OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION, GAINESVILLE AUTOMATED FLIGHT SERVICE STATION, PENSACOLA FLIGHT SERVICE STATION, PENSACOLA, FLORIDARespondent
andNATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS
Case No. AT-CA-30113
Linda J. Norwood, Esquire For the General Counsel
Before: WILLIAM B. DEVANEY Administrative Law Judge
Statement of the Case
The Complaint and Notice of Hearing in this case issued on
March 29, 1994, and stated, in part that an answer filed by mail
must be mailed and postmarked not later than April 25, 1994. On
June 10, 1994, General Counsel, pursuant to § 2423.22(a) of the
Authority's Rules and Regulations, 5 C.F.R. § 2423.22(a), filed
with the Regional Director a Motion For Summary Judgment asserting
that ". . . Respondent has not answered the allegations of the
Complaint in this matter." (General Counsel's Motion, p. 4). By
Order also dated June 10, 1994, the Regional Director, pursuant to
§ 2423.22(b) of the Authority's Rules and Regulations, 5 C.F.R. §
2423.22(b), referred General Counsel's Motion For Summary Judgment
to the Chief Administrative Law Judge who, by Order dated June 17,
1994, gave notice of the referral of the Motion For Summary
Judgment for decision and gave notice to all parties that, "Any
pleadings or briefs filed by the parties . . . must be filed in
this office by July 7, 1994. The record will then be closed. . . ."
Respondent on June 16, 1994, had mailed, to the Regional Director
and to the Office of Administrative Law Judges, "Exception To The
General Counsel's Memorandum In Support Of Its Motion For Summary
Judgment", received by the Office on June 20, 1994. No further
response was filed, the record was closed and the Motion was duly
referred to the undersigned for decision.
1. Contrary to the assertion of General Counsel in her
Motion, an Answer was filed, dated April 5, 1994, and received by
the Office of Administrative Law Judges on April 11, 1994. Copies
also were shown as having been mailed to Assistant General Counsel
David L. Feder and to the Charging Party.
2. In its Answer, Respondent asserts that the "agency"
alleged in Paragraph 3 of the Complaint is now closed.
3. In its Answer, Respondent asserts that,
". . . Mr. Nielson was not the facility represen-tative (FACREP) at the Pensacola FSS.
Mr. Warren Poole was the FACREP and Mr. Alton Bostic was the Assistant FACREP.
Both agreed to the change in procedure. Both substance and I&I bargaining were
completed even though the contract in place at that time had an explicit waiver requiring
only 'consul-tation.' (See attached Article 72.)
4. In its Answer, Respondent further asserts,
". . . I do not recall any investigation being done by the FLRA. Had there been, the issue
of FACREP vs. Hub representative could have been addressed, thus making clear that
bargaining had been done with the appropriate union officials and agreement had been
reached. Also, the 'consultation' article could have been brought forward." (Respondent's
Respondent's failure to file its Answer with the Regional
Director is inexcusable. Not only did Respondent fail to comply
with the quite specific language of § 2423.13(a) of the Authority's
Rules and Regulations, 5 C.F.R. § 2423.13(a), but it obviously
ignored the equally specific instruction set forth in the
Complaint, i.e., ". . . the Respondent must
file an original and 4 copies of this answer with the Atlanta
Regional Director at the address below." (Complaint, p. 3).
Nevertheless, Respondent did file a timely Answer with the
Authority's Office of Administrative Law Judges, with copies shown
to the Office of the General Counsel and to the Charging Party.
Allegations of an Answer are not proof of the truth of the
allegations; however, Respondent in its Answer asserts,
inter alia, that:
(a) the activity at which the asserted § 16(a)(1) and (5)
violation, namely that, a union representative must, ". . . obtain
prior approval . . . to use official time. . . .", is now closed;
(b) the person named in Paragraph 11 of the Complaint, Lars M.
Nielson, was not the facility representative; and (c) that the
Pensacola FSS representatives had agreed to the change in procedure
and both substance and I&I bargaining had been completed. The
Answer, timely filed with this Office, though not filed at all with
the Regional Director, raises issues which convincingly demonstrate
that it would not effectuate the purposes and policies of the
Statute to grant General Counsel's Motion For Summary Judgment. The
issues raised by Respondent's Answer require resolution in a
hearing on the merits. In so concluding, the blatant failure and
refusal to properly serve the Answer on the Regional Director is
not condoned and except for having timely filed an Answer with the
Authority, albeit not the Regional Director, which raises
substantial issues which require resolution, the mere filing of an
Answer with the Authority, but not with the Regional Director,
would constitute no justification to deny summary judgment and
summary judgment may be granted where the Answer is not filed with
the Regional Director.
Accordingly, because it would not, in the particular
circumstances of this case, effectuate the purposes and policies of
the Statute to grant General Counsel's motion, it is hereby:
ORDERED, that General Counsel's Motion For Summary Judgment
in Case No. AT-CA-30113, be, and the same is hereby, denied.
WILLIAM B. DEVANEY
Administrative Law Judge
Issued: August 31, 1994