File 2: Opinion of Member Armendariz

[ v58 p665 ]


Opinion of Member Armendariz, concurring in part and dissenting in part

      I agree with my colleagues' resolution of this case in all respects but the following. With respect to the Respondent Western Region, I agree with its exception asserting that the complaint was not issued in accordance with the FLRA's Regulations. In my view, this failure to comply with the Regulations deprived the Western Region of its rights to due process.

      It is undisputed that the initial charge did not name and was not served on the Western Region. Moreover, it is undisputed that the General Counsel issued the complaint against the Western Region on the same day that the charging party amended the charge to include the Western Region as a charged party for the first time. At the hearing before the Judge, the Western Region contended that its ability to defend itself in these circumstances was "prejudice[d]," and that without the charges being served on the Western Region, "there is no way it can be held responsible for an unfair labor practice." Transcript at 65. The Judge "agree[d]," and stated that "everything we've got is premised on the idea that the General Counsel is at some point going to show that an unfair labor practice charge was made against the Western Regional Office and the Western Region did receive service. Now, when it received that service may go to the ability of the Western Region to defend itself." Id. at 65-66.

      In his decision, the Judge r