United States Department of Transportation, Federal Aviation Administration, Houston, Texas (Respondent) and National Air Traffic Controllers Association, AFL-CIO (Charging Party/Union)

[ v63 p34 ]

63 FLRA No. 14

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
HOUSTON, TEXAS
(Respondent)

and

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION
AFL-CIO
(Charging Party/Union)

DA-CA-06-0453

_____

DECISION AND ORDER

December 12, 2008

_____

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This unfair labor practice (ULP) 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 Respondent's exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by issuing a letter of reprimand to a Union official (the official) in retaliation for his protected activity. The Judge granted the GC's motion for summary judgment and found that the Respondent violated the Statute as alleged.

      For the following reasons, we deny the Respondent's exceptions.

II.     Background and Judge's Decision

      The GC filed a complaint alleging that the Respondent violated § 7116(a)(1) and (2) of the Statute by issuing a letter of reprimand to the official in retaliation for his protected activity. The complaint stated that failure to file an answer within the time specified by Authority Regulations would constitute an admission of the allegations. The Respondent did not timely file an answer to the complaint and did not request an extension of time to file. Approximately two weeks after the deadline, the Respondent filed an answer along with a statement that the complaint had been misfiled in its office.

      Shortly thereafter, the GC filed a motion for summary judgment on the grounds that there were no "factual or legal issues in dispute." Judge's Decision (Decision) at 2. The GC recommended, as elements of the remedy, that the Respondent remove the letter of reprimand from the official's file, cease from interfering with the statutory rights of employees, and post an appropriate notice regarding the ULP. Id. at 6-7. The Respondent opposed the motion for summary judgment and requested that the complaint be dismissed because it had already removed the letter of reprimand from the official's file. The Respondent observed that, in another case, the GC offered an agency an extension of time, which the agency had not requested, to file an answer. Id. at 2 (citing NAGE, Local R1-32, Bedford, Mass., 54 FLRA 348, 356 (1998) (ALJ decision)).

      The Judge stated that, because there was no dispute as to the timeliness of the answer, the only issue to be determined was whether the Respondent had shown "good cause" for its late submission. Id. at 3. The Judge found that misplacement of the complaint in the Respondent's office did not "support a finding of good cause or relieve the Respondent of its responsibilities for being aware of statutory and regulatory requirements." Id. at 4. The Judge found that, under § 2423.20(b) of the Authority's Regulations, the Respondent's failure to file an answer constituted an admission of the allegations. Therefore, the Judge found that there were no disputed factual or legal matters to resolve and granted the GC's motion for summary judgment. Id. As a remedy, the Judge recommended a cease and desist order and the posting of a notice at the Respondent's relevant facilities. Id. at 7.

III.     Positions of the Parties

A.     Respondent's Exceptions

      In its exceptions, the Respondent states that the Judge based her decision solely on its failure to file a timely answer. In this regard, the Respondent asserts that the complaint was misfiled in its office because it received over 10,000 grievances in the mail around the same time that it received the complaint. Exceptions at 1. According to the Respondent, by the time the mail was processed, it was too late to request an extension. Id. at 2. The Respondent argues that, despite the delay in filing, the Judge had an opportunity to review the answer prior to ruling on the GC's motion to dismiss.

      [ v63 p35 ] The Respondent also asserts that the Judge exceeded her authority and violated the Privacy Act of 1974 by requiring the posting of a notice at its facilities. Id. The Respondent argues that the public posting of a notice identifying the official and the discipline that he received violates the provisions of the Privacy Act outlined in 5 U.S.C. § 552a(b). In this regard, the Respondent argues that, because the notice discloses personal information, it would subject the Respondent to civil remedies under 5 U.S.C. § 552a(g).

      The Respondent further contends that the Judge "exercised extreme prejudice" when she failed to consider "pertinent and material evidence" in her summary judgment decision. Id. at 2-3. In this connection, the Respondent states that it informed the Authority prior to the filing of the GC's complaint that the official involved in this case had already filed a grievance based on the actions at issue. [n1]  Id. The Respondent argues that, because the grievance involved the "exact matter" that formed the basis for the GC's complaint, the complaint is not valid under § 7116(d) of the Statute. Id. at 1, 3. According to the Respondent, the Judge's failure to consider this evidence constituted prejudice.

      Finally, the Respondent contends that the case was moot when the Judge ruled on the motion for summary judgment. In this regard, the Respondent argues that it withdrew the letter of reprimand from the official's file, and informed the Judge of this fact, prior to the Judge's final decision. Id. at 3. The Respondent argues that without the letter of reprimand, there was no remaining ULP issue for the Judge to decide.

B.     GC's Opposition

      The GC asserts that the Respondent's "good cause" argument is not properly before the Authority because the Respondent failed to raise it in its opposition to the motion for summary judgment. Opposition at 2. Further, the GC contends that, regardless of whether the Respondent could find the mailed complaint among 10,000 other pieces of mail, it received notice by facsimile transmission that the complaint had been filed. Id. at 2-3. As there was no allegation that the Respondent had difficulties with its fax machine, the GC argues that the Respondent has not established good cause for its late filing. Id. at 3.

      In response to the Respondent's second exception, the GC notes that the Authority has held that posting of a notice in an affected facility is an appropriate remedy. Id. at 4. The GC further maintains that the notice does not violate the Privacy Act because it addresses only the official's illegally issued letter of reprimand and makes clear that this discipline has been rescinded. Id. at 3-4.

      As to the Respondent's claim that the Judge did not consider pertinent and material evidence, the GC asserts that the Respondent failed to raise that evidence before the Judge. In this regard, the GC states that neither the Respondent's answer nor its response to the summary judgment motion addressed its claim that the same matter underlying the ULP had been submitted to the negotiated grievance procedure. Therefore, the GC argues that the Respondent cannot raise that claim to the Authority now. Id. at 4.

      Finally, the GC contends that the ULP is not moot, as argued by the Respondent, because the rescission of the letter of reprimand did not fully remedy the Respondent's illegal action. According to the GC, the posting of a notice is an appropriate way for the Respondent to indicate to employees that it recognizes its obligations under the law. Id.

IV.     Analysis and Conclusions

A.     The Judge did not err in finding that the Respondent failed to establish "good cause" for the late filing of its answer to the complaint.

      To the extent that the Respondent's explanation for its delay in filing an answer can be construed as an exception, we construe it as a claim that the Judge erred in finding that the Respondent failed to establish "good cause" for the delay in filing its answer. 5 C.F.R. § 2423.20(b).

      The Authority's Regulations provide that, in ULP proceedings, an answer to a complaint must be filed within 20 days of service of the complaint, and that, "[a]bsent a showing of good cause to the contrary, failure to file an answer or respond to any allegation shall constitute an admission." Id. The standard for determining whether to waive an expired time limit is set forth in 5 C.F.R. § 2429.23(b), which permits waiver "in extraordinary circumstances." See United States Dep't of Hous. & Urban Dev., Ky. State Office, Louisville, Ky., 58 FLRA 73, 73 n.2 (2002). In this case, the Judge found that the Respondent did not file the answer in a timely manner and that its assertion that the complaint was misfiled did "not support a finding of good cause or [ v63 p36 ] relieve the Respondent of . . . being aware of statutory and regulatory requirements." [n2]  Decision at 4.

      The Respondent's exceptions include no legal argument that the Judge misapplied the law regarding the late filing of answers. [n3]  Rather, the Respondent provides additional information about the circumstances surrounding its late filing. In this regard, the Respondent states that it received 10,000 grievances around the same time as the complaint and that, by the time the mail was processed, an extension could not be requested. See Exceptions at 1, 2. While this information clarifies the Respondent's situation to some extent, we find that it establishes neither that extraordinary circumstances existed to waive the expired time limit nor that the Judge erred in failing to find good cause for the delay in filing the answer. See, e.g., United States Dep't of Veterans Affairs, Med. Ctr., Kan. City, Mo., 52 FLRA 282 (1996), and cases cited therein.

      Moreover, even if this additional information were enough to establish extraordinary circumstances or good cause, the Respondent has not established 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 to the GC's motion for summary judgment, arguing that the official's letter of reprimand had already been removed from his file, did not contain any "documents, affidavits, applicable precedent, or other appropriate materials" in support of its argument that the claim was moot. See id. Therefore, the claim was a "mere allegation[]" that did not show that there was a genuine issue to be determined at the hearing. Id. Accordingly, the Respondent's response is insufficient to establish error on the part of the Judge. See Nat'l Ass'n of Air Traffic Specialists, Macon AFSS, Macon, Ga., 59 FLRA 261, 262 (2003).

      Because the Respondent's exception does not demonstrate that the Judge erred in finding no evidence of "good cause" or in granting summary judgment, we deny this exception.

B.     The exception regarding the proposed remedy is not properly before the Authority.

      In its motion for summary judgment, the GC proposed the posting of a notice in the Respondent's facilities as an element of the remedy. The record establishes that the Respondent's response to the GC's motion contains no argument that the posting of a notice specifying the rescission of the official's unlawful letter of reprimand would violate the Privacy Act. The Authority's Regulations provide that "[t]he Authority will not consider . . . any issue, which was not presented in the proceedings before the . . . Judge." 5 C.F.R. § 2429.5. As the Respondent had the opportunity to raise its Privacy Act argument before the Judge, but failed to do so, the claim is not properly before the Authority. See, e.g., United States Dep't of Def., Def. Distrib. Depot, Anniston, Ala., 61 FLRA 108, 109 (2005) (citation omitted). Accordingly, we dismiss this exception.

C.     The Judge did not err in failing to determine that the ULP was barred by an earlier-filed grievance under § 7116(d) of the Statute.

      The Respondent claims that the Judge erred in failing to consider evidence that the ULP was barred by § 7116(d) of the Statute because a grievance raising the same issues was filed prior to the complaint. [n4]  The record establishes that the Respondent did not raise this argument in its untimely answer to the complaint or in its opposition to the GC's motion for summary judgment. However, the fact that the Respondent did not raise this claim until its exceptions does not preclude the Authority from addressing it. The Authority has held that exceptions challenging the Authority's jurisdiction under § 7116(d) must be addressed even though not previously raised by the respondent. See United States Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Coatesville, Pa., 57 FLRA 663, 666 (2002) (citation omitted).

      [ v63 p37 ] The Authority has held that the determination of whether a ULP charge is barred by an earlier-filed grievance requires an examination of whether "the ULP charge arose from the same set of factual circumstances as the grievance and the theory advanced in support of the ULP charge and the grievance are substantially similar." Dep't of Transp., FAA, Fort Worth, Tex., 55 FLRA 951, 953 (1999) (quoting United States Dep't of the Army, Army Fin. & Accounting Ctr., Indianapolis, Ind., 38 FLRA 1345, 1351 (1991). It is therefore possible that, even if the factual circumstances underlying the grievance and the ULP charge are the same, the theory is not. See, e.g., AFGE, Nat'l Council of EEOC Locals No. 216, 49 FLRA 906, 914-15 (1994) (§ 7116(d) not a bar where grievance was based on the just cause provision of parties' agreement and ULP alleged a statutory violation based on retaliation and discrimination).

      Although the Respondent claims that a grievance was filed before the complaint, supra note 1, the record contains no information concerning the nature of the grievance. In this regard, the Respondent did not include a copy of the grievance with its exceptions and made no assertions concerning the specific facts or theories underlying the grievance. Without such support for its claim, it is impossible to assess whether the grievance concerns the same factual circumstances or legal theories as the ULP complaint. Where a party has provided no support for a claim that § 7116(d) bars access to a particular forum, the Authority has found that the claim constitutes a bare assertion and has declined to consider it. See United States Dep't of Homeland Sec., United States Customs & Border Prot., Port of Seattle, Seattle, Wash., 60 FLRA 490, 492 n.7 (2004).

      As the Respondent provides no support for its claim that the ULP involved issues identical to those raised in an earlier-filed grievance, its allegation constitutes a bare assertion. See id. Accordingly, we deny this exception.

D.     The ULP is not moot.

      In determining whether a case is moot, consideration is given to whether any decision rendered by the Authority could have a "practical legal effect." See FAA, 55 FLRA 254, 261 (1999) (citation omitted). The Authority has found ULP cases to be moot where the former exclusive representative was no longer recognized and no individual rights were involved. Def. Mapping Agency, Hydrographic/Topographic Ctr., Louisville Office, Louisville, Ky., 51 FLRA 1751, 1754-55 (1996). A case does not become moot simply because a particular remedy may no longer be appropriate. Id. at 1755. When a cease and desist order and the posting of a notice remain viable remedies, a case is not moot. FAA, 55 FLRA at 261 (citing United States Air Force Acad., Colo. Springs, Colo., 52 FLRA 874, 878 (1997) (Air Force Acad.)).

      Although the Respondent has removed the letter of reprimand from the official's file, the potential for further discrimination against Union officials remains. Consequently, a cease and desist order barring such discrimination, along with a notice posting, would have a practical legal effect in the circumstances of this case. Accordingly, we reject the Respondent's contention that the complaint should be dismissed as moot and deny this exception. See Air Force Acad., 52 FLRA at 878.

V.     Order

      The Respondent's exception regarding the proposed remedy is dismissed. The Respondent's remaining exceptions are denied.


File 1: Authority's Decision in 63 FLRA No. 14
File 2: ALJ Decision


Footnote # 1 for 63 FLRA No. 14 - Authority's Decision

   The Respondent states that the grievance was filed on December 13, 2005, and that the Authority was made aware of that fact in August 2006. Exceptions at 2-3. The complaint was issued on September 28, 2006. Decision at 1.


Footnote # 2 for 63 FLRA No. 14 - Authority's Decision

   The Authority has clearly stated that parties appearing before it are charged with knowledge of all pertinent statutory and regulatory filing requirements. See, e.g., United States Envtl. Prot. Agency, Envtl. Research Lab., Narragansett, R.I., 49 FLRA 33, 35 (1994).


Footnote # 3 for 63 FLRA No. 14 - Authority's Decision

   The Respondent states that, "in a similar case, the Authority offered an un-requested extension" for a respondent to file an untimely answer. Exceptions at 2 (citing NAGE, Local R1-32, Bedford, Mass., 54 FLRA 348, 356 (1998) (NAGE)). However, the Respondent makes no legal arguments as to how this case establishes that the Judge erred in not finding good cause. We further note t