File 2: ALJ's Decision
[ v60 p995 ]
Office of Administrative Law Judges
U.S. DEPARTMENT OF HOMELAND SECURITY
BORDER AND TRANSPORTATION SECURITY
DIRECTORATE BUREAU OF IMMIGRATION
AND CUSTOMS ENFORCEMENT
OF GOVERNMENT EMPLOYEES
Case No. BN-CA-04-0463
Gerald M. Greene
For the General Counsel
For the Respondent
For the Charging Party
Before: PAUL B. LANG
Administrative Law Judge
DECISION ON MOTION FOR
Statement of the Case
On July 6, 2004, the American Federation of Government Employees, Local 2012 (Union) filed an unfair labor practice charge against the U.S. Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Immigration and Customs Enforcement, Philadelphia District, Philadelphia, Pennsylvania (Respondent). On October 29, 2004, the Regional Director of the Boston Region of the Federal Labor Relations Authority (Authority) issued a Complaint and Notice of Hearing in which it was alleged that the Respondent committed an unfair labor practice in violation of §§7121, 7122 and 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by failing to comply with a final and binding arbitration award. The Complaint and Notice of Hearing included a notice to the Respondent that its answer was to be filed in person or by mail no later than November 23, 2004.
On December 13, 2004, the General Counsel filed a Motion for Summary Judgment on the grounds that the Respondent has not filed an answer [n1] and that its failure to do so constitutes an admission to the allegations of the Complaint. Pursuant to §2423.27(b) of the Rules and Regulations of the Authority, the Respondent's response to the motion was to have been filed by December 28, 2004, allowing for five additional days for service by mail and not counting intervening holidays and weekends in accordance with §§2429.21 and 2429.22 of the Rules and Regulations. As of the date of this Decision, the Respondent has not filed a response to the General Counsel's motion, nor has the Respondent submitted motions to extend either of the filing deadlines in accordance with §2423.21 of the Rules and Regulations.
The Standards for Summary Judgment
In considering motions for summary judgment submitted pursuant to §2423.27 of the Rules and Regulations of the Authority, the criteria to be applied are those used by United States District Courts under Rule 56 of the Federal Rules of Civil Procedure, Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee, 50 FLRA 220, 222 (1995). Rule 56(c) provides, in pertinent part, that:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. [n2]
Upon review of the General Counsel's motion I have determined that the summary judgment process is appropriate for this case. I will therefore proceed to consider the motion on its merits.
Findings of Fact and Conclusions of Law
In accordance with §2423.20(b) of the Rules and Regulations of the Authority the failure of the Respondent to file an answer to the Complaint constitutes an [ v60 p996 ] admission of its allegations. I will, therefore, adopt the following factual and legal allegations of the Complaint:
1. The Respondent is an agency under 5 U.S.C. §7103(a)(3).
2. The American Federation of Government Employees, AFL-CIO (AFGE), is a labor organization under 5 U.S.C. §7103(a)(4) and the exclusive representative of a unit of employees appropriate for collective bargaining at the U.S. Department of Homeland Security (DHS).
3. The American Federation of Government Employees, Local 2012, (the Charging Party), is an agent of AFGE for the purpose of representing employees of the Respondent within the bargaining unit described in paragraph 4.
4. The charge was filed by the Charging Party with the Boston Regional Director on July 6, 2004, and a copy of the charge was served on the Respondent.
5. During the time period covered by this complaint, the persons listed below occupied the positions opposite their names:
File 1: Authority's Decision in 60 FLRA No. 179
File 2: ALJ's Decision
Footnote # 1 for 60 FLRA No. 179 - ALJ's Decision
Footnote # 2 for 60 FLRA No. 179 - ALJ's Decision
The General Counsel has attached exhibits to his motion consisting of the unfair labor practice charge with the forwarding letter to the Respondent and the Union, the Complaint and Notice of Hearing and the Arbitrator's award. Although I will take official notice of the unfair labor practice charge, the forwarding letter and the Complaint and Notice of Hearing, I will not consider the arbitration award because it has not been authenticated by an affidavit and is therefore not in evidence.
Footnote # 3 for 60 FLRA No. 179 - ALJ's Decision
Footnote # 4 for 60 FLRA No. 179 - ALJ's Decision
Footnote # 5 for 60 FLRA No. 179 - ALJ's Decision
In the Complaint and Notice of Hearing the General Council has alleged that the award was issued on December 23, 2004. That was obviously a typographical error since the unfair labor practice charge and the Complaint and Notice of Hearing were issued before that date. In view of the allegation as to when the award became final, I will assume that the correct date is December 23, 2003.