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Case No. CH-CA-90798

Charging Party

Mary D. Garcia For the Respondent
Irwin H. Cutler, Jr. For the Charging Party
Susan L. Kane For the General Counsel
Before: ELI NASH, JR. Administrative Law Judge

On January 5, 2000, the Regional Director for the Chicago Region of the Federal Labor Relations Authority (FLRA, 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(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1) and (8), by its failure and refusal to proceed to arbitration on a unit employee's grievance as requested by the President of the Kentucky Nurses Association (the Union) under the parties' negotiated agreement.

The complaint specifically advised the Respondent that an answer must be filed "no later than January 31, 2000," and that a "failure to file an answer or respond to any allegation of this complaint will constitute an admission. See 5 C.F.R. § 2423.20(b)." Respondent did not file an answer, either in person or by mail, within the required period or at any time thereafter.

On February 9, 2000, Counsel for the General Counsel filed a Motion for Summary Judgment because of Respondent's failure to file an answer to the allegations of the complaint, thereby resulting in the admission of all such allegations and the absence of any material issue of fact requiring a hearing. Thereafter, on February 11, 2000, the Chief Administrative Law Judge issued an Order to Show Cause, on or before February 28, 2000, why the hearing set for March 2, 2000, should not be canceled and Counsel for the General Counsel's Motion for Summary Judgment not be granted.(1)

Timely responses were received from the Union in support of the motion, for the reasons stated by Counsel for the General Counsel, and from the Respondent in opposition thereto for the following reasons. First, the Respondent stated that while there was no excuse for its acknowledged failure to file an answer, the reason for such failure was the inexperience of its designated representative. Second, while admitting the factual allegations of the complaint, the Respondent stated that its communications with the Union explained why it would not agree to arbitrate the grievance, i.e., the failure of the Union to request a list of arbitrators within seven days of its timely invocation of arbitration as required by the terms of the parties' agreement. In any event, Respondent asserts it did not patently breach the contract and thus did not commit an unfair labor practice.

Since Respondent failed to answer the instant complaint, it is recommended that the General Counsel's Motion for Summary Judgment be granted.

Findings of Fact

The uncontested facts establish the following:

The Union and Respondent are parties to a collective bargaining agreement covering an appropriate unit of employees at Respondent's Cincinnati, Ohio Medical Center. Jackie Scheid is a bargaining unit employee who filed a grievance under the four-step procedure in that agreement.(2) On March 1, 1999, the Respondent issued a fourth-step response to the Scheid grievance. Thereafter, on March 12, 1999, the Union's President invoked arbitration concerning the grievance.(3) By letter dated April 23, 1999, Respondent informed the Union that it would not proceed to arbitration on employee Scheid's grievance, and thereafter in a letter dated May 7, 1999, Respondent advised the Union that it would not participate in the selection of an arbitrator for that grievance from a list of arbitrators supplied by the Federal Mediation and Conciliation Service. The Union contacted the Respondent by letter dated May 11, 1999, and asked Respondent to participate in the selection of an arbitrator; Respondent refused to do so by letter dated June 4, 1999, declaring that it considered the matter closed. Since on or about April 23, 1999, and at all times continuing to date, the Respondent has failed and refused to proceed to arbitration on Scheid's grievance.


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 . . . . Absent a showing of good cause to the contrary, failure to

file an answer or respond to any allegation shall constitute an admission.

In this case, Respondent admittedly failed to file an answer to the complaint by January 31, 2000, as required by section 2423.20(b) of the Authority's Rules and Regulations, even though it was specifically notified of such requirement in the complaint. Respondent admits that it has no excuse for the failure to file an answer. Although the inexperience of Respondent's designated representative is the reason ascribed for the failure to answer the complaint, such ground does not constitute good cause under the Authority's Rules and Regulations, since all parties before the Authority are responsible for being aware of the statutory and regulatory filing requirements. See U.S. Environmental Protection Agency, Environmental Research Laboratory, Narragansett, Rhode Island, 49 FLRA 33, 35-36 (1994); U.S. Department of Veterans Affairs Medical Center, Waco, Texas and American Federation of Government Employees, Local 1822, 43 FLRA 1149, 1150 (1992); U.S. Department of Housing and Urban Development, Washington, DC, 34 FLRA 307, 309 (1990). This is particularly true when the inexperienced representative is told specifically in writing what needs to be filed, by when, and the consequences of failing to do so.

Respondent's contention in its response to the Chief Administ