29:0482(48)CA - Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, NY and AFGE Local 3148 -- 1987 FLRAdec CA



[ v29 p482 ]
29:0482(48)CA
The decision of the Authority follows:


29 FLRA No. 48

UNITED STATES DEPARTMENT OF
JUSTICE, BUREAU OF PRISONS,
METROPOLITAN CORRECTIONAL
CENTER, NEW YORK, NEW YORK

              Respondent

         and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3148

              Charging Party

Case No. 2-CA-60082
(27 FLRA No. 97)

DECISION ON RECONSIDERATION

I. Statement of the Case

This matter is before the Authority on motions filed by the Respondent (1) seeking reconsideration of our decision of June 29, 1987 in 27 FLRA No. 97, and (2) requesting waiver of the time limit established by section 2429.17 of our Regulations for filing a motion for reconsideration. For the reasons set forth below, we grant the motions and, on consideration of the record as a whole, we reaffirm our Decision and Order in this matter.

II. Background

In our decision of June 29, 1987, we found that the Respondent violated section 7116(a)(1), (2) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) when it (1) denied an employee's request for union representation under section 7114(a)(2)(B) of the Statute at an examination in connection with an investigation, and (2) proposed to suspend and then suspended the employee for refusing to take part in the examination. We also found that the Respondent did not violate section 7116(a)(1) of the Statute by stating to the employee that he would be disciplined because he had refused to participate in the examination. As a remedy to the sustained [PAGE] violations, we ordered the Respondent to rescind the employee's suspension; to reimburse him for the pay he had lost as a result of it; and to expunge any reference to the suspension from his personnel records. With respect to the charge against the employee of providing false statements, we noted that if the Respondent decided that disciplinary action is warranted against the employee for this conduct, the Respondent must institute a new proceeding in which no consideration is given to the employee's conduct at the meeting which resulted in the unfair labor practices.

Our decision in 27 FLRA No. 97 stated that the Respondent's cross-exceptions were untimely filed and therefore were not considered. That determination was based on the belief that the brief containing the Respondent's cross-exceptions and opposition to the Union's exceptions had been filed with the Authority after the due date. The Respondent, in its motions now before us, has demonstrated that its brief was filed timely.

Accordingly, we find pursuant to sections