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  • United States Department of Housing and Urban Development, Kentucky State Office, Louisville, Kentucky (Respondent) and American Federation of Government Employees, Local 3980, AFL-CIO (Charging Party/Union)

United States Department of Housing and Urban Development, Kentucky State Office, Louisville, Kentucky (Respondent) and American Federation of Government Employees, Local 3980, AFL-CIO (Charging Party/Union)

[ v58 p73 ]

58 FLRA No. 15

UNITED STATES DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT, KENTUCKY
STATE OFFICE, LOUISVILLE, KENTUCKY
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3980, AFL-CIO
(Charging Party/Union)

CH-CA-00694

_____

DECISION AND ORDER

September 11, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel filed an opposition to the exceptions. [n1] 

      The complaint alleges that the Respondent violated § 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to furnish information requested by the Union. The Judge granted the General Counsel's motion for summary judgment after the Respondent failed to file a timely response to the complaint and failed to respond to the General Counsel's motion. The Respondent excepts to the finding of a violation and to the Judge's designation of a particular individual to sign the remedial notice.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.

      In so ruling, we find that 5 C.F.R. § 2429.5 bars our consideration of the Respondent's claims that it had good cause for failing to answer the complaint timely, that its actions were consistent with the parties' agreement and that the Union failed to show a particularized need for the information. Under 5 C.F.R. § 2429.5, the Authority will not consider "any issue, which was not presented in the proceedings before the . . . Administrative Law Judge[.]" As the Respondent's claims were raised for the first time in its exceptions, the claims are not properly before us. [n2] 

      Additionally, we find no merit to the Respondent's contention that the Judge erred in directing that the notice to employees be signed by the Respondent's Kentucky State Office Coordinator. The Authority typically directs the posting of a notice signed by the highest official of the activity responsible for the violation. See, e.g., United States Dep't of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Ky., 53 FLRA 312, 322 (1997). In this case, the complaint alleged, and the Judge found, that the Respondent failed to furnish the information requested by the Union. Accordingly, the Judge properly directed the Kentucky State Office Coordinator to sign the notice.

II.     Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Housing and Urban Development, Kentucky State Office, Louisville, Kentucky, shall:

      1.     Cease and desist from:

           (a)     Failing and refusing to furnish the American Federation of Government Employees, Local 3980, AFL-CIO (the Union), sanitized copies of the applications submitted and the competitive placement records created in connection with the following vacancy announcements at the Kentucky State Office: [ v58 p74 ] 00-DEU-2000-0001Z; 00-MSH-2000-0001Z; 00-DEU-2000-0002Z; 00-MSH-2000-0002Z.

           (b)     In any like or related manner, interfering with, restraining or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

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

           (a)     Upon request, promptly furnish the Union with the information specified above.

           (b)     Post at its facilities in the Kentucky State Office, Louisville, Kentucky, where 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 Department of Housing and Urban Development, Kentucky State Coordinator, 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.

           (c)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of Housing and Urban Development, Kentucky State Office, Louisville, Kentucky, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT fail or refuse to furnish the American Federation of Government Employees, Local 3980, AFL-CIO (the Union), sanitized copies of the applications submitted and the competitive placement records created in connection with the following vacancy announcements at the Kentucky State Office: 00-DEU-2000-0001Z; 00-MSH-2000- 0001Z; 00-DEU-2000-0002Z; 00-MSH-2000-0002Z.

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

WE WILL, upon request, promptly furnish the Union with the information specified above.

      ________________________
(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, Chicago Regional Office, whose address is: 55 West Monroe, Suite 1150, Chicago, IL 60603, and whose telephone number is: (312) 353-6306.

File 1: Authority's Decision in 58 FLRA No. 15
File 2: ALJ's Decision

Footnote # 1 for 58 FLRA No. 15 - Authority's Decision

   An earlier order in this case, construing a portion of the General Counsel's opposition as a cross-exception, was in error.

Footnote # 2 for 58 FLRA No. 15 - Authority's Decision

   We also reject the Respondent's claim that it had good cause for failing to respond to the motion for summary judgment. The standard for waiving an expired time limit is set forth in 5 C.F.R. § 2429.23(b), which permits the Authority to "waive any expired time limit . . . in extraordinary circumstances." There is no dispute that the Respondent received the General Counsel's motion. The Respondent's claim that the attorney to whom the case had been assigned was ill and, thereafter, terminated her employment does not establish extraordinary circumstances. See, e.g., United States Dep't of Veterans Affairs Med. Ctr., Kansas City, Mo., 52 FLRA 282 (1996), and cases cited therein.