Office of Administrative Law Judges
WASHINGTON, D.C.
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AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2562 Respondent and
Charging Party and HAYDEN WALKER Charging Party |
Case No. DA-CO-90593 |
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and Charging Party and
Charging Party |
Case No. DA-CO-90635 |
Charles M. de Chateauvieux For the General Counsel
N. Marc Greene For the Respondent
Before: Eli Nash, Jr. Administrative Law Judge
On September 30, 1999, the Regional Director for the Dallas
Region of the Federal Labor Relations Authority (FLRA), issued a
Consolidated Complaint and Notice of Hearing which was duly served
by certified mail upon the named Respondent. The consolidated
complaint alleged that the Respondent violated section 7116(c) of
the Federal Service Labor-Management Relations Statute (the
Statute), by its refusal to allow the Charging Parties to join the
Union without justification.(1)
The consolidated complaint afforded Respondent the requisite
twenty (20) days, until October 25, 1999, to file an Answer
pursuant to section 2423.13(a) of the Authority's Rules and
Regulations.(2) Respondent did not
file an Answer within the required period.
On October 6, 1999, the Chief Administrative Law Judge issued
an Order and Notice of Time for Prehearing Conference Call pursuant
to section 2423.24 of the Authority's Rules and Regulations.
Counsel for the General Counsel submitted its Prehearing Disclosure
documents on November 30, 1999.
On December 8, 1999, during the Prehearing Conference call,
Respondent through its Acting President N. Marc Greene,
acknowledged that Respondent had not filed an Answer to the
consolidated complaint. Furthermore, Respondent admitted that it
had not filed any Prehearing Disclosures pursuant to section
2423.23 of the Authority's Rules and Regulations.
Counsel for the General Counsel orally moved for summary
judgment because of Respondent's failure to file an Answer and to
comply with the Authority's revised Rules and Regulations
concerning Prehearing Disclosure. The undersigned took the motion
under advisement and asked for a written motion for summary
judgement from Counsel for the General Counsel which would allow
the Respondent an opportunity to respond to the General Counsel's
motion. Counsel for the General Counsel filed its written Motion
for Summary Judgment dated December 20, 1999. The Respondent filed
its response to that motion dated December 25, 1999.
Since the Respondent failed to answer the consolidated
complaint and failed to follow the Prehearing Disclosure Rules and
Regulations of the Authority, it is recommended that the General
Counsel's Motion for Summary Judgment be granted for the following
reasons:
Findings of Fact
The uncontested facts establish the following:
On or about May 19, 1999(3),
unit employees' E.J. Honeycutt and Hayden Walker submitted Requests
For Payroll Deductions for Labor Organization Dues (Form SF-1187)
requesting to join the Union. Sometime around May 21, unit employee
Frank James submitted a Form SF-1187 requesting to join the Union.
Thereafter, around May 27, Honeycutt, Walker and James received a
letter from Union President Samuel Craig stating that Union
membership was a privilege and that the Union was holding their
applications in abeyance until it could get a more precise meaning
of Article III, Section 2 of the American Federation of Government
Employees National Constitution and Article III, Section I of the
Local's Bylaws and Public Law No. 95-454. Accompanying these
letters, were their Form SF-1187s, with the word "void" written
across the forms.
Sometime around June 1, employee Alan Rogers submitted a Form
SF-1187 requesting to join the Union. Rogers' application received
the identical treatment as the three employees who applied in May.
Thus, Craig returned a voided application form to Rogers under the
identical cover letter that had been sent to the other applicants.
Around the middle of July, after unfair labor practice charges were
filed with the FLRA, each employee received a letter from Craig
indicating that he had talked to the Union's National Office and
General Counsel about the matter and he had decided to let the
employees join the Union and vote in the Union Officer election
scheduled to be held in the last week of July. It appears however,
that because these employees were not allowed to join the Union
when they originally applied, they would be prevented from running
for Union office in 2000 because they lacked sufficient time as
Union members.
Section 2423.20(b) of the Authority's Rules and Regulations, 5
C.F.R. § 2423.20(b), absent a showing of good cause, provides in
pertinent part:
[F]ailure to file an answer or to respond to any allegation
shall constitute an admission.
In this case, Respondent failed to file an Answer by October
25, 1999, as required by section 2423.13(a) of the Authority's
Rules and Regulations, even though it was specifically notified of
such requirements in the consolidated complaint. Respondent admits
that the consolidated complaint was received in the Union's office
on October 8, but avers that this certified mail went unopened in
the Union's office for almost two months until December. The reason
that the certified mail was unopened, according to Respondent, was
because Union President Craig had a heart attack on October 9 or
the day after the certified mail was received. Craig has been on
sick leave since that time. Since there is no evidence that Craig
was the only Union official responsible for answering mail
or other inquiries at the Union's office, I find this insufficient
reason to establish "good cause" for Respondent's failure to file
an answer or to excuse the filing of an answer in the instant case.
Although Respondent denied "all allegations" in its response to the
motion for summary judgment, I find that its failure to file an
answer requires a finding that it has already admitted to all the
allegations in the consolidated complaint.(4) Therefore, since no genuine issue of
material fact exists, disposition by summary judgment is
proper.(5)
Based upon the admitted facts contained in the consolidated
complaint, I find that the Respondent, through its President,
Samuel Craig refused to allow the Charging Parties to join the
Union without justification. Respondent's articulated reasons for
denying membership to the Charging Parties was that Union
membership is a privilege and that the Union would hold their
applications in abeyance until it could get a more precise meaning
of Article III, Section 2 of the American Federation of Government
Employees National Constitution and Article III, Section I of the
Local's Bylaws and Public Law No. 95-454. Section 7116(c) of the
Statute provides that it is an unfair labor practice for a union to
deny membership to a unit employee "except" for failure to meet
occupational standards uniformly required for admission or failure
to tender dues. In this case, Respondent's denial of membership
clearly was not based on either of the above reasons. Thus, it is
found that Respondent's actions in denying membership to the
Charging Parties herein constituted a violation of section 7116(c)
of the Statute.(6)
Accordingly, it is recommended that the Authority grant the
General Counsel's Motion for Summary Judgment and issue the
following Order:
ORDER
Pursuant to section 2423.41(c) of the Authority's Rules and
Regulations and section 7118 of the Statute, it is hereby ordered
that the American Federation of Government Employees, Local 2562,
Oklahoma City, Oklahoma, shall:
1. Cease and desist from:
(a) Denying membership to E.J. Honeycutt, Hayden
Walker, Frank James and Alan Rogers, or any other eligible employee
in the collective bargaining unit represented by the American
Federation of Government Employees, Local 2562, except for failure:
(1) to meet reasonable occupational standards uniformly required
for admission, or (2) to tender dues uniformly required as a
condition of acquiring and retaining membership.
(b) In any like or related manner, interfering with,
restraining, or coercing its members in the exercise of their
rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate
the purposes and policies of the Statute:
(a) Retroactively process the Request For Payroll
Deductions for Labor Organization Dues, Form SF-1187 of bargaining
unit employees E.J. Honeycutt, Hayden Walker, Frank James and Alan
Rogers and admit E.J. Honeycutt, Hayden Walker, Frank James and
Alan Rogers to membership in the American Federation of Government
Employees, Local 2562, effective the date they submitted their Form
SF-1187s, without any cost to the unit employees.
(b) Post at the business office of the American
Federation of Government Employees, Local 2562, and in normal
meeting places, including all places where notices to employees and
union members are customarily posted, 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 President
of the American Federation of Government Employees, Local 2562, 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.
(c) Pursuant to section 2423.41(e) of the Authority's
Rules and Regulations, notify the Regional Director, Dallas
Regional Office, 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, January 10, 2000.
__________________________
ELI NASH, JR.
Administrative Law Judge
NOTICE TO ALL EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the American Federation of Government Employees, Local 2562, has violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.
We Hereby Notify Our Members and Unit Employees that:
WE WILL NOT deny membership to E.J. Honeycutt, Hayden Walker, Frank
James and Alan Rogers, or any other eligible employee in the
collective bargaining unit represented by the American Federation
of Government Employees, Local 2562, except for failure: (1) to
meet reasonable occupational standards uniformly required for
admission, or (2) to tender dues uniformly required as a condition
of acquiring and retaining membership.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our members in the exercise of their rights
assured them by the Federal Service Labor-Management Relations
Statute.
WE WILL retroactively process the Request for Payroll Deductions
for Labor Organization Dues, Form SF-1187 of bargaining unit
employees E.J. Honeycutt, Hayden Walker, Frank James and Alan
Rogers and admit E.J. Honeycutt, Hayden Walker, Frank James and
Alan Rogers to membership in the American Federation of Government
Employees, Local 2562 effective the date they submitted their Form
SF-1187s, without any cost to these unit employees.
______________________________
(AFGE, Local 2562)
Dated: _______________By: ____________________________________
(Signature) (Title)
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 any of its provisions, they may communicate
directly with the Regional Director, Dallas Regional Office,
Federal Labor Relations Authority, whose address is: 525 Griffin
Street, Suite 926, Dallas, TX 75202, and whose telephone number is:
(214)767-6266.
1. Counsel for the General Counsel's Motion to Conform Pleading to Proof in this case, is Granted. Accordingly, paragraphs 14 and 15 of the consolidated complaint are amended to show that the charging parties were members of the bargaining unit represented by Respondent.
2. Although the Authority's Rules and Regulations were amended in certain respects effective October 1, 1997, references herein are to the Rules and Regulations which were in effect prior to those amendments and apply to the disposition of this case.
3. Unless otherwise noted, all dates are 1999.
4. Based on the foregoing, I deem it unnecessary to decide whether Respondent's failure to follow prehearing regulations constitutes an admission of the allegations in the consolidated complaint herein.
5. U.S. Environmental Protection Agency, Environmental Research Laboratory, Narragansett, Rhode Island, 49 FLRA 33, 41 (1994); U.S. Department of Treasury, Customs Service, Washington, DC and Customs Service, Region IV, Miami, Florida, 37 FLRA 603, 610 (1990).
6. American Federation of Government Employees, Local 2344, AFL-CIO, 45 FLRA 1004 (1992).