File 2: Opinion of Member Pope and ALJ's Decision

[ v59 p264 ]


Member Carol Waller Pope, dissenting in part:

      I agree with the majority that the Respondent's failure to file a timely answer to the complaint constitutes an admission of all of the facts alleged in the complaint. I also agree that 5 C.F.R. § 2429.5 precludes the Respondent from raising on exceptions any arguments that it could have raised, but failed to raise, below. However, for the following reasons, I believe that the majority errs in finding that: (1) the complaint is sufficient to allege a violation of the Statute; (2) the attachment to the Respondent's response to the motion for summary judgment constitutes the untimely answer to the complaint; and (3) summary judgment is appropriate.

      As for the first matter, I believe the complaint is defective on its face. In this regard, following are the relevant paragraphs of the complaint, in their entirety:

4. During all times pertinent to this complaint, Jennifer R. Lewis (Lewis or the Charging Party) was an employee under 5 U.S.C. § 7103(a)(2) and was in the bargaining unit [at FAA's Macon, Georgia location].
5. Lewis is not a dues-paying member of the Respondent.
. . . .
10. During the time period covered by this complaint, Hall was acting on behalf of the Respondent.
11. On or about January 2002, the Respondent, by Hall, in order to determine the watch schedule for the year, did not poll all of the bargaining unit employees at the Macon, Georgia location.
12. By failing to poll all of the bargaining unit members at the Macon, Georgia location, the Respondent violated its duty of fair representation set forth in 5 U.S.C. § 7114(b)(1).
13. By the conduct described in paragraphs 11 and 12, the Respondent committed an unfair labor practice in violation of 5 U.S.C. § 7116(b)(1) and (8).

      General Counsel (GC) Ex. 1(c) at 1-2 (Complaint).

      As plainly and unambiguously worded, the complaint alleges -- only -- that the Respondent violated its duty of fair representation by failing to poll all unit employees in determining watch schedules. Contrary to the majority, it is not "apparent" that the complaint alleges that "the Respondent violated its duty of fair representation by discriminating among unit employees based on whether or not they were union members, as demonstrated by its failure to poll a unit employee (the Charging Party) who was not a dues-paying member of the Respondent." Majority Opinion at 2. In fact, the only reference to membership in the Respondent is in paragraph 4, which states that the Charging Party is not a dues-paying member of the Respondent. However, the complaint does not allege that the Charging Party was not polled. Further, while the complaint alleges that not all unit employees were polled, it does not claim that unit employees were not polled based on union membership.

      Although the General Counsel may well have intended to construct a complaint alleging that the Respondent violated its duty of fair representation by failing to poll the Charging Party and other unit employees based on union membership, it did not do so. [n1] The majority's finding to the contrary results in an amendment to the complaint that was not sought by the General Counsel and to which the Respondent has been denied an opportunity to respond.

      Moreover, even if the complaint alleged that the Respondent failed to poll unit employees based on union membership, it is still insufficient to establish a violation. This is because unions are not required to poll all unit employees in all circumstances. See Nat'l Air Traffic Controllers Ass'n, MEBA/AFL-CIO, 55 FLRA 601, 605 (1999) (NATCA) (then-Member Cabaniss dissenting in part and Member Wasserman dissenting in part on other grounds) (union may exclude non-union members from poll where poll is used to determine union's positions in negotiations; also may exclude non-members from vote where decision-making authority has not been delegated to employees). Thus, determining whether or not a union's failure to poll all unit employees violates the Statute requires an assessment of the facts of the case -- and the necessary facts are not alleged in the complaint here. In this regard, the complaint alleges only that the Respondent and the Agency "are parties to a collective bargaining agreement[.]" Complaint, ¶8. The complaint does not allege that the Respondent was required to poll all unit employees because of the parties' agreement or any particular provision [ v59 p265 ] of it. Once again, the majority finds "apparent" something that is, in fact, completely missing from the complaint: an allegation that the Respondent had a duty to poll all unit employees to determine the watch schedule. [n2] And, in so doing, the majority once again deprives the Respondent of due process.

      Because the complaint does not allege discrimination or set forth factual allegations that would amount to a statutory violation, the Respondent's failure to file an answer to the complaint -- while constituting an admission of all of the factual allegations of the complaint -- does not support finding of a § 7114(a)(1) violation. See United States Army Aeromedical Ctr., Fort Rucker, Ala., 49 FLRA 361, 364 (1994) (Fort Rucker). [n3] 

      Second, the majority errs by declining to consider the Respondent's response to the General Counsel's motion for summary judgment. In so doing, the majority finds that the response constituted an untimely answer to the complaint and, as such, the arguments in it may not properly be considered. See Majority Opinion at 4 (citing Judge's Decision at 3). This ignores that the Respondent timely responded to the motion for summary judgment and, in that timely response, expressly disputed an issue of material fact. To be sure, the Respondent asserted in that response that it was unaware of its obligation to file an answer to the complaint, and the Respondent requested permission to file a "response to allegations in [the] complaint." See Exceptions, Attachment A at 1-2. That does not mean, however, that the response may be rejected as an untimely answer. [n4] In my view, the response is exactly what it purports to be: an attempt to dispute that the Respondent violated the Statute by failing to poll all unit members in determining the watch schedule. See id. By asserting that "polling was concluded when a majority of responses were in support of one proposed watch schedule" because "further polling would be futile and unnecessary," the response disputes a claim made by the General Counsel - for the first time in its motion for summary judgment - that the Respondent failed to poll the Charging Party because she was not a union member. Id. at 2. By refusing to consider the Respondent's response to the motion for summary judgment, after already effectively amending the complaint so that it alleges a violation in the first place, the majority acts unfairly.

      As for the third error, the majority finds that, even if the Respondent's response to the motion for summary judgment is considered, it fails to satisfy 5 C.F.R. § 2423.27(b). According to the majority, the response is a "mere allegation" that does not contain any "document, affidavits, applicable precedent or other appropriate material." Majority Opinion at 5. In so finding, the majority holds the Respondent to a higher evidentiary standard than the General Counsel. Specifically, the majority ignores the fact that the General Counsel has the exact same evidentiary burden to support its motion as the Respondent has to oppose it. See 5 C.F.R. § 2423.27(a) (motions for summary judgment "shall be supported by documents, affidavits, applicable precedent, or other appropriate materials.") If the Respondent's response (containing a signed statement asserting that unit employees were not polled because a majority of employees had already voted for a particular watch schedule) is inadequate to avoid summary judgment, then the only documents submitted by the General Counsel in support of the motion (the brief supporting its motion, and copies of the charge and amended charge) are equally inadequate. That is, if the response is a "mere allegation," then so is the motion. Finding one sufficient, but not the other, is further evidence of the majority's unfairness and flies in the face of the Authority's regulations.

      Based on the signed statement enclosed with the Respondent's response to the motion for summary judgment, I would find summary judgment inappropriate. In this connection, even assuming that the General Counsel was permitted to correct the complaint's failure to state claims sufficient to support a finding of a violation by alleging in its brief that the Charging Party was not polled because she was not a member of the Union, the Respondent's signed statement disputed that claim by alleging that its failure to poll the Charging Party was motivated by futility. As such, there is an outstanding, [ v59 p266 ] disputed issue of material fact that must be resolved before the Respondent can be found to have violated the Statute.

      In sum, as the complaint is insufficient to find a violation, the Respondent's failure to answer the complaint is likewise insufficient. Moreover, as there is an outstanding, disputed issue of material fact in this case, both the Judge and the majority err by finding summary judgment appropriate. In these circumstances, I would remand the complaint to the Judge for further proceedings. [n5] 

      For the foregoing reasons, I dissent in part.


Office of Administrative Law Judges

NATIONAL ASSOCIATION OF AIR
TRAFFIC SPECIALISTS,
MACON AFSS MACON, GEORGIA
Respondent

and

JENNIFER R. LEWIS
AN INDIVIDUAL
Charging Party

Case No. AT-CO-02-0251

Melissa L. Libertini, Esq.
For the General Counsel

Karey D. Hall, Facility Representative
For the Respondent

Before: RICHARD A. PEARSON
Administrative Law Judge

DECISION ON MOTION
FOR SUMMARY JUDGMENT

Statement of the Case

      On July 23, 2002, the Regional Director of the Atlanta Region of the Federal Labor Relations Authority issued a Complaint and Notice of Hearing, which was duly served by certified mail upon the named Respondent. The Complaint alleged that Respondent violated section 7116(b)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to poll all bargaining unit members in determining the watch schedule for the year. The Complaint also specified that, in accordance with the Authority's Rules and Regulations, the Respondent must file an answer to the Complaint no later than August 26, 2002, and that a failure to file an answer shall constitute an admission of the allegations of the Complaint.

      On September 6, 2002, Counsel for the General Counsel filed a Motion for Summary Judgment, based on the Respondent's failure to file a timely answer. A facsimile copy of this motion was received in the Office of Administrative Law Judges on September 6, 2002. After being made aware of the Motion for Summary Judgment, the Respondent, by its Facility Representative Karey D. Hall, submitted a response to the Motion for Summary Judgment and to the Complaint. The Respondent's pleading was dated September 6, 2002, and was received by the Office of Administrative Law Judges on September 11, 2002. Regarding the Motion for Summary Judgment, Hall stated that he was unfamiliar [ v59 p267 ] with unfair labor practice (ULP) cases and procedures, and that he believed his telephone discussion with an FLRA attorney concerning the ULP allegations (apparently while the charge was being investigated) fulfilled the Respondent's obligation to respond to the Complaint. The Respondent further requested permission to file its answer, which it attached to its response to the Motion for Summary Judgment. The answer, which is in narrative form, does not respond to each allegation in the Complaint; rather, it simply explains the Respondent's position that it did not commit an unfair labor practice.

Discussion of Motion for Summary Judgment

      Section 2423.20(b) of the Authority's Rules and 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. Motions to extend the filing deadline shall be filed in accordance with § 2423.21.

The Rules and Regulations also explain how to calculate filing deadlines and how to request extensions of time for filing required documents. See, e.g., sections 2429.21 through 2429.23.

      It is undisputed here that the Respondent's answer was not timely filed. Therefore, the issue is whether the Respondent has shown "good cause" for its late submission. The Respondent, as noted above, has indicated that its Facility Representative for the Macon facility, the person who received the Complaint on behalf of the Respondent, was unfamiliar with ULP procedures and concluded that his earlier telephone conversation with an attorney in the FLRA Regional Office constituted the required answer. In light of the Facility Representative's inexperience, Respondent asks that lenience be extended for its error.

      The above-described error by the Respondent is not attributable simply to inexperience, however. In the text of the Complaint and Notice of Hearing, 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 due date listed in the Complaint, August 26, 2002, was actually 34 days after the issuance of the Complaint, and thus was itself lenient to the Respondent. The plain language of the notice leaves no doubt that Respondent was required to file a new document and that an earlier telephone conversation did not meet the requirements specified. An inexperienced official, exercising normal diligence, should have consulted with legal counsel or with more experienced union officials, if he had any questions as to what was required.

      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. Environmental Protection Agency, Environmental Research Laboratory, Narragansett, Rhode Island, 49 FLRA 33, 35-36 (1994)(answer to a complaint and an ALJ's order); U.S. Department of Veterans Affairs, Medical Center, Waco, Texas and American Federation of Government Employees, Local 1822, 43 FLRA 1149, 1150 (1992)(exceptions to an arbitrator's award). Inexperienced persons are expected to seek competent counsel before, not after, a deadline has passed.

      In light of these factors, the Respondent has not shown good cause for its failure to file a timely answer to the Complaint. In accordance with section 2423.20(b) of the Rules and Regulations, this failure constitutes an admission of each of the allegations of the Complaint. I therefore make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

      The National Association of Air Traffic Specialists (NAATS) is a labor organization under 5 U.S.C. § 7103(a)(4) and is the exclusive representative of a unit of employees appropriate for collective bargaining within the Federal Aviation Administration (FAA). The National Association of Air Traffic Specialists, Macon AFSS (the Respondent) is an agent of NAATS for purposes of representing employees in the unit described above at the FAA's Macon, Georgia facility.

      During all times pertinent to this complaint, Jennifer R. Lewis (Lewis or the Charging Party) was an employee under 5 U.S.C. § 7103(a)(2) and was in the bargaining unit described above at the FAA's Macon, Georgia facility. Lewis is not a dues-paying member of the Respondent.

      The original and amended charges in Case No. AT-CO-02-0251 were filed by Lewis with the Atlanta Regional Director of the FLRA on February 27, 2002 [ v59 p268 ] and June 4, 2002, respectively. Copies of the original and amended charges were served on the Respondent.

      The Respondent and the FAA are parties to a collective bargaining agreement, dated July 16, 1993, which remains in effect. Article 34, Section 34-01, of the collective bargaining agreement provides that basic watch schedules shall be developed by the parties at the local level.

      During the time period covered by the Complaint, Karey Hall was an employee under 5 U.S.C. § 7103(a)(2), was in the bargaining unit described above, and was the Facility Representative at the Macon AFSS for the Respondent. During this time period, Hall was acting on behalf of the Respondent. In or about January of 2002, the Respondent, by Hall, did not poll all of the bargaining unit employees at the Macon AFSS, in determining the watch schedule for the year.

Conclusions

      As noted above, Article 34, Section 34-01 of the parties' collective bargaining (attached to the Counsel for the General Counsel's Brief in Support of Its Motion for Summary Judgment) provides for the union and the agency to develop basic watch schedules for employees at the local level. The General Counsel alleges in the Complaint that when the basic watch schedule for the year 2002 was being developed, the Respondent took a poll of employees but did not include all employees in the poll. As indicated in the charge and the first amended charge (Exhibits 1(a) and 1(b) of the Counsel for the General Counsel's Brief in Support of Its Motion for Summary Judgment), the Charging Party, who is not a union member, was excluded from the poll, and the Respondent admits that the Charging Party was not polled.

      The poll of employees was undertaken by the Respondent in its role as exclusive representative of unit employees, as it was part of the union's role in developing the basic watch schedule for employees at the Macon facility, a role that arose directly from the collective bargaining agreement. Therefore, the Respondent was required to carry out this function without regard to union membership. National Federation of Federal Employees, Local 1827, 49 FLRA 738, 746-48 (1994). By excluding the Charging Party from the poll, the Respondent has violated section 7116(b)(1) and (8) of the Statute.

      Accordingly, I recommend that the Authority grant the General Counsel's motion for summary judgment and issue the following:

ORDER

      Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (Statute), it is hereby ordered that the National Association of Air Traffic Specialists, Macon AFSS, Macon, Georgia (Respondent), shall:

      1. Cease and desist from:

           (a) Denying unit employees who are employed in the Macon Automated Flight Service Station, Middle Georgia Regional Airport, Macon, Georgia (Macon AFSS), and who are not members of the National Association of Air Traffic Specialists (Union), the opportunity to participate in a poll concerning the adoption of the watch schedules for the year.

           (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

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

           (a) In the event the Respondent conducts a poll among unit employees of the Macon AFSS concerning yearly watch schedules, the Respondent will grant to all unit employees the opportunity to participate in the poll.

           (b) Post at its business offices, and in all places where notices to bargaining unit employees in the Macon AFSS are customarily posted, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, the forms shall be signed by the President of the Respondent and shall be posted and maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (c) Submit appropriate signed copies of the Notice to the Chief of the Macon AFSS for posting in conspicuous places where unit employees represented by the Respondent are located. Copies of the Notice should be maintained for a period of 60 days from the date of the posting. [ v59 p269 ]

           (d) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director of the Atlanta Regional Office, Federal Labor Relations Authority, Marquis Two Tower, Suite 701, 285 Peachtree Center Avenue, Atlanta, GA 30303, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, DC, September 20, 2002.

             ______________________
               RICHARD A. PEARSON
               Administrative Law Judge


NOTICE TO OUR MEMBERS
AND OTHER EMPLOYEES
AS ORDERED BY THE
FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:

WE WILL NOT discriminate against the bargaining unit employees who are not members of the National Association of Air Traffic Specialists, Macon AFSS, by denying them the opportunity to participate in a poll concerning the watch schedule for the year.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL grant to all unit employees in the Macon Automated Flight Service Station, Middle Georgia Regional Airport, Macon, Georgia, the opportunity to participate in a poll concerning the selection of the watch schedule for the year, in the event that such a poll is conducted.

                     _____________________
                     (Labor Organization)

Date:___________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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Atlanta Regional Office, whose address is: Marquis Two Tower - Suite 701, 285 Peachtree Center Avenue, Atlanta, Georgia 30303-1270 and whose phone number is (404) 331-5212.


File 1: Authority's Decision in 59 FLRA No. 40
File 2: Oipnion of Member Pope and ALJ's Decision


Footnote # 1 for 59 FLRA No. 40 - Opinion of Member Pope

   I note, in this connection, that whether any failure of the Respondent to poll the Charging Party, or other unit employees, was the result of discrimination based on union membership is a factual matter that must be resolved before the Authority can find a violation based on discriminatory motivation. Cf. Salem Leasing Corp. v. N.L.R.B., 774 F.2d 85, 89 (4th Cir. 1985) (anti-union motivation is "question of fact"); Han-Dee Pak, Inc., 232 N.L.R.B. 454, 462 (1977) (citing Hartsell Mills Co. v. N.L.R.B., 111 F.2d 291, 293 (4th Cir. 1940)) (judge's decision adopted by Board) (question of intentional discrimination is "pure question of fact").


Footnote # 2 for 59 FLRA No. 40 - Opinion of Member Pope

   Likewise, the General Counsel's motion for summary judgement contains no mention of the parties' agreement. And, although the brief in support of the General Counsel's motion points to Article 34 of the agreement and alleges that the Respondent's authority under that provision required it to poll all unit employees, the General Counsel's assertion is unsupported. In this connection, Article 34, Section 34-01 provides that "Basic watch schedules shall be developed by the Parties at the local level." Brief in Support of Motion for Summary Judgment, Attachment. The General Counsel interprets Section 34-01 as providing for the development of watch schedules "through union and management negotiation." Brief at 4. However, if the General Counsel's interpretation is correct, then it is far from clear that the Respondent was required to poll all unit employees because "it is well established that unions are permitted to exclude non-members from . . . polls taken to determine the union's positions in negotiations." NATCA, 55 FLRA at 605 (citations omitted).


Footnote # 3 for 59 FLRA No. 40 - Opinion of Member Pope

   Although Fort Rucker involved 5 C.F.R. § 2423.13(b), the predecessor to 5 C.F.R. § 2423.20(b), the regulations are the same in pertinent part.


Footnote # 4 for 59 FLRA No. 40 - Opinion of Member Pope

   I note that the Respondent never refers to the response as an "answer." See Exceptions, Attachment A at 1-2.


Footnote # 5 for 59 FLRA No. 40 - Opini