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  • United States, Department of Labor, Assistant Secretary For Employment Standards (Petitioner) and American Federation of Government Employees, Local 2562 (Respondent/Labor Organization)

United States, Department of Labor, Assistant Secretary For Employment Standards (Petitioner) and American Federation of Government Employees, Local 2562 (Respondent/Labor Organization)

[ v60 p223 ]

60 FLRA No. 47

UNITED STATES
DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR
EMPLOYMENT STANDARDS
(Petitioner)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 2562
(Respondent/Labor Organization)

0-MC-21

_____

DECISION AND ORDER

September 9, 2004

_____

I.      Statement of the Case

      This matter is before the Authority on a petition for enforcement of a decision and order of the Assistant Secretary for Employment Standards, United States Department of Labor (Assistant Secretary), pursuant to 5 C.F.R. § 2428.2 and 29 C.F.R. § 458.92. [*]  No opposition to the petition was filed. For the reasons that follow, we enforce the Assistant Secretary's decision and order, as modified consistent with the Assistant Secretary's request.

II.      Background and Assistant Secretary's Decision

      The District Director, Office of Labor-Management Standards, Employment Standards Administration, Department of Labor filed a complaint alleging that AFGE, Local 2562 (the Respondent) failed to file annual financial reports for fiscal years 1999, 2000 and 2001, as required by 5 U.S.C. § 7120(c) and 29 C.F.R. §§ 403.2, 403.4(a)(2), 403.6 and 458.3. An administrative law judge (ALJ) for the Department of Labor issued a Notice of Docketing, which pertinently provided that the Respondent was required to file an answer within twenty days after the service of the complaint under 29 C.F.R. § 458.68, and that a hearing would be scheduled after receipt of the Respondent's answer. When the Respondent failed to file an answer, the ALJ ordered the Respondent to show cause why a default judgment should not be entered under 29 C.F.R. § 18.6(d)(2)(v). The Respondent failed to respond to the order, and the ALJ issued a recommended decision that, as relevant here, the Respondent should be directed to file financial reports for fiscal years 1999, 2000, and 2001 and cease and desist from failing to comply timely with reporting requirements and from further violating 29 C.F.R. § 458.3.

      When no exceptions were filed to the ALJ's recommended decision, the Assistant Secretary issued a decision, in which the Assistant Secretary stated that under 29 C.F.R. § 458.68(b), the failure to file an answer constitutes an admission of the allegation. The Assistant Secretary also stated that, under 29 C.F.R. § 458.71, the admission of an allegation constitutes a waiver of hearing and results in the ALJ's adoption of the material allegations in the complaint. Accordingly, the Assistant Secretary ordered the Respondent to file financial reports for fiscal years 1999, 2000 and 2001, and cease and desist from failing to comply timely with the reporting requirements.

III.      Assistant Secretary's Petition for Enforcement

      The Assistant Secretary filed a petition for enforcement with the Authority pursuant to 5 C.F.R. § 2428.2 and 29 C.F.R. § 458.92, alleging that the Respondent has failed to comply with the Assistant Secretary's decision and order and has also failed to file its financial reports for fiscal years 2002 and 2003. The Assistant Secretary requests that the Authority issue an order enforcing the Assistant Secretary's decision, and that the Authority order "expressly include a mandate that the Respondent comply with any and all overdue reporting requirements." Petition at 4 n.2. Although the Authority's Office of Case Control issued a notice informing the Respondent of its right to file an opposition to the petition, the Respondent did not file an opposition.

IV.      Analysis and Conclusions

      The Authority's Regulations provide that "[a] decision and order of the Assistant Secretary shall be enforced unless it is arbitrary and capricious or based upon manifest disregard of the law." 5 C.F.R. § 2428.3(a). The Authority's Regulations also provide that the Authority "shall issue its decision on the case enforcing, enforcing as modified, refusing to enforce, or remanding the decision and order of the Assistant Secretary." 5 C.F.R. § 2428.3(b).

      The Respondent did not file an opposition to the Assistant Secretary's petition. Further, the record provides no basis for concluding that the Assistant Secretary's [ v60 p224 ] decision is arbitrary and capricious or based upon a manifest disregard of the law. Although the Assistant Secretary's decision directed the Respondent to file the reports for fiscal years 1999, 2000 and 2001 and to cease and desist from failing to comply timely with the reporting requirements, it is undisputed that the Respondent has failed to file its reports for fiscal years 2002 and 2003. Accordingly, and noting again that the Respondent filed no opposition to the petition, it is appropriate for the Authority to grant the Assistant Secretary's request that the Authority "expressly . . . mandate that the Respondent comply with any and all overdue reporting requirements." Petition at 4 n.2. In this connection, as noted above, the Authority's Regulations permit the Authority to enforce the Assistant Secretary's decisions "as modified[.]" 5 C.F.R. § 2428.3(b).

V.      Order

      The Assistant Secretary's decision is hereby enforced, and the Respondent is directed to comply with any and all overdue reporting requirements, and to cease and desist from failing to comply timely with the reporting requirements.

Appendix

5 U.S.C. § 7120(c) provides, in pertinent part:

A labor organization which has or seeks recognition as a representative of employees under this chapter shall file financial and other reports with the Assistant Secretary of Labor for Labor Management Relations . . . .

5 C.F.R. § 2428.2 provides, in pertinent part:

     (a) The Assistant Secretary may petition the Authority to enforce any Assistant Secretary decision and order in a standards of conduct case arising under 5 U.S.C. 7120. The Assistant Secretary shall transfer to the Authority the record in the case . . . . A copy of the petition for enforcement shall be served on the labor organization against which such order applies.
     (b) An opposition to Authority enforcement of any such Assistant Secretary decision and order may be filed by the labor organization against which such order applies twenty (20) days from the date of service of the petition, unless the Authority, upon good cause shown by the Assistant Secretary, sets a shorter time for filing such opposition. . . .

29 C.F.R. § 18.6(d) provides, in pertinent part:

     (2) If a party or an officer or agent of a party fails to comply with a subpoena or with an order, . . . the administrative law judge, for the purpose of permitting resolution of the relevant issues and disposition of the proceeding without unnecessary delay despite such failure, may take such action in regard thereto as is just, including but not limited to the following:
     . . . .
          (v) Rule that . . . a decision of the proceeding be rendered against the non-complying party . . . .

29 C.F.R. § 403.2 provides, in pertinent part:

     (a) Every labor organization shall, as prescribed by the regulations in this part, file with the Office of Labor-Management Standards within 90 days after the end of each of its fiscal years, a financial report signed by its president and treasurer, or corresponding principal officers, together with a true copy thereof. . . . [ v60 p225 ]

29 C.F.R. § 403.4(a)(2) provides:

If a labor organization, not in trusteeship, has gross annual receipts totaling less than $10,000 for its fiscal year, it may elect, subject to revocation of the privileges as provided in section 208 of the Act, to file the annual financial report called for in section 201(b) of the Act and § 408.3 on United States Department of Labor Form LM-4 entitled "Labor Organization Annual Report" in accordance with the instructions accompanying such form and constituting a part thereof.

29 C.F.R. § 403.6 provides, in pertinent part:

Each individual required to sign a report under section 201(b) of the Act and under this part shall be personally responsible for the filing of such report . . . .

29 C.F.R. § 458.3 provides, in pertinent part:

The reporting provisions of parts 402, 403, and 408 of this chapter shall apply to labor organizations subject to the requirements of the CSRA . . . .

29 C.F.R. § 458.68 provides, in pertinent part:

     (a) Within twenty (20) days from the service of the complaint the respondent shall file an answer thereto with the Chief Administrative Law Judge and shall serve a copy on all parties. . . .
     (b) Failure to file an answer to or plead specifically to any allegation in the complaint shall constitute an admission of such allegation.

29 C.F.R. § 458.71 provides:

The admission of all the material allegations of fact in the complaint shall constitute a waiver of hearing. Upon such admission, the Administrative Law Judge without further hearing shall prepare his recommended decision and order in which he shall adopt as his proposed findings of fact the material facts alleged in the complaint.

29 C.F.R. § 458.92 provides, in pertinent part:

When remedial action is ordered, the respondent shall report to the Assistant Secretary, within a specified period, that the required remedial action has been effected. When the Assistant Secretary finds that the required remedial action has not been effected, he shall refer the matter for appropriate action to the Federal Labor Relations Authority (in the case of labor organizations covered by the CSRA) . . . .

Footnote * for 60 FLRA No. 47 - Authority's Decision

   Pertinent laws and regulations are set forth in the appendix to this decision.