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48 FLRA No. 93

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

(48 FLRA 424 (1993))

_____

ORDER DENYING MOTION FOR RECONSIDERATION

November 15, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on the Respondent's motion for reconsideration of our decision in 48 FLRA 424 (1993). The General Counsel filed a response to the Respondent's motion.

For the following reasons, we conclude that the Respondent has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the Respondent's motion for reconsideration.

II. The Decision in 48 FLRA 424

In 48 FLRA 424, the Authority resolved unfair labor practice complaints in Cases Nos. BY-CA-20054 and BY-CA-20056. The Respondent requests that we reconsider only Case No. BY-CA-20054.

In Case No. BY-CA-20054, the Administrative Law Judge found that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to reply timely to the Union's information request under section 7114(b)(4) of the Statute and by failing to supply the "Chilean grape" file to the Union. 48 FLRA at 426. The Respondent excepted only to the Judge's conclusion that the file was normally maintained by the Respondent in the regular course of business within the meaning of section 7114(b)(4) of the Statute.

The Authority concluded in 48 FLRA 424 that in view of the Respondent's admission in its answer to the complaint in Case No. BY-CA-20054 that the file was normally maintained by the Respondent in the regular course of business, the Respondent was not permitted to raise that argument to the Authority. The Authority found that the record established 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. Citing 5 C.F.R. § 2423.13(d), the Authority concluded that in these circumstances, it would not permit the Respondent to argue before the Authority that the file was not normally maintained by the Respondent in the regular course of business.

As no other exceptions were filed to the Judge's conclusions in Case No. BY-CA-20054, the Authority found 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 file to the Union.

III. Respondent's Motion for Reconsideration

The Respondent contends that the Authority's decision in Case No. BY-CA-20054 was "based on an arbitrary and capricious application of practice and procedure . . . ." Motion at 1.

The Respondent argues that the Authority improperly precluded the Respondent from raising the issue of whether the file was normally maintained within the meaning of section 7114(b)(4) of the Statute. The Respondent asserts that in precluding the Respondent from raising this issue, the Authority "ignore[d] the fact" that the General Counsel, not the Respondent, "introduced, without rebuttal," evidence that the file was not normally maintained in the regular course of business. Id. In this regard, the Respondent argues that testimony of supervisor Shirley Isbill raising this issue was elicited by the General Counsel on cross-examination. The Respondent cites to specific portions of the transcript where Isbill testified that the file "was not an official file[,]" was "not the type of file that people usually . . . keep[,]" and was "the only file of its type that [he] ha[d] ever seen[] in [his] career." Id., Exhibit 1 at 98, 99, 100. Further, the Respondent claims that because the General Counsel "developed th[is] fortuitous information[,]" the issue "was tried by express or implied consent of the parties" under Rule 15(b) of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 15(b)). Id. at 3.

The Respondent also contends that the General Counsel was not disadvantaged by the Respondent's "subsequent abandonment of its initial theory of the case and articulation of an alternate argument" and that, under Fed. R. Civ. P. 8(e)(2), "an explanation of inconsistent alternative arguments is not required." Id. at 2.

The Respondent further argues that because the Authority's Rules and Regulations "permit the answer to be amended under various conditions prior to the hearing, during the hearing and even subsequent to the hearing[,]" counsel for the General Counsel "was no worse off in this case than he would have been" had "the Respondent exercised its right to amend its pleading just prior to the hearing, or after it . . . ." Id. at 2, 3-4. Further, the Respondent asserts that its post-hearing brief "should have been considered as [an] amended pleading" pursuant to Fed. R. Civ. P. 8(e)(1). Id. at 3. In the alternative, the Respondent argues that any error it committed in raising this issue does not affect the substantial rights of the parties and, therefore, should be considered harmless error pursuant to Fed. R. Civ. P. 61.

Finally, the Respondent contends that the Authority's decision in Case No. BY-CA-20054 "has substantially impaired the Respondent's rights . . . ." Id. at 1. Citing Berger v. United States, 295 U.S. 78 (1935) (Berger), the Respondent maintains that "it is the Respondent . . . who is to be particularly protected from surprise" in proceedings against the Federal Government "and not the prosecutor" or, in this case, the General Counsel. Id. at 5.

IV. General Counsel's Response

The General Counsel contends that the Respondent has not established extraordinary circumstances warranting reconsideration of the Authority's decision. The General Counsel argues that "the cross-examination relied upon by the Respondent does not remotely support the arguments in its motion." Response at 2. The General Counsel asserts that the issue being pursued through its cross-examination of Isbill was the necessity of the requested information and that the testimony relied on by the Respondent "goes directly to the question of whether the information requested by the Union was necessary." Id. According to the General Counsel, the testimony "ha[d] nothing to do with the Respondent's maintenance of the Chilean grape file[,]" as "[t]hat fact was already established" by the Respondent's admission. Id. The General Counsel argues that if the Respondent viewed that testimony as raising the issue of whether the file was normally maintained within the meaning of section 7114(b)(4) of the Statute, "it is incredible that [the Respondent's] representative never followed up [on this issue] at hearing . . . ." Id. (citation to transcript omitted).

V. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. For the following reasons, we conclude that the Respondent has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 48 FLRA 424.

The Respondent argues that the Authority should have considered its contention that the file was not normally maintained within the meaning of section 7114(b)(4) of the Statute because the General Counsel, not the Respondent, elicited testimony from Isbill which supported that contention. We find that the Respondent's argument presents no basis for reconsideration. Even assuming that Isbill's statements noted by the Respondent were true, the statements do not raise the claim, much less demonstrate, that the file was not normally maintained within the meaning of section 7114(b)(4) of the Statute. Therefore, the Respondent's argument does not establish extraordinary circumstances warranting reconsideration of this decision.

The Respondent further argues that its contention that the file was not normally maintained within the meaning of section 7114(b)(4) of the Statute should be heard consistent with one of the following theories: (1) the issue was tried by express or implied consent of the parties pursuant to Fed. R. Civ. P. 15(b); (2) the contention was an alternative argument pursuant to Fed. R. Civ. P. 8(e)(2) and as such, no explanation of that alternative argument was required; (3) the contention should have been considered as an amended pleading pursuant to Fed. R. Civ. P. 8(e)(1); or (4) any error that the Respondent committed in raising the contention should be considered harmless error pursuant to Fed. R. Civ. P. 61. The Federal Rules of Civil Procedure "were designed to govern the procedure in the United States district courts and do not purport to be applicable in administrative proceedings." American Federation of Government Employees, AFL-CIO, Local 3615 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 44 FLRA 806, 816 (1992). See 2 James W. Moore et al., Moore's Federal Practice, 1.03[1] (2d ed. 1991). See also 5 C.F.R. § 2423.17 ("The parties shall not be bound by the rules of evidence, whether statutory, common law, or adopted by court."). Accordingly, the Respondent's reliance on theories arising out of the Federal Rules of Civil Procedure is misplaced and does not establish extraordinary circumstances warranting reconsideration of this decision.

The Respondent also argues that the Authority should have heard its contention that the file was not normally maintained within the meaning of section 7114(b)(4) of the Statute because counsel for the General Counsel "was no worse off in this case than he would have been" had "the Respondent exercised its right to amend its pleading just prior to the hearing, or after it . . . ." Motion at 2, 3-4. Pursuant to section 2423.13(d) of the Authority's Rules and Regulations, a respondent has a right to amend the answer either prior to the hearing or where the complaint has been amended.^(*) In all other situations, a respondent may amend the answer only at the discretion of the Administrative Law Judge or the Authority. The Authority found in Case No. BY-CA-20054 that the Respondent had the opportunity to amend the admission in its answer that the file was normally maintained within the meaning of section 7114(b)(4) of the Statute but chose not to and that the Respondent never raised the issue at the hearing. The Authority also found that the General Counsel relied on the Respondent's admission. We find that the Respondent's argument merely constitutes disagreement with our determination not to consider a contention raised by the Respondent for the first time after the hearing. Such disagreement does not establish extraordinary circumstances warranting reconsideration of this decision. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California and American Federation of Government Employees, Local 1857, 48 FLRA 543, 545 (1993) (no extraordinary circumstances found where request for reconsideration constituted mere disagreement with the Authority's conclusions).

Finally, we note the Respondent's argument that reconsideration is warranted based on the decision of the Supreme Court in Berger. We reject the Respondent's argument because Berger concerned procedural rules involved in the Federal Government's prosecution of a criminal trial and such rules do not apply in this case.

Accordingly, for the foregoing reasons, we conclude that the Respondent has not established extraordinary circumstances within the meaning of section 2429.17 of the Authority's Rules and Regulations to warrant reconsideration of our decision in 48 FLRA 424.

VI. Order

The Respondent's motion for reconsideration of the Authority's Decision and Order in 48 FLRA 424 is denied.

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

*/ Section 2423.13(d) of the Authority's Rules and Regulations provides:

The answer may be amended by the respondent at any time prior to the hearing. During the hearing or subsequent thereto, the answer may be amended in any case where the complaint has been amended, within such period as may be fixed by the Administrative Law Judge or the Authority. Whether or not the complaint has been amended, the answer may, in the discretion of the Administrative Law Judge or the Authority, upon motion, be amended upon such terms and within such periods as may be fixed by the Administrative Law Judge or the Authority.

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