DEPARTMENT OF VETERANS AFFAIRS VETERANS AFFAIRS MEDICAL CENTER RICHMOND, VIRGINIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2145, AFL-CIO

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

MEMORANDUM DATE: July 7, 2006

TO: The Federal Labor Relations Authority

FROM: SUSAN E. JELEN

Administrative Law Judge

SUBJECT: DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

RICHMOND, VIRGINIA

Respondent

and Case No. WA-CA-05-0453

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2145, AFL-CIO

Charging Party

Pursuant to section 2423.34(b) of the Rules and Regulations 5 C.F.R. § 2423.34(b), I am hereby transferring the above case to the Authority. Enclosed are copies of my Decision, the service sheet, and the transmittal form sent to the parties. Also enclosed are the transcript, exhibits and any briefs filed by the parties.

Enclosures


UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

RICHMOND, VIRGINIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2145, AFL-CIO

Charging Party

Case No. WA-CA-05-0453

NOTICE OF TRANSMITTAL OF DECISION

The above-entitled case having been heard before the undersigned Administrative Law Judge pursuant to the Statute and the Rules and Regulations of the Authority, the undersigned herein serves her Decision, a copy of which is attached hereto, on all parties to the proceeding on this date and this case is hereby transferred to the Federal Labor Relations Authority pursuant to 5 C.F.R. § 2423.34(b).

PLEASE BE ADVISED that the filing of exceptions to the attached Decision is governed by 5 C.F.R. §§ 2423.40-41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and 2429.27.

Any such exceptions must be filed on or before

AUGUST 7, 2006, and addressed to:

Office of Case Control

Federal Labor Relations Authority

1400 K Street, NW, 2nd Floor

Washington, DC 20005

SUSAN E. JELEN

Administrative Law Judge

Dated: July 7, 2006

Washington, DC


OALJ 06-21

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C.

DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

RICHMOND, VIRGINIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2145, AFL-CIO

Charging Party

Case No. WA-CA-05-0453

Thomas E. Bianco, Esquire

For the General Counsel

Ruth November, Esquire

Pete Jungen

For the Respondent

Before: SUSAN E. JELEN

Administrative Law Judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq. (the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (hereinafter the Authority), 5 C.F.R. Part 2423.

On July 8, 2005, the American Federation of Government Employees, Local 2145, AFL-CIO (Charging Party or Local 2145) filed an unfair labor practice charge in this matter against the Department of Veterans Affairs, Veterans Affairs Medical Center, Richmond, Virginia, (Respondent or VAMC Richmond). (G.C. Ex. 1(a)) On January 20, 2006, the Regional Director of the Washington Region of the Federal Labor Relations Authority (Authority) issued a Complaint and Notice of Hearing, which alleged that the Respondent violated section 7116(a)(1)(5) and (8) of the Statute by failing and refusing to provide the Charging Party with certain information requested under section 7114(b)(4). On March 6, 2006, the Respondent filed an answer to the complaint, in which it admitted certain allegations while denying the substantive allegations of the complaint. (G.C. Ex. 1(c) and (d)).

A hearing was held in Richmond, Virginia on May 8, 2006, at which time all parties were afforded a full opportunity to be represented, to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. The General Counsel and the Respondent filed timely post-hearing briefs which have been fully considered.

Based upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

The Department of Veterans Affairs (DVA), Veterans Administration Medical Center, Richmond, Virginia, is an agency within the meaning of 5 U.S.C. § 7103(a)(3). (G.C. Exs. 1(b) and (d))

The American Federation of Government Employees, AFL-CIO (AFGE) is a labor organization under 5 U.S.C. § 7103(a)(4) and is the exclusive representative of a unit of employees appropriate for collective bargaining that includes employees of the Respondent. (G.C. Exs. 1(b) and (d)) The Charging Party is an agent of AFGE for purposes of representing employees of the Respondent who are included in that bargaining unit. (G.C. Exs. 1 (b) and (d))

Request for Information

On April 15, 2005,251560479 bargaining unit employee Deneen Harris received a notice of proposed discharge, based on allegations that she failed to inform her outside employer, American Critical Care Services (ACCS), that she was restricted to working light duty because of an on-the-job injury and that she received income from ACCS for a period of time during which she was on leave without pay (LWOP) from the VAMC Richmond and receiving payments from the Department of Labor pursuant to a workers' compensation claim. (Tr. 17-18) Harris requested that Local 2145 President Jennifer Marshall assist her in responding to the proposal; Marshall granted the request. (Tr. 18-19)

On April 20, Marshall submitted two information requests under section 7114(b)(4) of the Statute. One request was addressed to the Director of the VAMC Richmond. On the same day, the VAMC Richmond provided Marshall with a copy of the evidence file that would be given to the official who would decide whether Harris would be discharged. (R. Ex. 3; Tr. 19-20, 86-87) The second request was addressed to the DVA Office of Inspector General (OIG). The OIG responded by informing Marshall that it did not process requests for information submitted under the Statute, but she could submit a request under the Freedom of Information Act (FOIA). (Tr. 22-23)

After reviewing the information the VAMC Richmond provided on April 20, Marshall concluded that the VAMC Richmond maintained more information that was relevant to the allegations made against Harris. (Tr. 20-21) One of the documents she was provided referred to payroll records. Another document stated the individual who recommended Harris' discharge based that recommendation, at least in part, on an OIG investigation. Neither the payroll records nor other documents obtained by the OIG were among the documents Marshall was provided on April 20. (Tr. 21)

Therefore, on April 25, Marshall submitted a request for additional information to the VAMC Richmond, under the provisions of section 7114(b)(4) of the Statute. The VAMC Richmond provided two documents to Marshall in response to that request. (Tr. 23) Francis Duvall, Employee Relations Specialist in Human Resources Management Services, agreed that she furnished Marshall two additional documents, a payroll record and a letter from Mary Sweet, on April 29, although not in response to a specific request for information. (R. Ex. 4; Tr. 88-90)

Also on April 25, Marshall submitted a request to the OIG for information under FOIA. (Tr. 21-22, 24).

On June 13, Harris received a letter from VAMC Richmond, dated June 8, informing her that she would be discharged effective June 24. (G.C. Ex. 2) On June 14, Marshall filed a third step grievance on behalf of Harris challenging her discharge on several grounds, including provisions of the parties' term contract dealing with equal employment opportunity, workers' compensation, and employee rights, as well as the statute dealing with whistle blowing. A third step grievance meeting was scheduled for June 23. (G.C. Ex. 3)

On June 20, Marshall submitted a third request for information under section 7114(b)(4) to the Director of the VAMC Richmond. (G.C. Ex. 4) The Charging Party acknowledged receipt of the evidence file in the Harris matter and stated that its review of the evidence file indicated that certain documents had not been furnished. The June 20 request for information referenced seven separate items, but only three items are at issue in this matter. Specifically, the complaint in this matter references the following three items:

a. A copy of any and all written correspondence received by DVA, including the Office of Inspector General, DVA from American Critical Care concerning bargaining unit employee, Deneen Harris;

  1. A copy of any and all records received by the DVA, including the Office of Inspector General, DVA from Critical Care concerning bargaining unit employee, Deneen Harris; and

  1. A copy of any and all correspondence, including e-mail transmissions from any and all Richmond DVAMC management officials to the Office of Inspector General, DVA concerning bargaining unit employees, Deneen Harris.

In her June 20 request, Marshall articulated reasons why the requested information was needed. She stated Local 2145 needed the information in order to prepare for the grievance meeting, and to advise Harris about any possible appeal rights, including rights under the negotiated grievance procedure. Marshall also stated that the information was needed in order to demonstrate that Harris was discharged because of her whistle blower activity and/or her "EEO protected activity". Finally, Marshall stated that the information would be "utilized in executing a privacy action violation grievance". (G.C. Ex. 4) The grievance meeting was held on June 27. (Tr. 29)

On June 23, Marshall received a package that had been shipped by the OIG via Federal Express on May 16 and was addressed to Marshall. (Tr. 29; R. Ex. 2) However, the package was delivered to Marshall through the VAMC Richmond internal mail system and she signed a VAMC Richmond log acknowledging receipt of the package. (Tr. 29-30) This is the process she had followed previously when packages were sent to her at the VAMC Richmond via Federal Express. (Tr. 30) The package was the OIG response to Marshall's April 25 information request submitted under FOIA. (Tr. 30) Some of the documents were sanitized in part, and some of the documents in the OIG file were not provided, based on exemptions under the FOIA. (Tr. 39, 57-58, 60-61)

On July 7, 2005, the Respondent, through Ruth November, Staff Attorney, responded to the Charging Party's June 20 request for information, as follows:

I am responding to your information request regarding Deneen Harris, the latest of which was made June 20, 2005.

Ms. Harris is no longer a federal employee. Therefore, your stated particularized need is moot.

(G.C. Ex. 5)

The grievance Local 2145 filed on behalf of Harris was not resolved under the parties' grievance procedure. Although Harris' discharge was withdrawn, Local 2145 has continued to pursue compensation issues, with an arbitration hearing scheduled for May 23, 2006. (Tr. 53-54, 68-69)

At the trial in this matter, it was determined that all of the information that Local 2145 requested under the Statute on June 20, 2005, was provided by the OIG under the FOIA (Tr. 83-84) The information provided by the OIG included documents that were not provided by the VAMC Richmond in response to Local 2145's April 20 request under the Statute. (Tr. 92-96; G.C. Ex. 6)

Issue

Whether or not the Respondent violated section 7116(a)(1)(5) and (8) of the Statute by failing and refusing to furnish the Charging Party with information that was requested on June 20, 2005, pursuant to section 7114(b)(4) of the Statute.

POSITIONS OF THE PARTIES

GENERAL COUNSEL

The General Counsel asserts that the information requested by the Charging Party in this matter meets the requirements of section 7114(b)(4). The Respondent admitted in its Answer that the information at issue is reasonably available, normally maintained by the VAMC Richmond in the regular course of business, is not prohibited from disclosure by law, and does not constitute advice or training provided to management officials or supervisors related to collective bargaining. (G.C. Exs. 1(b) and (d)) Further, the Charging Party has satisfied its "particularized need" burden by connecting the information requested to its representation of Harris in a grievance challenging management's decision to terminate her. Further, the Charging Party would use the information to advise the employee about potential remedial forums, including appeals procedures and procedures provided by the term agreement, should the grievance not be resolved. Both of these purposes fall within the wide range of a union's representational responsibilities. Federal Aviation Administration, Aviation Standards National Field Office, Mike Monroney Aeronautical Center, Oklahoma City, Oklahoma, 43 FLRA 1221, 1226 (1992); U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA 251 (1982); Federal Bureau of Prisons, South Central Region, Dallas, Texas and Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, Oklahoma, 55 FLRA 1250; Health Care Financing Administration, 56 FLRA 156, 160 (2000) (HCFA). Thus, Local 2145 explained in its request why it wanted the information and how it would use the information in fulfilling its representational responsibilities to the grievant.

The General Counsel further asserts that the Respondent failed to establish a countervailing anti-disclosure interest. The Respondent contends that it did not violate the Statute because the information sought by the Charging Party was provided by the OIG in response to the request for information submitted under the FOIA. The General Counsel asserts that this contention should be rejected for two reasons: First, the VAMC Richmond is essentially raising an anti-disclosure interest that was not raised before Respondent filed its Answer in this case. The Authority has held that an agency's interest in not disclosing information requested by a union must be raised at or around the time the union requests the information. See. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Forrest City, Arkansas, 57 FLRA 808, 812 (2002). Second, the information provided by the OIG was not provided under the Statute, but rather under the FOIA. The OIG had refused to respond to the Charging Party's initial request for information under the Statute, rather, insisting that the Charging Party file a request under the FOIA. A union should not be placed in the position of having to file a request under the FOIA for information to which the union is entitled under the Statute. Information to which a union is entitled under the Statute must be provided even if it is available from another source. U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 38 FLRA 3, 7 (1990). The General Counsel further argues that the Respondent should not be found to have satisfied its obligation to provide information under the Statute simply because the information was provided under FOIA. A union should not be required to wait until a trial involving a unfair labor practice charge to discover whether an agency provided under the FOIA all of the information that should have been provided under the Statute. Department of Justice v. FLRA, 144 F.3d 90 (D.C. Cir. 1998)

As a remedy, the General Counsel requests that a traditional notice, signed by the VAMC Richmond Director, be posted in all locations at the VAMC Richmond where notices to unit employees customarily are posted. Inasmuch as the Charging Party now has the information to which it was entitled, the General Counsel is not seeking as a remedy a requirement that the VAMC Richmond furnish any information to the Charging Party.

Respondent

The Respondent asserts that it did not violate the Statute since the Charging Party had all of the documents it would need for its stated purposes before it even filed the charge in this matter. While the Respondent admits that its letter in response to the June 20 request for information was not appropriate, it asserts that it was only a technical violation at best and to find a violation in this matter would not be correct. The Respondent further asserts that the Union President, in filing her unfair labor practice charge on July 8, 2005, was not truthful in stating that the agency never provided the requested information, when, in fact, all of the information had been provided prior to July 8. The Respondent concludes by arguing that finding a violation of the Statute under these circumstances rewards the conduct of the Charging Party and promotes injustice.

Analysis and Conclusion

Under section 7114(b)(4) of the Statute, an agency must furnish information to a union, upon request and "to the extent not prohibited by law", if that information is: (1) normally maintained by the agency; (2) reasonably available; (3) necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (4) not guidance, advice, counsel or training. Unions requesting information under section 7114(b)(4) of the Statute must establish a "particularized need" for the requested information that articulates and explains the union's interest(s) in the desired information with sufficient specificity to enable an agency to make a reasoned judgment as to whether the information must be disclosed under the Statute. IRS, Washington, D.C. and IRS, Kansas City Service Center, Kansas City, MO, 50 FLRA 661 (1995) (IRS Kansas City).

The Respondent does not dispute that the Union's request for information is normally maintained in the regular course of business; is reasonably available; and does not constitute guidance, advice, counsel or training for management officials or supervisors, relating to collective bargaining. (G.C. Exs. 1(b) and (d)). The Respondent denies that the requested information is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining, asserting in its answer that there is no need for the records since Harris is still on LWOP from her injury and the adverse action has been rescinded. (G.C. Exs. 1(b) and (d)). The Respondent admits that the requested information is not prohibited from disclosure by law. (G.C. Exs. 1(b) and (d)). Finally, the Respondent has not presented any argument that the Union has failed to establish a "particularized need" for the requested information. The Respondent has not, at any time, expressed any countervailing reasons why the requested information could not be disclosed.

I reject the Respondent's contention in its answer, which was not argued in its brief, that the requested information was not necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining, since the information was requested in the Charging Party's ongoing processing of the Harris grievance. Therefore, I find that the information requested by the Charging Party, in particular the three items outlined in paragraph 10 of the complaint, meets the criteria of section 7114(b)(4) of the Statute.

Further, I find that the Charging Party, in its June 20 request for information, established its "particularized need" for the requested information, noting that the information was needed to process the grievance on behalf of a bargaining unit employee, as well as to advise the employee about potential remedial forums. These purposes fall within the wide range of a union's representational responsibilities. See IRS Kansas City; HCFA; and United States Department of Justice, Federal Bureau of Prisons, Federal Detention Center, Houston, Texas, 60 FLRA 91 (2004).

The Respondent's only response to the Charging Party's June 20 request for information did not raise any legitimate reasons why the information could not be disclosed, but merely stated that since the employee was no longer a federal employee, the Union's particularized need is moot. As admitted by the Respondent, such a response is not appropriate under the Statute and does not adequately respond to a legitimate request for information under the Statute. In Bureau of Indian Affairs, Uintah & Ouray Area Office, Ft. Duchesne, Utah, 52 FLRA 629, fn.9 (1996), the Authority referenced Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Detroit District, Detroit, Michigan, 43 FLRA 1378 and n.* (1992), noting that the Authority had adopted the Judge's conclusion that "mootness" will not constitute a valid defense to finding a violation of the Statute for refusing to furnish requested information because whether a violation occurs must be evaluated by considering the facts at the time of the demand and the refusal. In this matter, at the time of the Respondent's July 7 response, the grievance was still being pursued by the Charging Party (with an arbitration on compensation issues scheduled for May 2006) and the adverse action had not been rescinded since the Respondent referred to Harris no longer being a federal employee. Therefore, the Respondent could not even legitimately argue that the issues before it were "moot".

While the Respondent admits to a technical violation of the Statute, it primarily defends its actions in this matter by attacking the behavior of the Union President. The record evidence shows that the Union President submitted three different requests for information to the VAMC Richmond. The first request was filed on April 20 and requested the evidence file in the termination case and the Respondent furnished the evidence file the same date. After reviewing the evidence file, the Charging Party requested other documents on April 25, and soon after, the Respondent furnished two additional documents to the Charging Party. Finally, on June 20, the Charging Party submitted a third request for information, in which it requested seven specific items, although only three of these items are at issue in this matter. The Charging Party noted that the third step grievance meeting on the Harris termination was scheduled for June 23. Contrary to the Respondent's arguments, the three information requests, although all relating to the termination grievance, did not ask for the same information, but rather the last two requests related to additional information that the Charging Party believed it had not been furnished.

The Respondent argues that the Charging Party had all of the information that it had requested, from whatever source, prior to the unfair labor practice charge being filed. It asserts that Marshall was not truthful when she stated in the ULP charge that "To this date, the Agency never provided the requested information." The Respondent continues to point to the information that the Charging Party received pursuant to its request for information to OIG under FOIA. However, the Respondent misses the point that the Charging Party's charge in this matter is related to its June 20 request to the VAMC Richmond for information under section 7114(b)(4) of the Statute. Marshall credibly testified that she was referring to information received under the Statute in her ULP charge and that her charge related to the June 20 request and the Respondent's July 7 response.753662409

As stated above, I find that the Charging Party's request for information dated June 20, 2005, met the criteria set forth in section 7114(b)(4) of the Statute. Further, the Charging Party clearly articulated its particularized need for the requested information and the Respondent failed to present any countervailing anti-disclosure interest. The Respondent's July 7 response, in which it indicated that the Charging Party's request for information was "moot", failed to properly respond to a request for information under the Statute and it's conduct was, therefore, a violation of the Statute.927948545

In conclusion, based on the evidence as a whole, I find that the Respondent refused to furnish information requested by the Charging Party pursuant to section 7114(b)(4), in violation of section 7116(a)(1)(5) and (8). It is therefore recommended that the Authority adopt the following Order:

ORDER

Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Veterans Affairs, Veterans Affairs Medical Center, Richmond, Virginia, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the American Federation of Government Employees, Local 2145, AFL-CIO, with information to which it is entitled by the Federal Service Labor-Management Relations Statute.

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

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

(a) Post wherever bargaining unit employees employed by the Department of Veterans Affairs, Veterans Affairs Medical Center, Richmond, Virginia, represented by the American Federation of Government Employees, Local 2145, AFL-CIO 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 Director of the Veterans Affairs Medical Center, Richmond, Virginia, and they 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.

(b) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Washington Region, Federal Labor Relations

Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Dated at Washington, D.C., July 7, 2006.

________________________

SUSAN E. JELEN

Administrative Law Judge


NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of Veterans Affairs, Veterans Affairs Medical Center, Richmond, Virginia, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, Local 2145, AFL-CIO, the exclusive representative of a unit of our employees, with information to which it is entitled by the Federal Service Labor-Management Relations Statute.

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 Statute.

WE WILL furnish the American Federation of Government Employees, Local 2145, AFL-CIO, the exclusive representative of a unit of our employees, with information to which it is entitled by the Federal Service Labor-Management Relations Statute.

(Activity)

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, Washington Regional Office, Federal Labor Relations Authority, whose address is: 1400 K Street, NW, 2nd Floor, Washington, DC 20424-0001, and whose telephone number is: 202-357-6029.

CERTIFICATE OF SERVICE

I hereby certify that copies of the DECISION issued

by SUSAN E. JELEN, Administrative Law Judge, in Case No.

WA-CA-05-0453, were sent to the following parties:

_______________________________

CERTIFIED MAIL & RETURN RECEIPT CERTIFIED NOS:

Thomas E. Bianco, Esquire 7004 2510 0004 2351 1726

Office of the General Counsel

Federal Labor Relations Authority

1400 K Street, NW

2nd Floor

Washington, DC 20424

Ruth November, Esquire 7004 2510 0004 2351 1733

Pete Jungen

Department of Veterans's Affairs

Medical Center

1201 Broad Rock Boulevard

Richmond, Virginia 23249

Jennifer Marshall, President 7004 2510 0004 2351 1740

AFGE Local 2145

1201 Broad Rock Blvd.

Richmond, VA 23249

REGULAR MAIL:

President

AFGE

80 F Street, NW

Washington, DC 20001

Dated: July 7, 2006

Washington, DC

251560479

All dates are in 2005, unless otherwise specified.

753662409

The parties are in agreement that the Charging Party did receive certain information from the OIG in response to a FOIA request filed on April 25. The Charging Party had initially filed a request for information with OIG pursuant to section 7114(b)(4) of the Statute, which the OIG refused to process and required any requests for information to be filed under FOIA. The conduct of OIG is not an issue before me in this matter. Although the cover letter from OIG was dated May 16, Marshall credibly testified that she did not actually receive that information until June 23.