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DEPARTMENT OF VETERANS AFFAIRS, ATLANTA VETERANS AFFAIRS MEDICAL CENTER, DECATUR, GEORGIA AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2778

          FEDERAL LABOR RELATIONS AUTHORITY         OALJ 15-53
                                                           Office of Administrative Law Judges
                                                                        WASHINGTON, D.C.
 
 
 
 
DEPARTMENT OF VETERANS AFFAIRS
ATLANTA VETERANS AFFAIRS MEDICAL CENTER, DECATUR, GEORGIA
 
                                                 RESPONDENT
 
 
 
 
AND
 
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2778
 
                                               CHARGING PARTY
Case No. AT-CA-15-0423                       
 
 
Carrie L. McCready
               For the General Counsel
 
Kevin L. Jones
                For the Respondent
 
Gary Harding
                For the Charging Party
 
Before:    CHARLES R. CENTER     
                Chief Administrative Law Judge
 
 
DECISION ON MOTION FOR SUMMARY JUDGMENT
 

            On August 14, 2015, the Regional Director of the Atlanta Region of the Federal Labor Relations Authority (FLRA/Authority), issued a Complaint and Notice of Hearing, alleging that the Department of Veterans Affairs, Atlanta Veterans Affairs Hospital*, Decatur, Georgia (Respondent), violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (Statute).  The Complaint alleged that the Respondent failed to respond to the Union request to bargain over a local supplemental agreement.

            The Complaint indicated that a hearing on the allegations would be held on November 3, 2015, and advised the Respondent that an Answer to the Complaint was due no later than September 8, 2015.  The Complaint was served by first class mail on Respondent’s agent, Kevin L. Jones, Chief, Human Resources Management Service, Department of Veterans Affairs, Atlanta Veterans Affairs Medical Center, 1670 Clairmont Road, Decatur, GA 30033, and the Respondent failed to file an Answer to the Complaint.

             On September 14, 2015, Counsel for the 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 3, 2015, in Atlanta, Georgia, is 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 and summary judgment in favor of the General Counsel is 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 Hospital, Decatur, Georgia (Respondent) is an             agency under § 7103(a)(3) of the Statute.
 
2.               The American Federation of Government Employees (AFGE) 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.               AFGE Local 2778 (Union) is an agent of AFGE for the purpose of representing employees within the            unit described in paragraph 2.
 
4.               The Union filed the charge in Case No. AT-CA-15-0423 with the Atlanta Regional Director on April             17, 2015.  The Union filed an amended charged on August 3, 2015.
 
5.               Copies of the charge and amended charge were served on the Respondent.
 
6.               At all material times, Gary Harding held the position of AFGE National Representative.
 
7.               At all material times, Harding represented the Union for purposes of local bargaining.
 
8.               At all material times, Kevin Jones held the position of Human Resources Chief for the Respondent, was        a supervisor or management official of the Respondent within the meaning of §§ 7103(a)(10) and (11)          of the Statute and an agent of the Respondent, acting upon its behalf.
 
9.               In early 2015, Harding verbally requested that Jones bargain over a local supplemental agreement.
 
10.            Jones did not respond to Harding’s request to bargain.
 
11.            By the conduct described in paragraphs 9 and 10, the Respondent committed an unfair labor practice in         violation of § 7116(a)(1) and (5) of the Statute.
 
 
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 respond to the Union request to bargain a local supplemental agreement.  Therefore, the Respondent violated § 7116(a)(1) and (5) of the Statute.
 
            As a remedy, the Respondent is ordered to cease and desist from failing to respond to a Union request to bargain a local supplemental agreement, to post a notice of the violation using bulletin boards and electronic mail, and to respond to the Union’s request to bargain a local supplemental agreement.
 
 
ORDER
 

            Pursuant to § 2423.41(c) of the Authority’s Rules and Regulations and § 7118(a)(7) of the Federal Service Labor-Management Relations Statute (Statute), the Department of Veterans Affairs, Atlanta Veterans Affairs Medical Center, Decatur, Georgia, shall:

          1.      Cease and desist from:

                   (a) Failing to respond to a demand to bargain over a local supplemental agreement.

                   (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)  To respond to the American Federation of Government Employees, Local 2778’s request to bargain over a local supplemental agreement.

                   (b) 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, they shall be signed by the Director of the Veterans Affairs Medical Center, Decatur, Georgia, and shall be posted and maintained for sixty (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) 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.

                  (d) 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 thirty (30) days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, D.C., September 22, 2015

   

                                                                             _________________________________                                                                                                                                 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, Atlanta 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 fail to respond to a request to bargain a local supplemental agreement with the American Federation of Government Employees, Local 2778.

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.

 WE WILL bargain with the Union concerning the work schedules of dispatchers at the Fort McPherson Clinic upon request.

 
                                                                              ______________________________________________
                                                                                                          (Agency/Respondent)
 
                                                                            
 
Dated: ___________________                    By: _________________________________________________
                                                                             (Signature)                                                                     (Title)
 
 
This Notice must remain posted for sixty (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.
 

 


* To note and clarify the Respondent’s proper, most recognized name, I have changed the case caption/name in my decision to read as the Atlanta Veterans Affairs Medical Center, instead of “Hospital” as listed on documents and pleadings filed by the Charging Party and the General Counsel.