FEDERAL LABOR RELATIONS AUTHORITY OALJ 15-03
Office of Administrative Law Judges
DEPARTMENT OF VETERANS AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 2102
Case No. AT-CA-14-0301
Carrie L. McCready
For the General Counsel
Kevin L. Jones
For the Respondent
For the Charging Party
Before: CHARLES R. CENTER
Chief Administrative Law Judge
DECISION ON MOTION FOR SUMMARY JUDGMENT
On August 21, 2014, the Regional Director of the Atlanta Region of the Federal Labor Relations Authority (Authority/FLRA), issued a Complaint and Notice of Hearing, alleging that the Department of Veterans Affairs, Veterans Affairs Medical Center, Decatur, Georgia (Respondent), violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (Statute). The Complaint alleged that the Respondent bypassed the Union in violation of 5 U.S.C. § 7116(a)(1) and (5), and interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by § 7102 of the Statute in violation of 5 U.S.C. § 7116(a)(1).
The Complaint indicated that a hearing on the allegations would be held on November 6, 2014, and advised the Respondent that an Answer to the Complaint was due no later than September 15, 2014. The Complaint was served by first class mail on Respondent’s agent, Kevin L. Jones, Acting Chief, Human Resources Management Service, Department of Veterans Affairs, Veterans Affairs Medical Center, 1670 Clairmont Road, Decatur, GA 30033, and the Respondent failed to file an Answer to the Complaint.
On October 17, 2014, Counsel for the FLRA General Counsel (GC) filed a Motion for Summary Judgment based upon the Respondent’s failure to file an Answer to the Complaint, contending that by application of 5 C.F.R. § 2423.20(b), the Respondent admitted all of the allegations set forth in the Complaint. Accordingly, the GC contends that there are no factual or legal issues in dispute and summary judgment pursuant to 5 C.F.R. § 2423.27(a) is proper. The Respondent failed to file a response to the motion for summary judgment. As I have determined that summary judgment in this matter is proper, the hearing scheduled for November 6, 2014, in Atlanta, Georgia, is hereby cancelled.
DISCUSSION OF MOTION FOR SUMMARY JUDGMENT
The relevant portion of the Authority’s Rules and Regulations provides:
(b) Answer. Within 20 days after the date of service of the complaint . . .
the Respondent shall file and serve, . . . an answer with the Office of
Administrative Law Judges. The answer shall admit, deny, or explain each
allegation of the complaint. . . . Absent a showing of good cause to the contrary, failure to file an answer or respond to any allegation shall constitute an admission. . . .
The regulations also explain how to calculate filing deadlines and how to request extensions of time for filing the required documents. See, e.g., sections 2429.21 through 2429.23.
In the text of the Complaint, the Regional Director provided the Respondent with detailed instructions concerning the requirements for its Answer, including the date on which the Answer was due, the persons to whom it must be sent, and references to the applicable regulations. The plain language of the notice leaves no doubt that Respondent was required to file an Answer to the complaint.
Moreover, the Authority has held, in a variety of factual and legal contexts, that parties are responsible for being aware of the statutory and regulatory requirements in proceedings under the Statute. U.S. Envtl. Prot. Agency, Envtl. Research Lab., Narragansett, R.I.,49 FLRA 33, 34-36 (1994) (answer to a complaint and an ALJ’s order); U.S. Dep’t of VA Med. Ctr., Waco, Tex., 43 FLRA 1149, 1150 (1992) (exceptions to an arbitrator’s award); U.S. Dep’t of the Treasury, Customs Serv., Wash., D.C.,37 FLRA 603, 610 (1990) (failure to file an answer due to a clerical error is not good cause sufficient to prevent a summary judgment).
In this case the Respondent has not filed an Answer, nor has it demonstrated any “good cause” for the failure to do so. In U.S. Dep’t of Transp., FAA, Hous., Tex.,63 FLRA 34, 36 (2008), the Authority held that the agency’s misfiling of a complaint, resulting in its filing an answer two weeks after the deadline, did not demonstrate “extraordinary circumstances” that might constitute “good cause” for the late filing. See also U.S. Dep’t of VA Med. Ctr., Kan. City, Mo., 52 FLRA 282, 284 (1996) and the cases cited therein. Moreover, after the General Counsel filed its motion for summary judgment, the Respondent did not file a response or otherwise offer any explanation for its failure to answer the Complaint. Given the Respondent’s failure to respond to the complaint or the motion for summary judgment, and the absence of good cause for such failures, application of the admission provision of 5 C.F.R. § 2423.20(b) is appropriate. Thus, Respondent has admitted each of the allegations set forth in the Complaint. Accordingly, there are no disputed factual issues in this case, and summary judgment in favor of the General Counsel is hereby granted. Based on the existing record, I make the following findings of fact, conclusions of law, and recommendations:
FINDINGS OF FACT
1. The Department of Veterans Affairs, Veterans Affairs Medical Center, Decatur, Georgia (Respondent) is an agency under § 7103(a)(3) of the Statute.
2. The Council of Veterans Administration Locals, National Federation of Federal Employees, Independent (NFFE) is a labor organization under § 7103(a)(4) of the Statute and is the exclusive representative of a unit of employees appropriate for collective bargaining at the Respondent.
3. The National Federation of Federal Employees, Local 2102 (Union) is an agent of NFEE for the purpose of representing Respondent’s employees within the unit described in paragraph 2.
4. The Union filed the charge in Case No. AT-CA-14-0301 with the Atlanta Regional Director on April 23, 2014.
5. A copy of the charge was served on the Respondent.
6. At all material times, Dr. Vijay Varma occupied the position of Chief of Pathology and Laboratory Services with the Respondent and has been a supervisor or management official of Respondent within the meaning of
5 U.S.C. § 7103(a)(10) and (11), as well as an agent acting on behalf of the Respondent.
7. On September 30, 2013, the Respondent, by Varma, issued a proposed suspension to a bargaining unit employee.
8. Thereafter, the Union, by its Vice President, represented the employee with respect to the matter.
9. On November 26, 2013, the Respondent, by Varma met with the employee and issued him a final decision regarding the suspension and conducted the meeting without affording the Union an opportunity to attend.
10. By the conduct described in paragraph 9, the Respondent bypassed the Union in violation of 5 U.S.C. § 7116(a)(1) and (5).
11. By the conduct described in paragraph 9, the Respondent interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in § 7102 of the Statute in violation of 5 U.S.C. § 7116(a)(1).
CONCLUSIONS OF LAW
By the conduct described in the facts set forth above as drawn from the Complaint containing allegations to which the Respondent failed to file an Answer or otherwise demonstrate good cause for such failure, the Respondent admits that it did not give the employee the right to be represented and did not give the Union an opportunity to represent the employee. Therefore the Respondent violated § 7116(a)(1) and (5) of the Statute.
As a remedy, the Respondent is hereby ordered to cease and desist from delivering final disciplinary decisions directly to a bargaining unit member who is represented by the Union without notifying the Union and to post a notice of the violations.
Pursuant to § 2423.41(c) of the Authority’s Rules and Regulations and § 7118 of the Federal Service Labor-Management Relations Statute (Statute), the Department of Veterans Affairs, Veterans Affairs Medical Center, Decatur, Georgia, shall:
1. Cease and desist from:
(a) Delivering final disciplinary decisions directly to bargaining unit members who are represented by the Union in the disciplinary matter without notifying the Union.
(b) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Post at its facilities where bargaining unit employees represented by the
Union are located, 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 Director of the Veterans Affairs Medical Center, Decatur, Georgia, 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. In addition to physical posting of paper notices, Notices shall be distributed electronically, such as by email, posting on an intranet or internet site, or other electronic means, if such are customarily used to communicate with employees
(b) Pursuant to § 2423.41(e) of the Authority’s Rules and Regulations, notify the
Regional Director, Atlanta Region, 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, D.C., October 22, 2014
CHARLES R. CENTER
Chief Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of Veterans Affairs, Veterans Affairs Medical Center, Decatur, Georgia, violated the Federal Service Labor-Management Relations Statute (Statute), and has ordered us to post and abide by this Notice.
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT deliver final disciplinary decisions directly to bargaining unit members represented by the Union in the disciplinary matter without notifying the Union.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Statute.
Dated: ___________________ By: ____________________________________
This 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 its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: 225 Peachtree Street, Suite 1950, Atlanta, GA 30303, and whose telephone number is: (404) 331-5300.