48:1400(148)CA - - VA, Washington, DC & NAGE, Local R1-109 - - 1994 FLRAdec CA - - v48 p1400



[ v48 p1400 ]
48:1400(148)CA
The decision of the Authority follows:


48 FLRA No. 148

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, D.C.

(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109, SEIU, AFL-CIO

(Charging Party/Union)

BN-CA-20450

(48 FLRA 991 (1993))

_____

DECISION AND ORDER ON MOTION FOR RECONSIDERATION

January 24, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Respondent's motion for reconsideration of our decision in 48 FLRA 991 (1993). No opposition has been filed to the Respondent's motion.

For the reasons discussed below we grant the Respondent's motion. On reconsideration, we reaffirm the Order contained in 48 FLRA 991.

II. The Decision in 48 FLRA 991

This case was before the Authority on the General Counsel's exception to a portion of the Judge's recommended remedy. The Judge had concluded that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to provide the Union with copies of final decision letters sent to unit employees concerning their Equal Employment Opportunity (EEO) complaints when the Union was the employees' designated representative for the EEO proceedings. The General Counsel excepted to the portion of the Judge's recommended Order requiring that the Director of the Respondent's Medical Center, rather than Respondent's General Counsel, sign the remedial notice.

In response to the General Counsel's exception, we concluded that the Respondent's agents in its Office of the General Counsel were responsible for the violations and that, therefore, the purposes of the Statute would best be served by requiring the General Counsel, the head of that office, to sign the remedial notice. Accordingly, we modified the Judge's recommended Order to require that the General Counsel sign the notice. In that decision, we noted that the Respondent had filed neither exceptions to the Judge's decision nor an opposition to the General Counsel's exception.

III. Respondent's Motion for Reconsideration

The Respondent asserts that, pursuant to section 2429.17 of the Authority's Rules and Regulations, there are extraordinary circumstances warranting reconsideration of the Authority's decision in 48 FLRA 991. In this regard, the Respondent claims that, contrary to the Authority's statement in its decision, the Respondent did file a timely opposition to the General Counsel's exception and that the Authority erred in not considering the Agency's filing.

IV. Analysis and Conclusion

The Respondent correctly states that it filed a timely opposition to the General Counsel's exception and that the Authority failed to consider that opposition. We agree with the Respondent that this inadvertent error establishes extraordinary circumstances warranting reconsideration of our prior decision.

Having reviewed the Respondent's opposition, however, we remain convinced that the Respondent's General Counsel should sign the remedial notice.

In its opposition, the Respondent admits that it failed, albeit unintentionally, to send two documents to the Union representative. It states, however, that "no purpose would be served by requiring the Respondent's General Counsel to sign the required notice" because the General Counsel was not involved in the matter. Opposition at 3. Rather, the Respondent claims that the violations "occurred at the staff level involving personnel under the direct supervision of . . . the Assistant General Counsel . . . ." Id. The Respondent contends that the appropriate official to sign the notice is the Assistant General Counsel, "who has supervisory authority over the personnel who committed the errors complained of in this case and who has taken steps to assure that those errors do not occur again." Id. at 4. The Respondent acknowledges Authority cases requiring the signature of the highest ranking management official in an office charged with an unfair labor practice, but states that in those cases, unlike here, there was no basis on which to conclude that the notice should be signed by some other official.

As we stated in our previous decision in this case, the Authority has long held that "the remedial purposes of a notice are best served by requiring the head of the activity responsible for the violation to sign the notice." 48 FLRA at 992 (quoting Department of Health and Human Services, Regional Personnel Office, Seattle, Washington, 48 FLRA 410, 411 (1993). The Authority has stated that by requiring the highest official to sign the notice, a respondent "signif[ies] that the Respondent acknowledges its obligations under the Statute and intends to comply with those obligations." Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 217, 220 (1990) (McClellan Air Force Base).

The Respondent admits that a violation was committed by its Office of the General Counsel, but claims that because the General Counsel was not involved in that violation, there is no reason to require that the General Counsel sign the remedial notice. We do not find this argument persuasive. Rather, as we concluded in McClellan Air Force Base, a meaningful remedy requires that the highest official in the activity responsible for the violation sign the notice and thereby evidence to the employees that the Respondent fully acknowledges its obligations under the Statute and its intent to comply with those obligations. Accordingly, we see no reason to modify the Order in 48 FLRA 991, which requires the General Counsel to sign the remedial notice.

V. 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 U.S. Department of Veterans Affairs, Washington, D.C., shall:

    1. Cease and desist from:

        (a) Bypassing the National Association of Government Employees, Local R1-109, SEIU, AFL-CIO, the exclusive representative of its employees, when designated as the representative of its employees in Equal Employment Opportunity (EEO) matters, sending its decisions on EEO complaints only to employees, and failing to furnish the same to the Union when it was designated as the employees' representative.

        (b) In any like or related manner interfering with restraining, or coercing its 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) Furnish or deliver all communications pertaining to EEO complaints to designated Union representatives at the same time as they are furnished or delivered to employee complainants.

        (b) Post at its Medical Center in Newington, Connecticut, where bargaining unit employees represented by the National Association of Government Employees, Local R1-109, SEIU, AFL-CIO are located, copies of the