International Federation of Federal Police, Local 41 and Wayne D. Thurber (Authority decision, April 25, 1979)

Final FLRA decision under Executive Order 11491. The Authority adopted the judge's procedural dismissal of a complaint in this transferred case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

Wayne Thurber complained that a federal police union local violated Executive Order 11491 through remarks allegedly made by one of its agents. Neither side appeared at the scheduled hearing, and the judge could not reach them to explain their absence. He dismissed the complaint for failure to prosecute, without deciding whether the remarks violated the Order. No exceptions were filed. The Authority adopted the dismissal.

Decision snapshot

• Authority: Executive Order 11491, § 19(b)(1), (3), (5); 5 U.S.C. § 7135(b).
• Outcome: Complaint dismissed for failure to prosecute.
• Key point: The complainant's failure to appear at the hearing ended the case without a merits ruling.

Full text (FLRA public release)

[ v01 p191 ]

01:0191(24)CO

The decision of the Authority follows:

1 FLRA No. 24

INTERNATIONAL FEDERATION OF FEDERAL POLICE,
LOCAL 41, SAN FRANCISCO, CALIFORNIA
Respondent

and

WAYNE D. THURBER
Complainant

Assistant Secretary
Case No. 70-6382(CO)

DECISION AND ORDER

ON JANUARY 24, 1979, ADMINISTRATIVE LAW JUDGE HARRY B. LASKY ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE ENTITLED PROCEEDING
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY BASED ON
THE COMPLAINANT'S LACK OF PROSECUTION. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).

THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
SUBJECT CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS. /1/

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 70-6382(CO) BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., APRIL 25, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

DECISION AND ORDER

PURSUANT TO A COMPLAINT FILED ON AUGUST 28, 1978, UNDER EXECUTIVE
ORDER 11491, AS AMENDED, BY WAYNE D. THURBER (HEREINAFTER CALLED THE
COMPLAINANT) AGAINST THE INTERNATIONAL FEDERATION OF FEDERAL POLICE,
LOCAL 41 (HEREINAFTER CALLED THE RESPONDENT), A NOTICE OF HEARING ON
COMPLAINT WAS ISSUED BY THE REGIONAL ADMINISTRATOR FOR THE SAN FRANCISCO
REGION ON NOVEMBER 24, 1978.

THIS DECISION, PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL
REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979, PAGES 7-8, IS ISSUED IN THE
NAME OF THE AUTHORITY AND, IN ACCORDANCE WITH SECTION 2400.2 (5 C.F.R.
2400.2) OF THE TRANSITION RULES AND REGULATIONS, SHALL BE PROCESSED BY
THE AUTHORITY IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS, TITLE 29, CODE OF
FEDERAL REGULATIONS, PART 201, ET SEQ., EXCEPT THAT THE WORK "AUTHORITY"
SHALL BE SUBSTITUTED WHEREVER THE WORDS "ASSISTANT SECRETARY" APPEAR IN
THE RULES AND REGULATIONS OF THE OFFICE OF THE ASSISTANT SECRETARY.

THE COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTIONS 19(B)(1),
(3), AND (5) OF THE EXECUTIVE ORDER BY VIRTUE OF CERTAIN REMARKS
ALLEGEDLY MADE BY RESPONDENT'S AGENT DANIEL A. JAIMEZ TO FEDERAL POLICE
OFFICER HOWARD P. BROWN ON OR ABOUT JULY 14, 1978.

ON THE DATE OF THE HEARING NEITHER PARTY APPEARED AND ALL EFFORTS TO
CONTACT THE PARTIES TO DETERMINE THE REASON FOR THEIR ABSENCES WAS
WITHOUT SUCCESS.

IN VIEW OF THE FAILURE OF THE COMPLAINANT TO APPEAR AT THE HEARING
AND PURSUANT TO SECTION 203.7 OF THE REGULATIONS, THE FEDERAL LABOR
RELATIONS AUTHORITY HEREBY ORDERS THE DISMISSAL OF THE COMPLAINT FOR
FAILURE OF PROSECUTION.

SO ORDERED THIS THE 24TH DAY OF JANUARY, 1979, IN SAN FRANCISCO,
CALIFORNIA.

HENRY B. LASKY

ADMINISTRATIVE LAW JUDGE

HBL:VAG

/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224) THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.