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 su