DEPARTMENT OF HEALTH AND HUMAN SERVICES PUBLIC HEALTH SERVICE INDIAN HEALTH SERVICE STANDING ROCK PUBLIC HEALTH SERVICE HOSPITAL, FORT YATES, NORTH DAKOTA and LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 580, AFL-CIO
|DEPARTMENT OF HEALTH AND HUMAN SERVICES PUBLIC HEALTH SERVICE INDIAN HEALTH SERVICE STANDING ROCK PUBLIC HEALTH SERVICE HOSPITAL, FORT YATES, NORTH DAKOTA Respondent and||
Case No. CH-CA-00693
|LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 580, AFL-CIO Charging Party|
John F. Gallagher, Esquire For the General Counsel Before: SUSAN E. JELEN Administrative Law Judge
On July 20, 2001, the Regional Director for the Chicago Region of the Federal Labor Relations Authority (FLRA) issued a Complaint and Notice of Hearing which was duly served by certified mail upon the named Respondent. The Complaint alleged that the Department of Health and Human Services, Public Health Service, Indian Health Service, Standing Rock Public Health Service Hospital, Fort Yates, North Dakota (herein called Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1) and (5), by unilaterally implementing a housing rental rate increase affecting employees represented by the Laborers' International Union of North America, Local 580, AFL-CIO (herein called Union), without providing the Union with notice and opportunity to negotiate over this change to the extent required by the Statute. Further the complaint alleges that the Union requested Respondent to negotiate concerning the above change on August 18, 2000 and that the Respondent failed to respond to the Union's request to negotiate. A hearing was scheduled for December 11, 2001 in Bismarck, North Dakota.
The Complaint specifically advised the Respondent that an answer
must be filed "no later than August 14, 2001" and that "a failure
to file an answer or respond to any allegation of this complaint
will constitute an admission. See 5 C.F.R. § 2423.20(b)."
Respondent did not file an answer, either in person or by mail,
within the required period or at any time thereafter.
Since Respondent failed to answer the instant Complaint, Counsel
for the General Counsel filed a Motion for Summary Judgement on
September 17, 2001. Respondent also failed to file any response to
the General Counsel's Motion for Summary Judgement within the 5 day
time period provided for in the Regulations. See 5 C.F.R. §
No answer was received from the Respondent nor has the
Respondent acknowledged receipt of any of the above-mentioned
documents. Accordingly, Respondent has admitted all of the
allegations of the Complaint. Department of Veterans Affairs
Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1594
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. . . . Absent a showing of good cause to the contrary, failure to file an answer or respond to any allegation shall constitute an admission.
In this case the Respondent has not filed an answer as required by the Regulations. Furthermore, Respondent has not filed any response to the Motion for Summary Judgement. Accordingly, there are not disputed factual or legal issues in this case.
Consequently, it can only be found that the Respondent has admitted that it implemented a housing rental rate increase affecting bargaining unit employees represented by the Union, without providing the Union with notice and an opportunity to bargain over the change. Further Respondent has admitted that it did not respond to the Union's August 18, 2000 request to negotiate. Thus, Respondent violated section 7116(a)(1) and (5) of the Statute as alleged.
Counsel for the General Counsel proposed a recommended remedy requiring the Respondent to rescind the increase in rents; to effect a further decrease in rental rates charged to unit employees for a period of time necessary to offset the difference between the unlawfully implemented rental increase and the former rents until such time as the effected employees have been made whole; to notify and, upon request, negotiate with the Union concerning any proposed change in rental rates to the extent required by the Statute and to post an appropriate Notice To All Employees signed by the Director, Indian Health Service, Standing Rock Public Health Service Hospital, Fort Yates, North Dakota. It is noted that this issue was recently litigated in Department of Health and Human Services, Public Health Service, Indian Health Service, Quentin N. Burdick Memorial Health Care Facility, Belcourt North Dakota, OALJ 01-38, CH-CA-00465 (June 20, 2001)(exceptions pending before the Authority) and a similar remedy was recommended by the Administrative Law Judge. Under the circumstances of this case, it is found that the proposed remedy does effectuate the purposes and policies of the Statute.
Accordingly, it is recommended that the Authority grant the General Counsel's Motion for Summary Judgement and issue the following 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 Department of Health and Human Services, Public Health Service, Indian Health Service, Standing Rock Public Health Service Hospital, Fort Yates, North Dakota, shall:
1. Cease and desist from:
(a) Failing to give notice and refusing to bargain with the Laborers' International Union of North America, Local 580, AFL-CIO, concerning the increase in rents that it charged unit employees beginning March 12, 2000.
(b) Unilaterally implementing changes in workin