National Association of Air Traffic Specialists, Macon AFSS, Macon, Georgia (Respondent) and Jennifer R. Lewis, an Individual (Charging Party)

[ v59 p261 ]

59 FLRA No. 40

NATIONAL ASSOCIATION
OF AIR TRAFFIC SPECIALISTS
MACON AFSS, MACON, GEORGIA
(Respondent)

and

JENNIFER R. LEWIS
AN INDIVIDUAL
(Charging Party)

AT-CO-02-0251

_____

DECISION AND ORDER

September 29, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

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 (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the exceptions.

      The complaint alleges that by failing to poll all bargaining unit members in determining a watch schedule, the Respondent violated its duty of fair representation set forth in § 7114(a)(1), and thereby violated § 7116(b)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute). The Judge granted the GC's motion for summary judgment.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.

      The complaint alleges that: (1) the Charging Party was a bargaining unit employee who was not a dues-paying member of the Respondent; (2) the Respondent's Facility Representative acted on behalf of the Respondent; (3) in determining the watch schedule for the year, the Facility Representative did not poll all of the bargaining unit employees at the Macon, Georgia location; and (4) by failing to poll all of the bargaining unit employees at that location, the Respondent violated its duty of fair representation set forth in 5 U.S.C. § 7114(a)(1) and thereby committed an unfair labor practice in violation of 5 U.S.C. § 7116(b)(1) and (8).

      Section 7114(a)(1) of the Statute states, in relevant part, that "[a]n exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." Accordingly, it is apparent that the complaint alleges that: (1) as part of its duty of fair representation, the Respondent had a duty to poll all of the bargaining unit employees at the Macon location in order to determine the watch schedule for the year; and (2) the Respondent violated its duty of fair representation by discriminating among unit employees based on whether or not they were union members, as demonstrated by its failure to poll a unit employee (the Charging Party) who was not a dues-paying member of the Respondent.

      The Respondent did not file an answer to the complaint within the time prescribed by § 2423.20(b) of the Authority's Regulations. Following the Respondent's failure to file an answer, the GC filed a motion for summary judgment. In its motion, the GC argued that, in order to be subject to the duty of fair representation under § 7114(a)(1) of the Statute, the disputed action must concern a matter within the discretion accorded the union as the exclusive representative of the bargaining unit. GC Motion at 3-4 (citing United States Air Force, Loring AFB, Limestone, Me., 43 FLRA 1087, 1094 (1992)). Further, the GC asserted that if the union undertakes the disputed action pursuant to a collective bargaining agreement, then the matter concerns the union's role as exclusive representative and the union must observe the duty of fair representation. Id. at 4 (citing NFFE, Local 1827, 49 FLRA 738, 747-48 (1994)) and Antilles Consolidated Education Association, (OEA/NEA), San Juan, P.R., 36 FLRA 776, 790 (1990). The GC contended that, by virtue of the Respondent's authority over local watch schedules under the collective bargaining agreement, the Respondent acted within its role as the exclusive representative of the bargaining unit when formulating the watch schedules and polling the unit members. Therefore, according to the GC, the Respondent had a duty under § 7114(a)(1) of the Statute to poll all bargaining unit members, regardless of union membership status, concerning the watch schedules, and that by failing to do so, the Respondent violated § 7114(a)(1).

      The GC argued that, under § 2423.27 of the Authority's Regulations, it was entitled to judgment as a matter of law because the Respondent admitted to each material fact and legal conclusion by failing to answer the complaint. [n2] As part of its motion for summary judgment, the GC attached a copy of the charge, the complaint, and the text of the relevant provision of the parties' collective bargaining agreement. [ v59 p262 ]

      The Facility Representative, on behalf of the Respondent, filed a response to the GC's motion for summary judgment. In its response, the Respondent "requested permission to file its answer, which it attached to its response . . . ." Judge's Decision at 2. The Judge found that "[t]he answer, which is in narrative form, does not respond to each allegation in the [c]omplaint[.]" Id. Rather, in explaining its position that it did not commit an unfair labor practice, the Respondent asserted that "polling was concluded when a majority of responses were in support of one proposed watch schedule . . . . [The Respondent's] reasoning [was] that further polling would be futile and unnecessary." Response to Motion for Summary Judgment at 2.

      The Judge noted that "[a]bsent a showing of good cause to the contrary, [a respondent's] failure to file an answer or respond to any allegation [in the complaint] shall constitute an admission." Judge's Decision at 2 (citing 5 C.F.R. § 2423.20(b)). The Judge found that it was "undisputed" that the Respondent's answer was not timely filed, and, therefore, that the issue was whether the Respondent had shown "good cause" under § 2423.20(b) "for its late submission." Id. at 3. The Judge determined that the Respondent had not shown good cause for its failure to file a timely answer and that, under § 2423.20(b), "this failure constitutes an admission of each of the allegations of the [c]omplaint." Id. at 3-4.

      The Judge then concluded:

The poll of employees was undertaken by the Respondent in its role as exclusive representative of unit employees, as it was part of the union's role in developing the basic watch schedule for employees at the Macon facility, a role that arose directly from the collective bargaining agreement. Therefore, the Respondent was required to carry out this function without regard to union membership. National Federation of Federal Employees, Local 1827, 49 FLRA 738, 746-48 (1994). By excluding the Charging Party from the poll, the Respondent has violated section 7116(b)(1) and (8) of the Statute.

Judge's Decision at 5. Accordingly, based on the record before him, the Judge found that the GC had established that summary judgment was warranted under the Authority's Regulations.

      In its exceptions, the Respondent reiterates its claim, contained in its untimely answer that was included as part of the response to the motion for summary judgment, that the reason it did not poll all bargaining unit employees was that it had already received a majority in support of one schedule. However, the Judge found, and we agree, that the Respondent did not establish good cause for considering the claim. Therefore, the Judge correctly concluded that the Respondent had not raised a genuine issue of material fact.

      Moreover, even if good cause had been established so as to have allowed the Judge's consideration of the claim, the claim would not establish that the Judge erred in granting summary judgment. Under the Authority's Regulations, responses to motions for summary judgment "may not rest upon mere allegations or denials but must show, by documents affidavits, applicable precedent, or other appropriate materials, that there is a genuine issue to be determined at the hearing." 5 C.F.R. § 2423.27(b). The Respondent's response did not contain any "documents, affidavits, applicable precedent, or other appropriate materials" in support of its claim, and therefore the claim was a "mere allegation[]" that did not show that there was a genuine issue to be determined at the hearing. Accordingly, the Respondent's claim, reiterated in its exceptions, does not demonstrate that the Judge erred in granting summary judgment.

      Further, the exceptions, which were filed by private counsel on behalf of the Respondent, also contain new claims which were not previously presented at any time to the Judge. Specifically, the Respondent now asserts for the first time that: (1) under its interpretation of the collective bargaining agreement, it was not entitled to unilaterally determine the watch schedule because watch schedules are to be jointly negotiated at the local level; (2) under Authority precedent, the Respondent's representative was entitled to exclude the Charging Party from his informal advisory poll to determine the Respondent's negotiating position, even if the representative's reason for excluding the Charging Party was that she was not a Union member; and (3) the Respondent's representative polled Union members as well as non-members.

      These claims are barred from our consideration by § 2429.5 of our Regulations. Section 2429.5 provides, in relevant part, that the Authority will not consider any issue which was not presented in the proceedings before the Judge. As these claims were not presented to the Judge and have been raised for the first time in the Respondent's exceptions, they are not properly before us and we do not address their merits. See United States Dep't of HUD, Kentucky State Office, Louisville, Ky., 58 FLRA 73, 73 (2002) (§ 2429.5 barred Authority's consideration of respondent's claims in its exceptions because those claims were raised for the first time in its exceptions).

      Accordingly, the Respondent's exceptions provide no basis for finding that the Judge erred in granting summary judgment. Therefore, we find that the Judge [ v59 p263 ] properly granted summary judgment in favor of the GC based on the record before him.

II.     Order

      Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the National Association of Air Traffic Specialists, Macon AFSS, Macon, Georgia, shall:

      1.     Cease and desist from:

           (a) Denying unit employees who are employed in the Macon Automated Flight Service Station, Middle Georgia Regional Airport, Macon, Georgia (Macon AFSS), and who are not members of the National Association of Air Traffic Specialists (the Union), the opportunity to participate in a poll concerning the adoption of the watch schedules for the year.

           (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) In the event the Respondent conducts a poll among unit employees of the Macon AFSS concerning yearly watch schedules, the Respondent will grant to all unit employees the opportunity to participate in the poll.

           (b) Post at its business offices, and in all places where notices to bargaining unit employees in the Macon AFSS are customarily posted, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the President of the National Association of Air Traffic Specialists, Macon AFSS, Macon, Georgia, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to bargaining unit employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

           (c) Submit appropriate signed copies of the Notice to the Chief of the Macon AFSS for posting in conspicuous places where unit employees represented by the Respondent are located. Copies of the Notice should be maintained for a period of 60 days from the date of the posting.

           (d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Atlanta Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply. 


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the National Association of Air Traffic Specialists, Macon AFSS, Macon, Georgia, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT discriminate against the bargaining unit employees who are not members of the National Association of Air Traffic Specialists, Macon AFSS, by denying them the opportunity to participate in a poll concerning the watch schedule for the year.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL grant to all unit employees in the Macon Automated Flight Service Station, Middle Georgia Regional Airport, Macon, Georgia, the opportunity to participate in a poll concerning the selection of the watch schedule for the year, in the event that such a poll is conducted.

      ________________________
(Labor Organization)

Dated:_______________By:_____________________

                           (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, whose address is: Marquis Two Tower, Suite 701, 285 Peachtree Center Avenue, Atlanta, Georgia 30303-1270, and whose telephone number is: (404) 331-5212.


File 1: Authority's Decision in 59 FLRA No. 40
File 2: Opinion of Member Pope and ALJ's Decision


Footnote # 1 for 59 FLRA No. 40 - Authority's Decision

   Member Pope's opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 40 - Authority's Decision

   Under § 2423.27 of the Authority's Regulations, a motion for summary judgment must "demonstrate that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law[,]" and must "be supported by documents, affidavits, applicable precedent, or other appropriate materials."

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