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29:0482(48)CA - Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, NY and AFGE Local 3148 -- 1987 FLRAdec CA

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The decision of the Authority follows:

29 FLRA No. 48





              Charging Party

Case No. 2-CA-60082
(27 FLRA No. 97)


I. Statement of the Case

This matter is before the Authority on motions filed by the Respondent (1) seeking reconsideration of our decision of June 29, 1987 in 27 FLRA No. 97, and (2) requesting waiver of the time limit established by section 2429.17 of our Regulations for filing a motion for reconsideration. For the reasons set forth below, we grant the motions and, on consideration of the record as a whole, we reaffirm our Decision and Order in this matter.

II. Background

In our decision of June 29, 1987, we found that the Respondent violated section 7116(a)(1), (2) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) when it (1) denied an employee's request for union representation under section 7114(a)(2)(B) of the Statute at an examination in connection with an investigation, and (2) proposed to suspend and then suspended the employee for refusing to take part in the examination. We also found that the Respondent did not violate section 7116(a)(1) of the Statute by stating to the employee that he would be disciplined because he had refused to participate in the examination. As a remedy to the sustained [PAGE] violations, we ordered the Respondent to rescind the employee's suspension; to reimburse him for the pay he had lost as a result of it; and to expunge any reference to the suspension from his personnel records. With respect to the charge against the employee of providing false statements, we noted that if the Respondent decided that disciplinary action is warranted against the employee for this conduct, the Respondent must institute a new proceeding in which no consideration is given to the employee's conduct at the meeting which resulted in the unfair labor practices.

Our decision in 27 FLRA No. 97 stated that the Respondent's cross-exceptions were untimely filed and therefore were not considered. That determination was based on the belief that the brief containing the Respondent's cross-exceptions and opposition to the Union's exceptions had been filed with the Authority after the due date. The Respondent, in its motions now before us, has demonstrated that its brief was filed timely.

Accordingly, we find pursuant to sections 2429.17 and 2429.23(b) of our Regulations that the Respondent has established extraordinary circumstances for granting its motions. Therefore, we grant the Respondent's motions for reconsideration and for waiver of the expired time limit, and will consider its cross-exceptions and arguments.

III. Discussion

In its motion for reconsideration and its brief containing its cross-exceptions and opposition to the Union's exceptions, the Respondent argues that (1) the meeting of October 31 between the employee and a supervisor did not constitute an examination within the meaning of section 7114(a)(2)(B) of the Statute; (2) the employee did not make a valid request for representation so as to invoke his statutory rights, and even if he had made a valid request he effectively withdrew the request before management could act on it; and (3) the remedy setting aside the suspension is not appropriate. The Respondent also asserts that the Union's exceptions lack merit.

We have given full consideration to the Respondent's arguments presented in its motion for reconsideration and in its brief containing its cross-exceptions and opposition to the union's exceptions, and have reviewed the record and our decision in this case. After such consideration, we have [ v29 p2 ] determined that the Respondent's arguments present no basis for modifying our previous decision, and we reaffirm our Decision and Order in this matter.

Issued, Washington, D.C., September 31, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member