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DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER, PHOENIX, ARIZONA AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2382, AFL-CIO

 

 

FEDERAL LABOR RELATIONS AUTHORITY              OALJ 22-03

         Office of Administrative Law Judges

                    WASHINGTON, D.C. 20424

 

      

 

DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER, PHOENIX, ARIZONA

 

                    RESPONDENT

 

AND

 

 

 

 

 

 

Case No. DE-CA-20-0141

 

 

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES,

LOCAL 2382, AFL-CIO

           

                    CHARGING PARTY

 

                              

 

Adam Johnson

               For the General Counsel

 

Erica Hockings

                For the Respondent

 

Joshua Klinger

                For the Charging Party

 

Before:    DAVID L. WELCH

                Chief Administrative Law Judge

 

 

DECISION ON MOTION FOR SUMMARY JUDGMENT

 

            On August 11, 2021, the Regional Director of the Denver Region of the Federal Labor Relations Authority (Authority) issued a Complaint and Notice of Hearing in this matter, alleging that the Department of Veterans Affairs (VA), Medical Center, Phoenix, Arizona (the Respondent), violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to comply with a final and binding arbitration award.  The Complaint was faxed to the Respondent’s designated representative, Erica Hockings, Department of Veterans Affairs, Phoenix VA Health Care System, 650 E. Indian School Road (Mail Code 05C8), Phoenix, Arizona 85012, fax:  (602) 222-6554.  The Respondent failed to file an Answer to the Complaint.

 

            On September 16, 2021, Counsel for the Acting General Counsel (GC) filed a Motion for Summary Judgment, based on the fact that the Respondent failed to file an Answer to the Complaint, arguing the Respondent had admitted all allegations of the Complaint.  Accordingly, the GC asserted that there were no factual or legal issues in dispute, and the case was ripe for summary judgment in its favor.  The Respondent has not filed a response to the Motion for Summary Judgment.

 

DISCUSSION OF MOTION FOR SUMMARY JUDGMENT

 

            Section 2423.20(b) of the Authority’s 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 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 answers and other required documents.  See, e.g., §§ 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, persons to whom it must be sent, and references to the applicable regulations.  The plain language of the notice leaves no doubt that the 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. EPA, 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 its failure to do so.  See, e.g., U.S. Dep't of Transp., Fed. Aviation Admin., Hous., Tex., 63 FLRA 34, 36 (2008); U.S. Dep't of Veterans Affairs Med. Ctr., Kan. City, Mo., 52 FLRA 282, 284 (1996) and the cases cited therein.  Moreover, after the GC 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.  In these circumstances, § 2423.20(b) clearly requires that the Respondent’s failure to file an Answer be treated as an admission of each of the allegations of the Complaint.  Accordingly, there are no disputed factual issues in this case, and summary judgment against the Respondent is justified.  Therefore, the GC’s Motion for Summary Judgment is granted, and the hearing scheduled for January 4, 2022, is vacated.

 

            Based on the existing record, the undersigned makes the following findings of fact, conclusions of law, and recommendations.

 

FINDINGS OF FACT

  1. The American Federation of Government Employees, Local 2382, AFL-CIO (the Union) filed the charge in this proceeding on February 5, 2020, and a copy was served on the Respondent.
  2. The Respondent is an agency within the meaning of § 7103(a)(3) of the Statute.
  3. The American Federation of Government Employees, AFL-CIO (AFGE) is a labor organization within the meaning of § 7103(a)(4) of the Statute and is the certified exclusive representative of nationwide consolidated units of VA employees, which includes employees of the Respondent (the unit).
  4. The Union is an agent of AFGE for the purpose of representing the unit of employees employed at Respondent.
  5. At all times material, the following individual held the position opposite her name and has been a supervisor or management official of Respondent within the meaning of § 7103(a)(10) and (11) of the Statute and an agent of Respondent acting upon its behalf:

Erica Hockings     Supervisory Employee/Labor Relations HR Specialist

  1. James Anderson (Anderson) is an employee under § 7103(a)(2) of the Statute and is in the unit described in paragraph 3.
  2. The Union and the Respondent are parties to a collective-bargaining agreement covering employees in the bargaining unit described in paragraph 3.
  3. On March 18, 2019, Arbitrator Lou Chang issued a decision and award finding that Respondent violated the parties’ collective-bargaining agreement described in paragraph 7.[1]
  4. Arbitrator Chang directed in his award that Respondent reinstate Anderson without loss of seniority, with back pay and restoration of any benefits lost as a result of the Respondent’s wrongful actions.
  5. No exceptions to the award described in paragraphs 8 and 9 were filed with the Authority.
  6. Since on or about March 18, 2019, Respondent has been failing to perform the acts ordered by Arbitrator Change described in paragraph 9.
  7. By the conduct in paragraph 11, Respondent has been failing and refusing to comply with a final and binding arbitration award as required by §§ 7121 and 7122 of the Statute.
  8. By the conduct described in paragraphs 11 and 12, Respondent has been violating § 7116(a)(1) and (8) of the Statute.

CONCLUSIONS OF LAW

By the conduct set forth in Case No. DE-CA-20-0141, which contains allegations to which the Respondent has failed to file an Answer or otherwise demonstrate good cause for such failure, the Respondent admits it failed and refused to comply with Arbitrator Chang’s final and binding arbitration award.  Therefore, the Respondent failed to comply with §§ 7121 and 7122 of the Statute and thereby violated § 7116(a)(1) and (8) of the Statute.

REMEDY

As a remedy to the conduct alleged in Case No. DE-CA-20-0141, the Respondent is ordered to cease and desist from failing and refusing to comply with Arbitrator Chang’s award, to cease and desist from interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Statute, to comply with Arbitrator Chang’s award, and to post and disseminate a copy of the attached notice.

ORDER

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

  1.  Cease and desist from:

 

(a) Failing and refusing to comply with the Final Award of Arbitrator Lou Chang issued March 18, 2019.

 

(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.

 

  1. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Comply with the Final Award of Arbitrator Lou Chang issued on March 18, 2019, by ensuring that James Anderson is made whole by awarding him back pay and restoration of any benefits lost as a result of the Respondent’s wrongful actions.

 

(b) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 2382, AFL-CIO (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 Medical Center Director and shall be posted and maintained for 60 consecutive days in 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 other material.  In addition to the physical posting of paper notices, the Notice to Employees shall be distributed by email to bargaining unit employees represented by the Union.

 

(c) Pursuant to Section 2423.41(e) of the Authority’s Rules and Regulations, notify the Regional Director, Denver 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 29, 2021

                                                           

             DAVID L. WELCH

             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, Medical Center, Phoenix, Arizona, violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

 

WE WILL NOT fail or refuse to comply with the Final Award of Arbitrator Lou Chang issued on March 18, 2019.

 

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of the rights assured by the Statute.

 

WE WILL comply with the Final Award of Arbitrator Lou Chang issued on March 18, 2019 by ensuring that James Anderson is made whole by awarding him back pay and restoration of any benefits lost as a result of the Respondent’s wrongful actions.

 

_______________________________________________________

(Agency/Activity)

 

 

Dated:  ___________________     By:  ________________________________________

                                                                     (Signature)                                   (Title)

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, Denver Region, Federal Labor Relations Authority, whose address is:  1244 Speer Blvd., Suite 446, Denver, CO 80204 and whose telephone number is: (303) 844-5224.

 

 

 

 

 

 

 

[1] Paragraph 8 of the Complaint erroneously references paragraph 6 of the Complaint.  The undersigned has corrected the error here.