grape file is not normally maintained by the Respondent in the regular course of business. We will not allow the Respondent, in the circumstances of this case, to raise that argument for the first time after the hearing. See generally 5 C.F.R. § 2423.13(d). Accordingly, as no other exceptions were filed to the Judge's conclusions in Case No. BY-CA-20054, we find that the Respondent violated section 7116(a)(1), (5), and (8) by failing to reply timely to the Union's information request and by failing to supply the Chilean grape file to the Union.(3)

III. Case No. BY-CA-20056

A. Background

Christophere Walker, who was employed as an investigator at the Respondent's Newark District Office, sought to return to work for the Respondent following a period of illness during February and March of 1991. Before being allowed to return to work, Walker was required to submit medical evidence concerning her illness. Walker submitted certain medical documentation, but it was rejected by the Respondent as unacceptable. On April 1, 1991, Walker was suspended for 5 days for, among other things, failing to provide the Respondent with adequate medical evidence concerning her illness. On April 5, 1991, Walker's supervisor sent Walker a mailgram notifying her that "the medical documentation that she [] had provided to date was inadequate" and that Walker would be "carried in an AWOL [absent without leave] status from April 8, 1991 until [Walker] provided medical documentation establishing that she is ready, willing, and able to perform her job duties." Respondent's Exhibit 2(e) at 3-4. Walker, who was the president of the local Union and Vice President of the Council, and Council President Nelson discussed filing a grievance over the Respondent's determination that the medical documentation already provided by Walker was unacceptable.

Nelson determined that the Union needed more information to evaluate Walker's situation. On April 10, 1991, Nelson wrote to the Director of the Respondent's Newark District Office requesting that the Respondent furnish the Union with information stating the authority that the Respondent relied on in deciding that the medical statement submitted by Walker was unacceptable and indicating in what specific regard the medical statement was unacceptable.

On April 11, 1991, Walker filed a grievance "as an individual without the Union acting as her representative . . . ." Judge's Decision at 7 n.3. The grievance "was signed by Walker and under her name was typed, 'Barbara Schultz' with the designation, 'Shop Steward.'" Id. at 7. The grievance requested as a remedy that the Respondent identify the regulation relied on to bar Walker from the workplace, provide a detailed description of the medical information required, and identify the portions of Walker's medical statement that were considered inadequate.

On April 24, 1991, Nelson wrote a second letter to the Respondent requesting the same information that he had asked for on April 10. The letter stated that "[t]o date[,] AFGE Council 242 has not received any reply concerning this request." Id. at 8. The letter also requested that the Respondent meet with Nelson and discuss the matter. The Respondent "did not meet with Nelson as requested, did not furnish the information to the Union and indeed, has never responded to the Union's request for the Walker information." Id.

Walker's supervisor denied the grievance on May 3, 1991, and sent a copy of that denial to Walker and the shop steward. On June 17, 1991, the Director of Investigations Branch at the Newark District Office denied Walker's grievance at the second step. The Director's letter "gives no indication that anyone other than Walker was sent a copy" of the letter. Id. The record does not indicate whether the grievance was processed further or provide additional information on the ultimate disposition of the grievance.

In addition to filing a grievance, Walker also filed an appeal with the Merit Systems Protection Board (MSPB) challenging the Respondent's refusal to permit her to return to work. Walker's appeal alleged that her placement in an AWOL status constituted a constructive suspension for more than 14 days. An MSPB Administrative Judge rejected the Respondent's argument that the appeal should be dismissed under section 7121(e)(1) of the Statute because Walker had previously filed a grievance. The Administrative Judge noted that even assuming that the subject of Walker's grievance was an alleged constructive suspension, the Respondent had failed to notify Walker of her appeal rights and, thus, Walker's filing of her grievance did not constitute a valid, informed election of procedures under section 7121(e)(1) of the Statute. The Administrative Judge found, however, that Walker failed to prove by a preponderance of the evidence "that she was able to perform her job duties during the period that she claimed that she was constructively suspended[,]" and, therefore, concluded that the MSPB "lacks jurisdiction over her appeal of her placement in an AWOL status." Respondent's Exhibit 2(e) at 9-10 (citation omitted).(4)

B. Administrative Law Judge's Decision

The Judge found that the Respondent raised no issues, at the hearing or in its brief, regarding whether the information sought was "prohibited by law; normally maintained by the Respondent, reasonably available and necessary for full discussion, etc.; or constituted guidance, etc. relating to collective bargaining" under section 7114(b)(4) of the Statute. Judge's Decision at 11. The Judge found that the "Respondent does not now urge these defenses." Id. at 12 n.7. The Judge noted that the Respondent argued only that "the Union is precluded from seeking the information concerning Walker since the matter has been previously litigated in another forum and the Union has already received all pertinent information now being sought." Id. at 12.

The Judge found that the Respondent "never acknowledged receipt of the [information] request or gave any reply to the Union's request for information regarding Walker." Id. The Judge concluded that the Respondent was required to reply to the Union's request even if the reply "was a refusal of the information . . . ." Id. The Judge found that doing so would enable the Union to "properly and timely evaluate what course of action it wished to pursue in order to enforce its [s]tatutory right to obtain the data" and, if the data had been supplied, to determine whether to "use it to support Walker's claim against [the] Respondent." Id. The Judge concluded that as the Respondent failed to reply to the Union's request for information under section 7114(b)(4) of the Statute, the Respondent violated section 7116(a)(1), (5), and (8) of the Statute.

The Judge rejected the Respondent's argument that Walker's grievance or her MSPB appeal precluded the Union from pursuing its claim for information under the Statute. The Judge noted that the grievance was filed by Walker after the Union's information request was made and that at the time the request was made, it "met the requirements of section 7114(b)(4) of the Statute . . . ." Id. The Judge found that, in his view, "a subsequent grievance filed by an individual . . . cannot serve to negate the legal effect of a previously exercised Union right for information, even if both individual requests are identical . . . ." Id. at 13.

With respect to Walker's MSPB appeal, the Judge found that the record did not disclose "what role, if any, the Union representative played or was permitted to play in the proceeding." Id. The Judge further found that although the MSPB Administrative Judge noted Walker's grievance regarding her request for information, "he neither treated the matter nor acknowledged that the issue was legitimately before him for resolution." Id.

To remedy the unfair labor practices, the Judge recommended, in part, that the Respondent be ordered to furnish the requested information to the Union. The General Counsel had requested that the Respondent be ordered to resume processing a grievance filed by Walker. However, the Judge found that as Walker's grievance sought the same information being granted to the Union in his recommended Order, he would not order the Respondent to resume processing Walker's grievance.

C. Positions of the Parties

1. Respondent's Exceptions

The Respondent contends that the Judge "misapplied the law" regarding the Union's receipt of all of the pertinent data in this case. Exceptions at 7. The Respondent notes that the Union President, who requested the information, testified that the Union did not receive any of the requested information. However, the Respondent argues that at least two other Union representatives "had all the pertinent information in this matter[,]" and, therefore, maintains that the Union "at all times had all the necessary information in this matter even if the Union President himself claims to have not known of this . . . ." Id. at 13, 14.

The Respondent further contends that the Judge failed to find that the Union's request for information was barred from being heard as an unfair labor practice by the doctrine of issue preclusion. The Respondent argues that under U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 35 FLRA 978, 982-83 (1990) (Scott Air Force Base), the instant unfair labor practice case "is precluded because the [same] issue was raised and resolved" in an MSPB appeal filed pursuant to section 7121(e)(1) of the Statute. Id. at 8. The Respondent argues that even though "the right to appeal to the MSPB is the employee's right and not the Union's right[,]" the issue concerning the provision of information to the Union may not be litigated as an unfair labor practice because "the Union requested the information on behalf of the employee" and "strictly to represent the employee as in [Internal Revenue Service, Chicago, Illinois, 3 FLRA 479 (1980) (IRS, Chicago).]" Id. at 12. In this regard, the Respondent notes that "[a]t no time" in the Union's letters to the Respondent requesting the information did the Union "indicate that it had any concern about . . . impact on the bargaining unit as a whole." Id. at 13. The Respondent maintains that because employee Walker's MSPB "appeal was accepted as timely [and] nonfrivolous[,]" she and her Union representatives "had the right to raise any affirmative defense under MSPB regulations[,] including the allege[d] non-production of relevant and necessary information." Id. at 12.

The Respondent asserts that this case is distinguishable from Internal Revenue Service, Western Region, San Francisco, California, 9 FLRA 480 (1982) (IRS, San Francisco) because according to the agency in that case, the union had no right to represent the employee before the MSPB. The Respondent maintains that "[t]his contention supports the [Authority's] conclusion that the [MSPB] could not have passed upon the [u]nion's entitlement to the information as bargaining representative." Id. at 11. The Respondent argues that unlike IRS, San Francisco, the employee in this case "was at all times represented by the Union" and appealed not a proposed disciplinary action, but an alleged constructive suspension of more than 14 days. Id.

2. General Counsel's Opposition

The General Counsel contends that to the extent that the Respondent excepts to the Judge's factual findings, the exception should be denied because the Judge's findings are fully supported by a preponderance of the evidence.

The General Counsel further contends that the instant unfair labor practice charge is not barred by the first sentence of section 7116(d) of the Statute.(5) In this regard, the General Counsel argues that the Union's allegations in this case cannot be properly raised in an appeals procedure before MSPB because "the MSPB has no independent source of jurisdiction to hear matters involving allegations of [a] violation of 5 U.S.C. §§ 7114(b)(4) or 7116(a)." Opposition at 3. The General Counsel also argues that because the MSPB Administrative Judge found that the MSPB lacked jurisdiction over employee Walker's appeal, section 7116(d) "present[s] no bar" to litigation of the Union's unfair labor practice case. Id.

3. General Counsel's Cross-Exception

The General Counsel filed a cross-exception to the Judge's recommended Order in Case No. BY-CA-20056. The General Counsel objects to the Judge's failure to require the Respondent, upon the Union's request, "to resume processing of Walker's grievance once the Respondent has furnished the information which the Union requested." Brief in Support of Cross-Exception at 1. The General Counsel notes that the Judge based his decision on "his conclusion that Walker's grievance was limited to seeking the same information as the Union sought in this unfair labor practice proceeding." Id. The General Counsel objects to the Judge's conclusion and argues that the Judge's interpretation of the grievance issues "amounts to a preemption of the parties' and of the arbitrator's statutory roles in the processing of Walker's contractual grievance." Id.

D. Analysis and Conclusions (6)

1. Issue Preclusion

Citing Scott Air Force Base, the Respondent argues that based on the doctrine of issue preclusion, Walker's MSPB appeal prevents the instant case from being heard as an unfair labor practice. In Scott Air Force Base, we held that before the doctrine of issue preclusion can be applied, the following requirements must be satisfied: (1) the same issue must be involved in both cases; (2) the issue must have been actually litigated in the first case; (3) the resolution of the issue must have been necessary to the decision in the first case; (4) the prior decision on the issue to be precluded must be final; and (5) the party precluded must have been fully represented at the prior hearing on the precluded issue. Scott Air Force Base, 35 FLRA at 982-83.

It is clear that those requirements have not been met in this case. The issue of the Union's statutory right to be furnished with data under section 7114(b)(4) was not raised or litigated in the MSPB proceeding. Rather, as noted previously, Walker's case before the MSPB Administrative Judge raised only the merits of the Respondent's decision to place Walker in an AWOL status and whether such action amounted to a constructive suspension of more than 14 days. The Administrative Judge found that Walker had not been constructively suspended and dismissed the case for a lack of jurisdiction. Further, because a petition for review of the Administrative Judge's decision is still pending before the MSPB, the initial decision is not final. In these circumstances, we find that the doctrine of issue preclusion as set forth in Scott Air Force Base does not prevent the instant case from being heard as an unfair labor practice.

2. Section 7116(d) of the Statute

Based on the Respondent's reliance on cases involving section 7116(d) of the Statute and on the General Counsel's interpretation of the Respondent's argument, we construe the Respondent's argument on issue preclusion to include a contention that the Union's unfair labor practice case is barred by the first sentence of section 7116(d) of the Statute.

As noted previously, the first sentence of section 7116(d) of the Statute provides: "Issues which can properly be raised under an appeals procedure may not be raised as an unfair labor practice prohibited under this section." 5 U.S.C. § 7116(d). The Authority has held that the first sentence of section 7116(d) does not bar a union from enforcing in an unfair labor practice proceeding statutory rights that may not be brought before the MSPB. See Veterans Administration Medical Center, Long Beach, California, 41 FLRA 1370, 1378 (1991), petition for review filed, No. 91-70640 (9th Cir. Oct. 23, 1991) (VAMC). In particular, the Authority has found that consideration by the MSPB of whether an employee was entitled to information alleged to be relevant to a disciplinary action did not and could not constitute a determination of the union's right to the same information under section 7114(b)(4) of the Statute. IRS, San Francisco, 9 FLRA at 480-81.

The Respondent argues that Walker's MSPB appeal was accepted as timely and nonfrivolous and that Walker and her Union representatives "had the right to raise any affirmative defense under MSPB regulations[,] including the allege[d] non-production of relevant and necessary information." Exceptions at 12. The record reveals that the issue in Walker's MSPB appeal concerned whether Walker was constructively suspended for more than 14 days after having been placed in an AWOL status for allegedly failing to provide acceptable medical documentation concerning her illness. The issue in the instant unfair labor practice case, however, concerns the Union's right under section 7114(b)(4) to receive information it requested from the Respondent relating to Walker's medical documentation. Even though the Union sought information about the underlying action involved in the MSPB appeal, the Union is seeking to enforce in this unfair labor practice case its statutory right to receive requested data, whereas Walker sought to challenge the merits of the underlying action. Further, consistent with VAMC and IRS, San Francisco, the Union could not have sought to enforce its statutory right to receive requested data through the MSPB proceeding. Accordingly, we find that the issue raised in the unfair labor practice case was not and could not have properly been raised in an MSPB proceeding within the meaning of section 7116(d) of the Statute.

We note that the Respondent relies on IRS, Chicago to support its position that section 7116(d) bars the instant unfair labor practice case and distinguishes IRS, San Francisco based on the difference in the underlying actions appealed and on the agency's statement in IRS, San Francisco that the union could not have represented the employee before the MSPB. We find that the Respondent's reliance on IRS, Chicago is misplaced because that case arose under Executive Order 11491 and did not concern a union's statutory right to be furnished with data. We further reject the Respondent's reliance on footnote 6 of the Administrative Law Judge's decision in IRS, San Francisco as a factor distinguishing that case from the instant case. Footnote 6 does no more than state the agency's assertion in that case that the union had no right to represent employees at MSPB hearings. Nothing in IRS, San Francisco indicates that such an assertion was accepted as fact or was deemed necessary to the Judge's or the Authority's conclusion that the MSPB could not have adjudicated the union's statutory claim. Moreover, although Walker appealed an alleged constructive suspension of more than 14 days rather than a 30-day suspension as the employee in IRS, San Francisco, that does not change our conclusion that the MSPB could not have adjudicated the Union's statutory claim in this case.

3. Union's Receipt of Data

The Respondent argues that the Judge misapplied the law regarding the Union's receipt of all of the pertinent data in this case because at least two other Union representatives had all of the pertinent information in this matter. The Respondent maintains that in these circumstances the Union "at all times had all the necessary information in this matter even if the Union President himself claims to have not known of this . . . ." Exceptions at 13. The Judge found, and the Respondent does not dispute, that the Respondent made no reply to Nelson's information requests. The Judge further found, based on Nelson's testimony, that the Union never received the data requested by Nelson and that Nelson "did not delegate any other Union representative to represent the Union in connection with the request for information in Christophere Walker's case." Judge's Decision at 8. The Respondent has failed to show by a preponderance of the evidence that the Union received the data requested by Nelson. Rather, in our view, the Respondent is simply disputing the Judge's determination to credit Nelson's testimony.

The demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Detroit Teleservice Center, Detroit, Michigan, 42 FLRA 22, 26 (1991).

4. Conclusion and Remedy

For the foregoing reasons, we reject the Respondent's exceptions and adopt the Judge's conclusion that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to reply to the Union's requests for information under section 7114(b)(4) of the Statute and failing to furnish the Union with the information requested.

The General Counsel filed a cross-exception to the Judge's recommended Order disputing the Judge's reasoning for failing to order the Respondent to resume processing Walker's grievance, upon the Union's request, once the Union has received the information. The General Counsel argues that the Judge's interpretation of the grievance issues "amounts to a preemption of the parties' and of the arbitrator's statutory roles in the processing of Walker's contractual grievance." Brief in Support of Cross-Exception at 1. The Respondent did not file an opposition to the General Counsel's cross-exception.

The Authority has previously required an agency, upon the union's request, to reconsider a grievance once data requested in connection with that grievance has been furnished to the union. See Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 43 FLRA 549, 551-52 (1991). The Judge found that the Union had requested the information, in part, to determine whether to "use it to support Walker's claim against [the] Respondent." Judge's Decision at 12.

We agree with the General Counsel that it is for the parties, or an arbitrator, to ultimately determine the scope of the issues presented by a grievance. Therefore, even though Walker's step one grievance requested as relief that the Respondent provide her with the same information requested by the Union, the relief ultimately sought by the Union could be different if, upon receipt of the information, the Union decided to take the case to arbitration. Accordingly, we will modify the Judge's recommended Order to require the Respondent to reconsider the grievance upon the Union's request.

IV. 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, Mid-Atlantic Region, Philadelphia, Pennsylvania, shall:

1. Cease and desist from:

        (a) Failing and refusing to furnish, upon request of the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of its employees, the Chilean grape file assembled by William Fidurski.

        (b) Failing and refusing to furnish the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of its employees, with the information it requested by letter dated April 10, 1991, to the Director of the Newark District Office concerning Christophere Walker.

        (c) Failing to respond or reply in a timely manner to requests for information made by the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of its employees.

        (d) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

        (a) Upon request, furnish the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of its employees, the Chilean grape file assembled by William Fidurski.

        (b) Upon request, furnish the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of its employees, the information it requested by letter dated April 10, 1991, to the Director of the Newark District Office concerning Christophere Walker.

        (c) Respond or reply in a timely manner to requests for information made by the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of its employees.

        (d) Upon request of the American Federation of Government Employees, AFL-CIO, Council No. 242, reconsider the April 11, 1991, grievance of Christophere Walker in accordance with the negotiated grievance procedure, after having furnished it with the above information.

        (e) Post at its Newark District facilities 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 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.

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, upon request of the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of our employees, the Chilean grape file assembled by William Fidurski.

WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of our employees, with the information it requested by letter dated April 10, 1991, to the Director of the Newark District Office concerning Christophere Walker.

WE WILL NOT fail to respond or reply in a timely manner to requests for information made by the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of our employees.

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

WE WILL, upon request, furnish the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of our employees, the Chilean grape file assembled by William Fidurski.

WE WILL, upon request, furnish the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of our employees, the information it requested by letter dated April 10, 1991, to the Director of the Newark District Office concerning Christophere Walker.

WE WILL respond or reply in a timely manner to requests for information made by the American Federation of Government Employees, AFL-CIO, Council No. 242, the exclusive representative of certain of our employees.

WE WILL, upon request of the American Federation of Government Employees, AFL-CIO, Council No. 242, reconsider the April 11, 1991, grievance of Christophere Walker in accordance with the negotiated grievance procedure, after having furnished it with the above information.

__________________________________
(Activity)

Dated:________________ 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 Region, Federal Labor Relations Authority, whose address is: 99 Summer Street, Room 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.




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

1. Fidurski ceased working for the Respondent on October 19, 1990, in connection with a disability claim. See Judge's Decision at 5.

2. No exceptions were filed to the Judge's determinations in Case No. BY-CA-20054 that: (1) disclosure of the information sought by the Union was not prohibited by law, the information was necessary, and did not constitute guidance, advice, counsel, or training within the meaning of section 7114(b)(4) of the Statute; (2) the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to reply timely to the Union's information request; and (3) the administrative diaries sought by the Union were not normally maintained by the Respondent or reasonably available within the meaning of section 7114(b)(4) of the Statute. As no exceptions were filed to those portions of the Judge's decision in Case No. BY-CA-20054, we adopt those portions of the Judge's decision.

3. We note that despite the Respondent's admission in its answer that the requested data was normally maintained and reasonably available under section 7114(b)(4), the Judge found that the administrative diaries were not "in existence and in the possession of the Agency when requested by the Union." Judge's Decision at 11. As the Respondent raised the issue of the existence of the administrative diaries at the hearing and as no exceptions were filed on this issue, we will not disturb the Judge's finding.

4. A petition for review of the Administrative Judge's initial decision in Walker v. Department of Health and Human Services, No. NY07529110303 (June 28, 1991) is pending before the MSPB.

5. The first sentence of section 7116(d) of the Statute states:

Issues which can properly be raised under an appeals procedure may not be raised as an unfair labor practice prohibited under this section.

6. No exceptions were filed to the Judge's determination in Case No. BY-CA-20056 that the Respondent failed to reply to the Union's information request and that the information requested by the Union met the criteria set forth in section 7114(b)(4) of the Statute. As no exceptions were filed to those portions of the Judge's decision in Case No. BY-CA-20056, we adopt those portions of the Judge's decision without further discussion.

________________________________________________________________
________________________________________________________________

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424

. . . . . . . . . . . . . . . . .

.

FOOD AND DRUG ADMINISTRATION 
MID-ATLANTIC REGION, 
PHILADELPHIA, PENNSYLVANIA .
Respondent .

and                                                                                              Case Nos. BY-CA-20054
                                                                                                                     BY-CA-20056

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, 
AFL-CIO, COUNCIL #242 
Charging Party .

Andrew Rudyk, Esq.
For the Respondent

David Y. Tobias
For the Charging Party

Peter F. Dow, Esq.
For the General Counsel

Before: SALVATORE J. ARRIGO
Administrative Law Judge

 

DECISION

  Statement of the Case

            This matter arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (herein the Statute).

             Upon unfair labor practice charges having been filed by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for the Boston Regional Office, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by failing to timely respond to the Union's request for certain information and failing to fully furnish the information when some data was ultimately provided to the Union.

           A hearing on the Complaint was conducted in New York, New York at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally.  Briefs were filed by Respondent and the General Counsel and have been carefully considered.

            Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:

Findings of Fact

             At all times material the Union has been the exclusive collective bargaining representative of an appropriate unit of Respondent's employees. 

Case No. BY-CA-20054

       On a number of occasions in 1990 William Fidurski, an Investigator with Respondent's Brunswick Office of the Newark District, had been notified by his supervisor, Shirley Isbill, of various perceived deficiencies in Fidurski's job performance.  By memorandum of July 3, 1990 Isbill made reference to specific cases in which he questioned Fidurski's work and informed Fidurski, among other things:

 . . . I have reviewed your work performance since the beginning of the current EPMS rating period on 10-1-89 and find that your work performance is less than "Fully Satisfactory" with respect to job elements #2 and #3, both of which are critical elements of your FY90 EPMS Performance Standard.

 Less than "Fully Successful" performance on job element #2 occurs when investigation reports are unreasonably lengthy and provide unnecessary data; when reports are submitted late without adequate justification; when frequent and close supervision is required to ensure submission and completion of reports or work assignments.

 Less than "Fully Successful" performance on job element #3 occurs when there is a pattern of write-up time far exceeding on-site time; when there is a pattern of unexplained time frame deviations; when operations, in general, take longer to compete than is necessary for the results achieved.

The district's data system reflects that you have not collected any samples during the current rating period and that you conducted only 5 inspections between 10-1-89 and 6-18-90.  My finding that your performance is less than "Fully Satisfactory" is based on my review of the following assignments. . . 

            On September 12, 1990 Fidurski was given written notification from Isbill that Respondent decided to withhold a within-grade pay increase from Fidurski.  Isbill had concluded that Fidurski was not performing at the "Fully Successful" level necessary to be entitled to a within-grade increase. Isbill's September 12, 1990 notification to Fidurski of the decision to withhold a with-grade increase stated: 

Your work performance is less than "Fully Satis-factory" with respect to job elements #2 and #3, both of which are critical elements of your FY90 EPMS Performance Standard.  Specific information relative to deficiencies in your work performance was outlined in my memos of 4/19/90 and 6/4/90, the Performance Improvement Plan issued to you on 7/3/90 and my memo of 7/30/90.

 

The district's data system reflects that you have not collected any samples during the current rating period and you have completed only 7 inspections between 10-1-89 and 8-31-90.  This is not acceptable for an investigator at the GS-12 level. 

You must increase the number of inspections conducted, reduce the unnecessary time expended on preparation of the written reports and submit you final reports within established timeframes. 

            Fidurski filed a grievance on the withholding of the within-grade and after the grievance was rejected by Respondent through various steps of the parties' negotiated grievance procedure, on April 5, 1991 the parties requested the appointment of an arbitrator from the Federal Mediation and Conciliation Service to resolve the matter.

            On April 17, 1991 Counsel President James Nelson sent Respondent a request for 25 documents, among which were various reports Fidurski has assembled in cases which had been assigned to him which Respondent had referred to in its memorandum to him of July 30, 1990, supra.  Nelson advised Respondent that the documents were necessary so the Union could prepare for the forthcoming arbitration on Fidurski's grievance.  Nelson testified that he needed the documents to respond to specific management allegations regarding Fidurski's performance and to provide evidence that Fidurski's productivity and quality of work was better than what management had alleged.  Nelson testified he wished to demonstrate to the arbitrator with the requested documents that Fidurski performed more work and more complicated tasks than Fidurski's had determined.  More specifically, Nelson requested a "Chilean fruit file," an important case Fidurski had been deeply involved in, which concerned numerous matters not directly reflected in Fidurski's reports but Nelson felt would nevertheless show individual productivity.  Also among the requested documents were Fidurski's administrative diaries back to January 1989 and the file of a particular pharmaceutical company.  Respondent made no reply to the Union's request.

             On June 19 Nelson sent another letter to Respondent requesting the information, informing Respondent that the data was needed by the Union in order to properly represent Fidurski.  The letter also noted that it was an unfair labor practice pre-filing notification and requested a meeting with Respondent on the matter.  Respondent did not reply to either the Union's request for data or a meeting.[1]  On August 6, 1991 the parties selected an arbitrator and the date of December 5, 1991 was set for the Fidurski arbitration.  However, by late November Respondent still had not responded in any way to the Union's information request and accordingly Nelson prevailed upon the arbitrator to postpone the arbitration until the information was provided. 

             On December 30, 1991 Respondent finally responded to the Union's information request.  On that date Respondent sent the Union a portion of the information requested.  The missing information included Fidurski's administrative diaries and the Chilean fruit file.  Respondent did not provide any explana-tion to the Union regarding why it had omitted these items from its response.  In addition, the pharmaceutical company file furnished was illegible.

              Nelson wrote again to the Respondent on January 24, 1992 requesting a more complete response and explaining the Union's need for the missing information.  On February 21 Supervisor Isbill furnished the Union with a readable copy of the pharmaceutical company file and with an ". . . updated report of time expended by Mr. Fidurski during fiscal year 1990 on reports concerning the Chilean grape investigation. . . ."  However, Isbill testified that this updated report of time was not necessarily an accurate reflection of Fidurski's work on the Chilean investigation.  He also testified that the original report of time expended by Fidurski was different from the updated report; that he had used the original report in making the determination to deny Fidurski's within-grade increase; and that he never provided the original time report to the Union.  Isbill further testified that any information concerning the work Fidurski performed in connection with the Chilean grade case would be in the Chilean grape file.  Isbill wrote in his February 21, 1992 response to the Charging Party concerning that file:

 Since no deficiencies are alleged with respect to the quality, timeliness or use of time with respect to these documents, their content is immaterial to the issues in this arbitration case.  Therefore, the documents themselves are not being provided because their contents do not appear relevant and necessary.

 Isbill's response also provided the first indication that Respondent did not possess Fidurski's administrative diaries.

             The Union considered Respondent's reply to be incomplete and on March 12, 1992 Nelson wrote again requesting the missing information stating that the requested documents were ". . . critical to Mr. Fidurski's defense of his performance, as they are clear evidence of the magnitude, scope, and importance of Mr. Fidurski's workload."  With reference to the Chilean grape file, Nelson asserted that the report of time expended did not present a complete picture of the extent of Fidurski's work on the file and that only by examining the file would the Union be able to show the total effort expended by Fidurski in that matter.  In the Union's view, the amount and quality of Fidurski's work in that case would illustrate his abilities and would also show that his involvement in this significant case prevented completion of matters referenced in the Respondent's within-grade denial.  Nelson also protested that Fidurski had left the administrative diaries in his desk when he left the office on October 19, 1990 in connection with a disability claim and that the diaries were, therefore, readily available to Respondent.

             Isbill responded on May 14, 1992 asserting that Fidurski's administrative files were not available and that ". . . the contents of the Chilean grape file do not appear relevant and necessary to making a determination regarding whether Fidurski's work on that investigation interfered with his ability to do other work during the relevant period."  Despite these assertions, Isbill has never looked at the contents of that file. 

            With regard to the administrative diaries, such diaries were kept by some inspectors to separately record reimbursable mileage and other expenses incurred while carrying out their duties.  Supervisor Isbill testified that when he sought to gather the diaries when assembling the requested data in July 1991, he was unable to locate the diaries since Fidurski had been off the job for some time at that point and his desk items had been stored and the diaries were not found.  Isbill testified that although he "believed" Fidurski kept such diaries, he did not know where such diaries might be or indeed, if Fidurski left the diaries when he ceased his employment.  According to Isbill, such diaries are government property and should have been turned-in to supervision or left among Fidurski's belongings which remained in his desk upon his departure.  Fidurski did not testify in these proceedings.

 Respondent did not furnish the Union with any additional information concerning its request and the arbitration of Fidurski's grievance has been postponed pending resolution of the Complaint in this case.

 Case No. BY-CA-20056

             In April 1991 Christophere Walker, a unit employee in Respondent's Newark District Office, contacted Union President Nelson with a complaint.  Walker informed Nelson that Respondent was opposing her return to work following a period of illness in February and March.  Walker had supplied Respondent with certain medical documentation which Respondent had rejected as unacceptable and would not permit her to return to work until she had provided additional medical documentation.  Indeed, on April 1 Respondent suspended Walker for, among other things, failing to follow Agency instructions regarding providing adequate medical evidence of her illness.  Walker and Nelson discussed filing a grievance over her complaint.  Nelson testified that the Union needed more information concerning Respondent's determination that the medical documentation already provided by Walker was unacceptable.  Accordingly, on April 10, 1991 Nelson wrote to the Director of Respondent's Newark District Office requesting the following information:

 

1.  By what authority has the medical statement submitted by Ms. Walker been determined to be unacceptable. 

2.  In what specific regard is the medical statement unacceptable. 

            On April 11, 1991 Walker, President of a local union covering Respondent's New Jersey facilities and Vice President of the Council, filed a step-one grievance with her super-visor, Mimi Remache.  Under "Remedy," the grievance stated: 

Identify the regulation(s) by which Ms. Remache barrs (sic) me from work.
 

Provide a detailed description of the information required such that the Medical Reporting Statement is considered to be complete.

 Identify the portions of the statement that Ms. Remache considers to be inadequate, and state the detail that would render those portions complete.

Please provide the information as soon as possible so that I am able to comply with Ms. Remache's requirements.

            The grievance was signed by Walker and under her name was typed, "Barbara Schultz" with the designation, "Shop Steward."

             Walker's supervisor Remache denied the grievance on May 3, 1991.  Remache's correspondence to Walker stated she had not yet received an "adequately completed Medical Reporting Statement" and the information needed to be included on the Statement was ". . . written on the form itself."  The letter contained a "cc" notation indicating "Barbara Schultz, Steward," was sent a copy of the reply. 

             On May 24, 1991 Walker processed her grievance to the second step by forwarding to Elaine Messa, Director of Investigations Branch at the Newark District Office, a copy of her first step grievance, the Remache reply, and a comment that Remache did not address her grievance.[2]  The second step filing did not note involvement of a Union steward.[3]  Walker's second step grievance was denied by Messa on June 17, 1991.  Her reply stated, in pertinent part: 

The Agency has no obligation to research and supply the regulations and information you requested.  You have been advised by Ms. Remache on several occasions as outlined in her Step 1 response that you are required to supply adequate medical documentation in order for management to make an informed managerial determination regarding your being ready, willing and able to return to work. 

            Messa's response gives no indication that anyone other than Walker was sent a copy of this reply.  The record does not reveal if the grievance was processed further or provide additional details concerning the ultimate disposition of this grievance.   

            Meanwhile, on April 24, 1991 Nelson wrote a second letter to Respondent requesting the same information he had asked for in his April 10th letter.  The letter, in the form of a unfair labor practice charge pre-filing notification provided for in the parties' collective bargaining agreement, stated, inter alia

To date AFGE Council 242 has not received any reply concerning this request.  Please be advised that your actions are causing severe personal financial hardship for a dedicated and experienced FDA employee. 

Nelson also requested management meet and discuss the matter.  Respondent did not meet with Nelson as requested, did not furnish the information to the Union and indeed, has never responded to the Union's request for the Walker information.  The record reveals Nelson originates most of the Union's requests for information and he did not delegate any other representative to represent the Union in connection with the request for information in Christophere Walker's case.   

            Although Walker filed a grievance as indicated above, she also challenged Respondent's refusal to permit her return to work by filing an appeal with the Merit Systems Protection Board (MSPB) alleging she had been constructively suspended for more than 14 days effective March 28, 1991.  The matter was heard before an Administrative Judge of the MSPB on June 4, 1991.[4]  The Administrative Judge denied Walker's appeal, essentially finding that Walker failed to prove by a preponderance of the evidence that she was able to perform her job duties during the period she claimed to have been constructively suspended.[5]   

            During the MSPB proceeding Respondent moved to dismiss the appeal on jurisdictional grounds, contending Walker's grievance constituted an election of remedies under section 7121(e)(1) of the Statute, thereby precluding Walker from pursuing an MSPB appeal of her alleged constructive suspension.  The Administrative Judge acknowledged that Walker in her grievance was seeking the regulation Remache relied on and a detailed description of what it was Walker would have to produce to have her medical reporting statement acceptable.  However, he found, "assuming arguendo that the subject of (Walker's) grievance was an alleged constructive suspension," that Respondent failed to notify Walker of her appeal rights.  The Administrative Judge concluded that because of this failure, Walker's filing of her grievance did not constitute a valid, informed election of procedures under section 7121(e)(1) of the Statute.  Therefore, Respondent's motion to dismiss on jurisdictional grounds was denied. 

Discussion and Conclusions 

Case No. BY-CA-20054 

            With regard to Fidurski, the General Counsel contends the information the Union sought from Respondent was data within the meaning of section 7114(b)(4) of the Statute which requires an agency to furnish, upon request of the exclusive bargaining representative and to the extent not prohibited by law, data: 

            (A)  which is normally maintained by the agency in the regular course of business; 

            (B)  which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and 

            (C)  which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining. . . 

            Respondent's Answer to the Complaint herein admitted the documents the Union sought were "normally maintained" by the Agency and were "reasonably available" but denied the documents were "necessary" and did not constitute management collective bargaining guidance or were not prohibited from disclosure by law.  At the hearing Respondent took the position that it complied with the Union's request to the extent that such data was in existence and, in any event, the requested data was not "necessary" within the meaning of the Statute.  However, in its brief Respondent only takes the position that the documents sought were not "normally maintained by the agency in the regular course of business" and accordingly, were not subject to the disclosure require-ment of the Statute.[6] 

            I conclude Respondent was obligated under section 7114(b)(4) of the Statute to provide the Union with the information it requested, where such information was in existence.  Respondent concluded Fidurski was not performing at the Fully Successful level and denied Fidurski a within-grade pay increase based upon its evaluation of the amount of work Fidurski performed when considering the quality of Fidurski work product.  Specific cases were referred to by Isbill in his evaluation of Fidurski.  The Union then sought information related to some of those cases as well as other work performed by Fidurski in order to challenge Respondent's conclusions, and the Union specifically stated why it needed the data.  These reasons, as set forth above, fully support why the documents sought by the Union, including the Chilean grape file, were necessary to bolster and support Fidurski's case.  In these circumstances I conclude the information sought by the Union regarding Fidurski was necessary within the meaning of section 7114(b)(4) of the Statute.  Cf. U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 195 (1991).   

            I further conclude the facts of this case establish that the documents sought by the Union regarding Fidurski's work, except for the administrative diaries, were "normally maintained" by the agency within the meaning of section 7114(b)(4) of the Statute.  Cf. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, New Bedford District Office, New Bedford, Massachusetts, 37 FLRA 1277 (1990).  As to the administrative diaries, the record does not support a finding, directly or by reasonable inference, that the diaries were definitely in existence and in the possession of the Agency when requested by the Union.  Accordingly, Respondent's failure to produce such diaries in these circumstances does not constitute a violation of the Statute.  See U.S. Naval Supply Center, San Diego, California (Naval Supply Center), 26 FLRA 324 (1987). 

            However, with regard to the administrative diaries and all the other information the Union requested on April 17, 1990, Respondent failed to reply to the Union until December 30, 1991 when it supplies the Union with some of the requested information.  Such failure to respond in a timely manner, without good cause, even when the information sought does not exist, in itself constitutes a violation of the Statute.  Department of Justice, United States Immigration Service, United States Border Patrol, El Paso, Texas, 43 FLRA 697, 710 (1991); Veterans Administration, Washington, D.C. and Veterans Administration Regional Office, Buffalo, New York, 28 FLRA 260, 266-267 (1987) and Navy Supply Center. 

            Thus I conclude that Respondent's delay in replying to the Union's request for information concerning Fidurski and its failure to supply the Chilean grape file violated sections 7116(a)(1), (5) and (8) of the Statute.

 Case No. BY-CA-20056 

            With regard to Walker, the General Counsel contends the information the Union sought from Respondent was also data within the meaning of section 7114(b)(4) of the Statute.  Respondent in its Answer denied the allegation and put into issue the question of whether the data sought was: prohibited by law; normally maintained by the agency; reasonably available and necessary for full discussion, etc.; or constituted guidance, etc. relating to collective bargaining.  However, at the hearing and in its brief Respondent raises none of these issues regarding 7114(b)(4).[7]  Rather, Respondent in its brief takes the position that the Union is precluded from seeking the information concerning Walker since the matter has been previously litigated in another forum and the Union has already received all pertinent information now being sought.  This is tantamount to a defense that the information is not necessary within the meaning of section 7114(b)(4)(B) of the Statute.

            The record reveals Respondent never acknowledged receipt of the request or gave any reply to the Union's request for information regarding Walker. I find Respondent was required to reply to the exclusive representative's request for data under section 7114(b)(4) of the Statute.  The Union as the exclusive representative had the right and obligation to represent unit employees in dealing with management concerning working conditions.  In my view, a reply from Respondent was needed by the Union, even if it was a refusal of the information, so the Union could properly and timely evaluate what course of action it wished to pursue in order to enforce its Statutory right to obtain the data.  If the information was supplied, the Union might, if it so desired, use it to support Walker's claim against Respondent.  Accordingly, I conclude Respondent's failure to reply to the Union's request violated section 7116(a)(1), (5) and (8) of the Statute.  Id. and see U.S. Naval Supply Center, San Diego, California, 26 FLRA 324 (1987) and Veterans Administration Washington, D.C., 28 FLRA 260 (1987). 

            I do not find either Walker's personal grievance she filed on April 11, 1991 against Respondent seeking the same data the Union originally sought on April 10, 1991 or Walker's MSPB proceeding precluded the Union from pressing its claim for information under the Statute.  The Union's request for information on Walker's behalf was made for use in furtherance of Walker's complaint that she was not permitted to return to work and to assist Walker in her dispute with Respondent concerning management's rejection of her medical statement.  The Union made its request on April 10 prior to any grievance having been filed, although the filing of a grievance over management's action was certainly a possibility at that time.  Clearly, at this juncture the Union's request for information met the requirements of section 7114(b)(4) of the Statute, and I so find.  On the following day, however, Walker filed a grievance as an individual separately seeking the same information the Union sought on April 10.  In my view, a subsequent grievance filed by an individual, filed under the negotiated grievance procedure, cannot serve to negate the legal effect of a previously exercised Union right for information, even if both individual requests are identical, and I reject Respondent's contention that the processing of Walker's grievance precluded the Union from pressing its own claim for information under rights granted to it by the Statute. 

            I also conclude Walker's MSPB proceeding had no effect on the Union's request for information.  Thus, even if the Union was present at the MSPB proceeding as the MSPB Administrative Judge's decision indicates, the record does not disclose what role, if any, the Union representative played or was permitted to play in the proceeding.  Further, the Judge's decision reveals that while the matter of Walker's grievance regarding her request for information was noted by the Judge, he neither treated the matter nor acknowledged that the issue was legitimately before him for resolution.  Rather, he merely stated he was "assuming arguendo" that the subject of Walker's grievance was an alleged constructive discharge, as it clearly was not, before dismissing the consideration of the grievance on jurisdictional grounds.  Accordingly, I conclude that the record herein does not support Respondent's contention that either Walker's grievance or the MSPB proceeding served to preclude the Union's seeking the information at issue herein by invoking its Statutory rights. 

            In view of the entire foregoing and the record herein, I conclude that by the conduct more fully described above Respondent violated section 7116(a)(1), (5) and (8) of the Statute and I recommend the Authority issue the following:[8]

 

ORDER 

            Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statue, it is hereby ordered that the Food and Drug Administration Mid-Atlantic Region, Philadelphia, Pennsylvania, shall:

             1.            Cease and desist from: 

                        (a)  Failing and refusing to furnish, upon request

of the American Federation of Government Employees, AFL-CIO,Council #242, the exclusive representative of certain of its employees, the Chilean grape file assembled by William Fidurski. 

                        (b)            Failing and refusing to furnish the American Federation of Government Employees, AFL-CIO, Council #242 with the information it requested by letter dated April 10, 1991to the Director of the Newark District Office concerning Ms. Christophere Walker. 

                        (c)            Failing to respond or reply in a timely manner to a request for information made by the American Federation of Government Employees, AFL-CIO, Council #242. 

                        (d)            In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute. 

            2.            Take the following affirmative action in order to effectuate the purposes and policies of the Federal service Labor-Management Relations Statute:   

                        (a)            Upon request, furnish the American Federation of Government Employees, AFL-CIO, Council #242, the employees' exclusive representative, the Chilean grape file assembled by William Fidurski. 

                        (b)            Upon request, furnish the American Federation of Government Employees, AFL-CIO, Council #242 the information it requested by letter dated April 10, 1991 to the Director of the Newark District Office concerning Ms. Christophere Walker. 

                        (c)            Respond or reply in a timely manner to requests for information made by the American Federation of Government Employees, AFL-CIO, Council #242. 

                        (d)            Post at its Newark District facilities 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, 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. 

                        (e)            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.

 

Issued, Washington, DC, February 19, 1993

  _______________________________
     SALVATORE J. ARRIGO
    Administrative Law Judge

                                   

 

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

 WE WILL NOT fail and refuse to furnish, upon request of the American Federation of Government Employees, AFL-CIO, Council #242, the exclusive representative of certain of our employees, the Chilean grape file assembled by William Fidurski.

WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, AFL-CIO, Council #242 with the infor-mation it requested by letter dated April 10, 1991 to the Director of the Newark District Office concerning Ms. Christophere Walker.

WE WILL NOT fail to respond or reply in a timely manner to a request for information made by the American Federation of Government Employees, AFL-CIO, Council #242.

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

 WE WILL, upon request, furnish the American Federation of Government Employees, AFL-CIO, Council #242, the employees' exclusive representative, the Chilean grape file assembled by William Fidurski.

 WE WILL, upon request, furnish the American Federation of Government Employees, AFL-CIO, Council #242, the information it requested by letter dated April 10, 1991 to the Director of the Newark District Office concerning Ms. Christophere Walker.

 WE WILL respond or reply in a timely manner to requests for information made by the American Federation of Government Employees, AFL-CIO, Council #242.

                                 
         (Activity)

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

______________________________________________________________________________________

                                                                                    ALJ's FOOTNOTES

[1]Although Respondent did not reply to the Union, in July 1991 Fidurski's supervisor Isbill assembled a package of information concerning the Union's original request.  Isbill sent that information to Diane Kalitas, the Director of Respondent's Compliance Branch.  Respondent presented no evidence concerning what, if any, action Kalitas took with respect to the Union's request.

[2]Walker did not testify at the hearing before me.

[3]It would appear from all the circumstances that Walker filed the grievance as an individual without the Union acting as her representative, as is permissible under Article 26 of the negotiated agreement.

[4]The decision of the Administrative Judge shows Derrick F. Thomas, American Federation of Government Employees of New Brunswick, N.J. as appearing "pro se".

[5]5/  Walker's doctor's medical opinion was found to be conclusionary and accordingly not accorded significant probative weight by the Administrative Judge.

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