11.

12.

13.

14,

15.

5

of § 7103(a)(10) and (11) of the Statute and agents of the Respondent acting upon its
behalf:

Travis Dann Acting Supervisor of Education
Kristin Hess Human Resource Manager

On May 14, 2021, the Respondent and the Union entered into a Memorandum of
Understanding, providing that the Vocational Training (VT) Woodworking Instructor
would be on a compressed work schedule with the hours of 7 a.m. to 5:30 p.m. from
Tuesday through Friday, with Saturday through Monday off.

On January 27, 2012, the Respondent and the Union agreed to change the scheduled
work hours for the VT Woodworking Instructor position to from 6 a.m. to 4:30 p.m.

On July 28, 2022, the Respondent agreed to a temporary change in the VT
Woodworking Instructor’s scheduled work days to Monday through Thursday, with
Friday through Saturday off.

On October 25, 2022, the Respondent, by Dann, informed Todd Berthiaume, VT
Woodworking Instructor, that his work schedule would change to five, eight-hour days
from Monday through Friday, effective Monday, October 31, 2022.

The Respondent implemented the schedule described in paragraph 9 on or about
November 7, 2022.

The work schedules described in paragraphs 6, 7, and 8 are compressed work schedules
subject to § 6131 of the Work Schedules Act (5 U.S.C. §§ 6120-6133).

The Respondent implemented the change in unit employees’ conditions of employment
described in paragraphs 9 and 10 without providing the Union with notice and an
opportunity to negotiate over the change.

By the conduct described in paragraphs 9, 10, and 12, the Respondent has been refusing
to negotiate in good faith with the Union and violating § 7116(a)(1) and (5) of the

Statute.

Since October 31, 2022, the Respondent has been failing and refusing to honor and
abide by the terms of the parties’ agreements described in paragraphs 6 and 7.

By the conduct described in paragraph 14, the Respondent is repudiating the terms of
the parties’ agreements as described in paragraphs 6 and 7.


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

The Federal Labor Relations Authority has found that the U.S. Department of Justice, Federal
Bureau of Prisons, Federal Correctional Institution, Waseca, Minnesota (the Agency), 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 unilaterally terminate bargaining unit employees’ compressed work
schedules.

WE WILL NOT repudiate agreements we negotiated with the American Federation of
Government Employees, Local 801, AFL-CIO, concerning compressed work schedules.

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

WE WILL reinstate the compressed work schedule for the VT Woodworking Instructor and
make him whole for any leave he used as a result of the change.

(Agency)

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. Questions about this notice or
compliance with its terms may be directed to the Regional Director, Chicago Regional Office,
Federal Labor Relations Authority by mail: 224 S. Michigan Ave., Suite 445, Chicago, IL
60604, or phone: (872) 627-0020.


4

the Respondent’s emailed Answer was not properly filed or served, the undersigned will not
consider it. See SSA Kansas, 70 FLRA at 108; 5 C.F.R. §§ 2423.20(b), 2429.24, 2429.27.

The Respondent also tried to file its Answer through the FLRA’s eFiling system, but
the Respondent filled out the wrong form, resulting in the Answer going to the wrong office.
Rather than using the eFiling system to submit an Answer to the Office of Administrative Law
Judges, the Respondent erroneously used the eFiling system to fill out a ULP charge against
an agency and upload the Answer. This was then erroneously submitted by the Respondent to
the FLRA’s Chicago Regional Office. GC’s Mot. for Summ. J., GC Ex. 1. As the Respondent
improperly eFiled Answer with the wrong component of the FLRA, the undersigned will not
consider that Answer either. See SSA Kansas, 70 FLRA at 108; VA Hampton, 63 FLRA at

594-95,

In sum, the Respondent has failed to properly file and serve an Answer by the June 27,
2023 deadline. Moreover, the Respondent did not file a response to the GC’s Motion for
Summary Judgement, and it has not otherwise demonstrated good cause for its failure to

properly file and serve a timely Answer.

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.

Based on the record, I make the following findings of fact, conclusions of law, and
recommendations:

FINDINGS OF FACT

i: The American Federation of Government Employees, Local 801, AFL-CIO (the
Union) filed the charge in this proceeding on November 25, 2022, and a copy was
served on the U.S. Department of Justice, Federal Bureau of Prisons, Federal
Correctional Institution, Waseca, Minnesota (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, Council of Prison Locals, AFL-
CIO (AFGE) is a labor organization within the meaning of § 7103(a)(4) of the Statute
and is the certified exclusive representative of a nationwide unit of employees of the
Federal Bureau of Prisons (the unit).

4, The Union is an agent of AFGE for the purpose of representing the unit employees
employed at the Respondent.

5. At all times material, the following individuals held the positions opposite their names
and have been supervisors or management officials of Respondent within the meaning


6

16. By the conduct described in paragraphs 14 and 15, the Respondent has been refusing
to negotiate in good faith with the Union and violating § 7116(a)(1) and (5) of the
Statute.

CONCLUSIONS OF LAW

By the conduct set forth in Case No. CH-CA-23-0088, which contains allegations to
which the Respondent has failed to file an Answer or otherwise demonstrate good cause for
such failure, the Respondent admits that it violated § 7116(a)(1) and (5) of the Statute by
implementing the change in unit employees’ conditions of employment without providing the
Union with notice and an opportunity to negotiate over the change, and by repudiating the
terms of the parties’ agreements.

The remedy requested by the GC, including that the Respondent be ordered to restore
Berthiaume’s compressed work schedule, has been applied in similar cases and will therefore
be granted. See U.S. DOJ, INS, L.A., Cal., 59 FLRA 387, 389 (2003).

In conclusion, the undersigned recommends that the Authority grant the GC’s Motion
for Summary Judgment, and vacate all other pending hearings and deadlines, and issue the

following Order:
ORDER

Pursuant to § 2423.41(c) of the Rules and Regulations of the Authority and § 7118 of
the Federal Service Labor-Management Relations Statute (the Statute), the U.S. Department
of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Waseca, Minnesota (the

Respondent), shall:

1. Cease and desist from:

(a) Unilaterally terminating bargaining unit employees’ compressed work
schedules.

(b) Repudiating agreements the Respondent negotiated with the American
Federation of Government Employees, Local 801, AFL-CIO, concerning
compressed work schedules.

(c) 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) Within 20 business days of the issuance of this order, the Respondent will
restore VT Woodworking Instructor Todd Berthiaume to a compressed


FEDERAL LABOR RELATIONS AUTHORITY OALJ 24-01

Office of Administrative Law Judges
WASHINGTON, D.C. 20424

U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
WASECA, MINNESOTA

RESPONDENT Case No. CH-CA-23-0088

AND

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 801, AFL-CIO

CHARGING PARTY

Daniel A. Kornberg
For the General Counsel

Kara Berlin
For the Respondent

Ryan Burk
For the Charging Party

Before: DAVID L. WELCH
Chief Administrative Law Judge

DECISION ON MOTION FOR SUMMARY JUDGMENT

On June 2, 2023, the Regional Director of the Chicago Region of the Federal Labor
Relations Authority (the Authority or the FLRA) issued a Complaint and Notice of Hearing in
this matter on behalf of the Acting General Counsel (GC). The Complaint alleged that the U.S.
Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Waseca,
Minnesota (the Respondent) implemented a work schedule change without providing the
Union notice and an opportunity to negotiate over the change, in violation of § 71 16(a)(1) and
(5) of the Federal Service Labor-Management Relations Statute (the Statute). The Complaint
further alleged that the Respondent has been failing and refusing to honor and abide by the


7

work schedule with the hours of 6 a.m. to 4:30 p.m. on Monday through
Thursday, with Friday through Sunday off.

Within 30 business days of the issuance of this order, the Respondent will
restore any annual or sick leave that Todd Berthiaume took for the time
during which he would have been off work if his compressed work schedule
had not been terminated in November 2022.

(b

Post at the Respondent, copies of the attached notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of such
forms, they must be signed by the Respondent’s Warden and 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 must be taken to ensure that such
notices are not altered, defaced, or covered by any other material.

(c

In addition to physically posting paper notices, distribute the notice
electronically, such as by email, posting on an intranet or an internet site,
or other electronic means, if the Respondent customarily communicates
with employees by such means.

(d

(e) Pursuant to § 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.

Issued, Washington, D.C., October 4, 2023 David L. Digital signed by David L.
Welch Date; 2023.10.04 11:52:43

DAVID L. WELCH
Chief Administrative Law Judge


2

terms of the parties’ agreements regarding compressed work schedules, in violation of

§ 7116(a)(1) and (5) of the Statute.
The Complaint indicated that a hearing on the allegations would be held on October

17, 2023, and that an Answer to the Complaint was due no later than June 27, 2023. The
Complaint was sent by First Class Mail to the Respondent’s designated representative, Isaac
Thomas, Labor Relations Specialist, Labor Relations Office — South, 346 Marine Forces Drive,
Grand Prairie, Texas 75051, and a courtesy copy of the Complaint was sent to Thomas via

email.

On June 27, 2023, the Respondent sent the undersigned an email containing the
Respondent’s Answer. GC’s Mot. for Summ. J., GC Ex. 2. Later that day, the Respondent
used the FLRA’s eFiling system to upload a document titled Respondent Answer to FLRA
Complaint. Rather than e-filing this document as an Answer with the Office of Administrative
Law Judges, the Respondent e-filed the document as an unfair labor practice (ULP) charge
against an agency. GC’s Mot. for Summ. J., GC Ex. 1.

On September 15, 2023, the GC filed a Motion for Summary Judgment based on the
fact that the Respondent had failed to file a timely, properly filed, Answer to the Complaint,
and arguing that the Respondent had therefore admitted all the allegations of the Complaint.
The GC asserts that since there are no factual or legal issues in dispute, the case is ripe for
summary judgment in its favor. The Respondent has not filed a response to the GC’s Motion

for Summary Judgment.
DISCUSSION OF MOTION FOR SUMMARY JUDGMENT

The Authority has held that motions for summary judgment, filed under § 2423.27 of
its Regulations, 5 C.F.R. § 2423.27, serve the same purpose, and are governed by the same
principles, as motions filed in United States District Courts under Rule 56 of the Federal Rules
of Civil Procedure. Dep't of VA, VA Med. Ctr., Nashville, Tenn., 50 FLRA 220, 222 (1995).
Summary judgment is appropriate when there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law, and the hearing is hereby canceled.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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. Furthermore, in the body 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


3

references to the applicable regulations. The Regional Director also advised the Respondent
that, absent a showing of good cause, the failure to answer any allegation of the Complaint
would constitute an admission.

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.1., 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 addition, documents must be filed and served in accordance with the Authority’s
Regulations. With respect to an answer to a complaint, a respondent shall file and serve, in
accordance with part 2429 of the Authority’s Regulations, an answer with the Office of
Administrative Law Judges. 5 C.F.R. § 2423.20(b). The answer may be filed by a number of
methods, including by commercial delivery, first-class mail, certified mail, or electronically
through use of the eFiling system on the FLRA’s Web site, but the Authority’s Regulations do
not permit a respondent to file an answer by email. Jd. § 2429.24. Additionally, a party may
not serve another party by email unless the receiving party has agreed to be served by email.
Id. § 2429.27(a)-(b).

Documents that are not served or filed in accordance with the Authority’s Regulations
may not be considered or may result in dismissal, and the Authority’s practice is not to consider
documents that are improperly filed, including documents that are erroneously eFiled. SSA,
Region VII, Kan. City, Kan. City, Mo., 70 FLRA 106, 108 (2016) (SSA Kansas). For example,
the Authority has refused to consider documents that were submitted via a method not
authorized under the Authority’s Regulations. See U.S. DHS, U.S. CBP, Swanton, Vt., 66
FLRA 47, 47 n.1 (2011) (refusing to consider faxed opposition to a motion for
reconsideration); Nat'l Gallery of Art, Wash., D.C., 55 FLRA 480, 480-81 (1999) (declining
to consider faxed opposition to exceptions). Likewise, the Authority has declined to consider
eFiled documents that were not specifically permitted under the Authority’s Regulations. See
SSA Kansas, 70 FLRA at 108 (refusing to consider a response to a procedural order that was
improperly eFiled). In addition, the Authority has decided not to consider documents that were
filed with the wrong office or component of the FLRA. See U.S. Dep't of VA, VA Med. Ctr.,
Hampton, Va., 63 FLRA 593, 594-95 (2009) (VA Hampton) (refusing to consider opposition
that was initially sent to a Regional Office and was not timely filed with the Authority); AFGE,
Local 2004, 33 FLRA 862, 863 (1989) (noting that a petition for review of negotiability issues
may not be filed in a Regional Office).

The Respondent in this case made two attempts to file its Answer, but the Respondent
failed to file and serve the Answer in accordance with the Authority’s Regulations. In its first
attempt, the Respondent submitted its Answer to the undersigned by email. However, email
is not an authorized method of filing documents with the Office of Administrative Law Judges.
5 C.F.R. § 2429.24. Moreover, the email was not valid service on the GC, as the GC had not
consented to service by email. GC’s Mot. for Summ. J. at 3; 5 C.F.R. § 2429.27(b). Because