49:0033(7)CA - - EPA, Enviromental Research Laboratory, Narragansett, RI and NAGE, Local R1-240 - - 1994 FLRAdec CA - - v49 p33

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[ v49 p33 ]
49:0033(7)CA
The decision of the Authority follows:


49 FLRA No. 7

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. ENVIRONMENTAL PROTECTION AGENCY

ENVIRONMENTAL RESEARCH LABORATORY

NARRAGANSETT, RHODE ISLAND

(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-240

(Charging Party)

BN-CA-21045

BN-CA-21415

_____

DECISION AND ORDER

February 4, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.

The consolidated complaint alleges that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by counselling, admonishing and disciplining employees who engaged in lawful activity on behalf of an exclusive representative and by soliciting or encouraging employees to decertify the Charging Party as the exclusive representative of certain employees. The Respondent did not file an answer to the complaint.

The General Counsel filed a Motion for Summary Judgment based on Respondent's failure to answer the complaint. The Motion was referred to the Chief Administrative Law Judge, who issued an Order granting all parties an opportunity to file briefs regarding the Motion. When the Respondent failed to respond to the Order, the Judge granted the General Counsel's Motion.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II. Background

On January 12, 1993, the Regional Director of the Boston Regional Office of the Federal Labor Relations Authority issued a consolidated complaint and Notice of Hearing to the Respondent. The Respondent failed to file an answer to the complaint during the time period set forth in section 2423.13 of the Authority's Rules and Regulations and did not respond to the complaint thereafter.

Subsequently, on July 13, 1993, Counsel for the General Counsel moved for summary judgment based on the Respondent's failure to file an answer to the consolidated complaint. The Regional Director referred the motion to the Chief Administrative Law Judge, in accordance with section 2423.22(b) of the Authority's Rules and Regulations. Thereafter, the Chief Judge issued an Order granting all parties an opportunity until July 30, 1993, to file briefs regarding the motion. In response to the Order, Counsel for the General Counsel filed a timely brief with the Chief Judge. Respondent did not file any response with the Chief Judge, but, instead, on July 29, 1993, mailed its response to the Boston Regional Director. The Boston Regional Office did not forward the response to the Chief Judge.

The Judge found that, as he had received no reply from the Respondent to the Chief Judge's Order, the Respondent had not shown good cause for its failure to answer the complaint. The Judge concluded that the undenied allegations of the consolidated complaint constituted admissions of fact which established violations of the Statute. Consequently, the Judge found that the Respondent had committed the alleged unfair labor practices. Accordingly, the Judge granted the General Counsel's Motion for Summary Judgment and recommended that the Respondent be ordered to take appropriate remedial action.

III. Positions of the Parties

The Respondent claims that it complied with the Chief Judge's Order by filing its "answer to the complaint" with the Boston Regional Office. Exceptions at 2. The Respondent further argues that the Boston Regional Office should have forwarded its submission to the Office of the Administrative Law Judges in Washington, D.C.

The General Counsel states that the Respondent was required to file its response to the Chief Administrative Law Judge's Order with the Chief Administrative Law Judge. The General Counsel maintains that the Boston Regional Office was under no obligation to forward, and was not aware that it was expected to forward, Respondent's response to the Chief Judge. The General Counsel also argues that, even if Respondent's submission were considered an "answer to the complaint" rather than a response to the Motion, a copy of the answer should have been served on the Chief Administrative Law Judge, as required by section 2423.13(a) of the Authority's Rules and Regulations.

IV. Analysis and Conclusions

Section 2429.24(d) of the Authority's Rules and Regulations states that "[a] document submitted to an Administrative Law Judge pursuant to this subchapter shall be filed with the appropriate Administrative Law Judge, as set forth in the Appendix." Appendix A(d) provides the complete address and telephone number of the Office of the Chief Administrative Law Judge.

In this case, the Chief Judge's Order plainly stated that the Chief Judge had jurisdiction over the Motion for Summary Judgment and clearly indicated the address of the Chief Judge. Consequently, we reject the Resp