United States, Department of Defense, Defense Distribution Depot, Anniston, Alabama (Respondent) and American Federation of Government Employees, Local 1945, AFL-CIO (Charging Party)

[ v61 p108 ]

61 FLRA No. 21

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE DISTRIBUTION DEPOT
ANNISTON, ALABAMA
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1945, AFL-CIO
(Charging Party)

AT-CA-04-0457

_____

DECISION AND ORDER

July 15, 2005

_____

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

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 complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally removing bargaining unit positions from the Alternative Work Schedule (AWS) without first notifying the American Federation of Government Employees, Local 1945, AFL-CIO (the Union) and providing it the opportunity to negotiate to the extent required by the Statute.

      The Respondent did not file an answer to the complaint. Following the Respondent's failure to file an answer, the GC filed a motion for summary judgment in which it sought status quo ante relief. The Respondent did not respond to the GC's motion.

      The Judge granted the General Counsel's unopposed motion for summary judgment. The Judge also granted the status quo ante relief sought by the General Counsel and ordered the Respondent to post a notice to employees. The Respondent excepts to the Judge's granting of status quo ante relief. [ v61 p109 ]

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

      In so doing, we find that 5 C.F.R. § 2429.5 bars our consideration of the Respondent's claim that "the failure to define or describe" the AWS in the pleadings or the Judge's decision "renders uncertain [the] Respondent's responsibilities in complying with the status quo ante remedy ordered by the Judge." Exceptions at 2. Under § 2429.5 of the Authority's Regulations, "[t]he Authority will not consider . . . any issue, which was not presented in the proceedings before the . . . Administrative Law Judge[.]" 5 C.F.R. § 2429.5. In its motion for summary judgment, the GC requested the status quo ante relief granted by the Judge. As found by the Judge, the Respondent did not file an opposition to the GC's motion for summary judgment or offer any evidence to the Judge demonstrating the inappropriateness of such a remedy. See Judge's Decision at 4.

      The Respondent could have raised, but did not raise, its argument regarding the status quo ante relief before the Judge. As the Respondent's claim is raised for the first time in its exceptions, the claim is not properly before us. See, e.g., United States Dep't of Homeland Sec., Border & Transp. Sec. Directorate, Bureau of Immigration & Customs Enforcement, Phila. Dist., Phila., Pa., 60 FLRA 993 (2005) (§ 2429.5 barred consideration of respondent's claims in exceptions because those claims were raised for the first time in its exceptions).

      The Respondent argues that in United States Dep't of Housing & Urban Dev., Ky. State Office, Louisville, Ky., 58 FLRA 73 (2002) (Ky. State Office), the Authority reviewed arguments by an agency raised for the first time in its exceptions that the Judge erred by directing that the notice to employees be signed by a particular official of the agency. However, unlike in this case, there was no evidence in Ky. State Office that the agency could have made its arguments regarding the notice to employees prior to the issuance of the Judge's decision. Thus, the Respondent's reliance on Ky. State Office is misplaced.

      Furthermore, we note that even if the Respondent's claim were properly before us, the Respondent has not provided any support for its claim. In this regard, any dispute over the identity of the AWS may be resolved in the compliance stage of the proceeding. See, e.g., Dep't of Defense Dependents Schools, 50 FLRA 197, 207 (1995).

II.      Order

      Pursuant to § 2423.41(c) of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the Defense Logistics Agency, Defense Distribution Depot, Anniston, Alabama, shall:

      1.      Cease and desist from:

           (a)      Unilaterally removing bargaining unit positions from the Alternate Work Schedule without first notifying the American Federation of Government Employees, Local 1945, AFL-CIO (the Union) and providing it the opportunity to bargain over the decision to change such conditions of employment.

           (b)      In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      2.      Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

           (a)      Allow all employees occupying bargaining unit positions the opportunity to work the Alternate Work Schedule.

           (b)      Give notice to, and upon request, negotiate with the Union over the decision to remove bargaining unit positions from the Alternate Work Schedule.

           (c)      Post at its facilities at the Defense Logistics Agency, Defense Distribution Depot, Anniston, Alabama, where bargaining unit employees represented by the American Federation of Government Employees, Local 1945, AFL-CIO, are located, 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 Commanding Officer, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (d)      Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Atlanta Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v61 p110 ]


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

The Federal Labor Relations Authority has found that the Defense Logistics Agency, Defense Distribution Depot, Anniston, Alabama, 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 unilaterally change working conditions of unit employees represented by the American Federation of Government Employees, Local 1945, AFL-CIO (the Union) by removing bargaining unit positions from the Alternate Work Schedule without first notifying the Union and providing it the opportunity to bargain over the decision to change such conditions of employment.

WE WILL NOT refuse to bargain with the Union over changes in working condition of unit employees.

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

WE WILL allow all employees occupying bargaining unit positions the opportunity to work the Alternate Work Schedule.

                               ________________________ (Activity)

Date: _____________ 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, Federal Labor Relations Authority, whose address is: Marquis Two Tower, 285 Peachtree Center Avenue, Suite 701, Atlanta, GA 30303-1270, and whose telephone number is: 404-331-5380.


Office of Administrative Law Judges

DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION DEPOT
ANNISTON, ALABAMA
Respondent

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1945, AFL-CIO
Charging Party

Case No. AT-CA-04-0457

Brent S. Hudspeth, Esq.
For the General Counsel

Before: SUSAN E. JELEN
Administrative Law Judge

DECISION ON MOTION
FOR SUMMARY JUDGMENT

      On September 30, 2004, the Regional Director of the Atlanta Region of the Federal Labor Relations Authority issued a Complaint and Notice of Hearing, alleging that the Defense Logistics Agency, Defense Distribution Depot, Anniston, Alabama (the Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), by unilaterally removing bargaining unit positions from the Alternate Work Schedule (AWS) without first notifying the American Federation of Government Employees, Local 1945, AFL-CIO (the Union) and providing it the opportunity to negotiate to the extent required by the Statute. The complaint was served on Respondent by certified mail. The complaint specified that, in accordance with the Authority's Rules and Regulations, the Respondent must file an Answer to the complaint no later than October 25, 2004, and that a failure to file an answer shall constitute an admission of the allegations of the complaint. A hearing was scheduled for December 9, 2004.

      The Respondent did not file an answer, either in person or by mail, within the required period or at any time thereafter.

      On November 17, 2004, Counsel for the General Counsel filed a Motion for Summary Judgment, asserting that by its failure to answer the complaint, the Respondent has admitted all of the allegations therein. Since no facts are in dispute, the General Counsel submits that the record demonstrates that the Respondent violated section 7116(a)(1) and (5) of the Statute. [ v61 p111 ]

      The Respondent has failed to file any response to the General Counsel's Motion for Summary Judgment within the time period provided by Regulations. See 5 C.F.R. § 2423.27(b).

Discussion of Motion for Summary Judgment

      Section 2423.20(b) of the Authority's Rules and Regulations, 5 C.F.R. § 2423.20(b), provides, in pertinent part:

(b) Answer. Within 20 days after the date of service of the complaint, . . . the Respondent shall file and serve, . . . an answer with the Office of Administrative Law Judges. The answer shall admit, deny, or explain each allegation of the complaint. . . . Absent a showing of good cause to the contrary, failure to file an answer or respond to any allegation shall constitute an admission.

The Rules and Regulations also explain how to calculate filing deadlines and how to request extensions of time for filing the required documents. See, e.g., sections 2429.21 through 2429.23.

      In this case the Respondent has not filed an answer as required by the Regulations. In accordance with section 2423.20(b) of the Rules and Regulations, this failure constitutes an admission of each of the allegations of the Complaint. Department of Veterans Affairs Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1594 (1996). Furthermore, the Respondent has not filed any response to the Motion for Summary Judgment. Accordingly, there are no disputed factual or legal issues in this case and it is appropriate to resolve this case by summary judgment. Based on the existing record, I make the following findings of fact, conclusions of law and recommendations.

Findings of Fact

      1.      The Respondent is an agency as defined by 5 U.S.C. § 7103(a)(3).

      2.      The American Federation of Government Employees, AFL-CIO (AFGE) is a labor organization as defined by 5 U.S.C. § 7103(a)(4) and is the exclusive representative of a consolidated unit of employees appropriate for collective bargaining at the Respondent.

      3.      The Union is an agent of AFGE for representing employees of the Respondent within the unit described in paragraph 2 above.

      4.      On or about July 4, 2003, the Respondent, through Lt. Colonel Kevin Kahley, Commanding Officer, removed bargaining unit positions from the Alternate Work Schedule.

      4.      This constituted a change in the conditions of employment of bargaining unit employees and it was effectuated by the Respondent without providing the Union with notice and the opportunity to negotiate to the extent required by the Statute.

Discussion and Conclusions

      Section 7116(a)(5) of the Statute provides that it shall be an unfair labor practice for an agency to refuse to negotiate in good faith with a labor organization as required by the Statute. This duty to negotiate in good faith requires that prior to implementing a change in conditions of employment of bargaining unit employees, an agency is required to provide the exclusive representative with notice and an opportunity to bargain over those aspects of the change that are within the duty to bargain. The Authority has found that an agency's right to establish or terminate an established alternate work schedule is subject to bargaining. Thus, the establishment or termination of alternate work schedules is negotiable without regard to management's rights under section 7106 of the Statute. See United States Department of Justice, Immigration and Naturalization Service, Los Angeles, California, 59 FLRA 387 (2003) (INS Los Angeles) and U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, 43 FLRA 87 (1991). Respondent has admitted by its failure to file an answer that the change in working conditions in this case is one that triggers the agency's duty to negotiate in good faith with the exclusive representative. Therefore, as admitted by its failure to answer the complaint, Respondent violated section 7116(a)(1) and (5) of the Statute when it removed bargaining unit positions from the Alternate Work Schedule.

Remedy

      Counsel for the General Counsel proposed a recommended remedy requiring that the Respondent be ordered to restore the status quo ante by allowing employees occupying bargaining unit positions the opportunity to work the Alternate Work Schedule. A status quo ante remedy is not always appropriate when an agency has unilaterally implemented a change in conditions of employment, but by failing to respond to the Motion for Summary Judgement and by failing to offer any evidence demonstrating the inappropriateness of such a remedy, the Respondent has waived any objection to the remedy proposed by the General Counsel. Therefore, I find the requested status quo ante remedy appropriate in this matter. INS, Los Angeles.

      Accordingly, I recommend that the Authority grant the General Counsel's Motion for Summary Judgment and issue the following Order: [ v61 p112 ]

ORDER

      Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Defense Logistics Agency, Defense Distribution Depot, Anniston, Alabama, shall:

      1.      Cease and desist from:

           (a)      Unilaterally removing bargaining unit positions from the Alternate Work Schedule without first notifying the American Federation of Government Employees, Local 1945, AFL-CIO (the Union) and providing it the opportunity to bargain over the decision to change such conditions of employment.

           (b)      In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      2.      Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

           (a)      Allow all employees occupying bargaining unit positions the opportunity to work the Alternate Work Schedule.

           (b)      Give notice to, and upon request, negotiate with the Union over the decision to remove bargaining unit positions from the Alternate Work Schedule.

           (c)      Post at its facilities at the Defense Logistics Agency, Defense Distribution Depot in Anniston, Alabama, where bargaining unit employees represented by the American Federation of Government Employees, Local 1945, AFL-CIO, are located, 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 Commanding Officer, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

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

Issued, Washington, DC, February 7, 2005.

 ________________________
       SUSAN E. JELEN
      Administrative Law Judge


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

The Federal Labor Relations Authority has found that the Defense Logistics Agency, Defense Distribution Depot, Anniston, Alabama, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change working conditions of unit employees represented by the American Federation of Government Employees, Local 1945, AFL-CIO (the Union) by removing bargaining unit positions from the Alternate Work Schedule without first notifying the Union and providing it the opportunity to bargain over the decision to change such conditions of employment.

WE WILL NOT refuse to bargain with the Union over changes in working condition of unit employees.

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

WE WILL allow all employees occupying bargaining unit positions the opportunity to work the Alternate Work Schedule.

 ________________________
      (Activity)

Date: _____________ 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, Federal Labor Relations Authority, whose address is: Marquis Two Tower, 285 Peachtree Center Av