OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
CORPUS CHRISTI ARMY DEPOT,
CORPUS CHRISTI, TEXAS
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2142
Case No. DA-CA-20305
Captain Laura A. Cushler
For the Respondent
For the Charging Party
Julie Garnett Griffin, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
Statement of the Case
This case arose under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
§ 7101, et seq.
(herein the Statute).
Upon an unfair labor practice charge having been filed by
the captioned Charging Party (herein the Union) against the
captioned Respondent, the General Counsel of the Federal Labor
Relations Authority (herein the Authority), by the Regional
Director for the Dallas Region, issued a Complaint and Notice of
Hearing alleging Respondent violated the Statute by refusing to
proceed to arbitration on a grievance filed by the Union on behalf
of a bargaining unit employee.
A hearing on the Complaint was conducted in Corpus Christi,
Texas at which all parties were afforded full opportunity to adduce
evidence, call, examine and cross-examine witnesses and argue
orally. Briefs were filed by Respondent and the General Counsel and
have been carefully considered.
Upon the entire record in this case, my observation of the
witnesses and their demeanor and from my evaluation of the
evidence, I make the following:
Findings of Fact
At all times material the Union has been the exclusive
collective bargaining representative for various of Respondent's
employees. On April 22, 1991 the Union filed a grievance pursuant
to the parties' negotiated collective bargaining agreement alleging
the Agency failed to properly compensate employee Phillip Haddock
while working on a detail. The grievance was not resolved and on
August 15, 1991 Chief Steward Leonard Mencio notified Respondent
that the Union was requesting arbitration of the grievance.
In late October 1991 the parties selected Dr. Wallace Nelson
to arbitrate the Haddock grievance. The general procedure for
setting a date for hearing is for the arbitrator to contact both
parties, or at times only the Agency, by telephone or letter and
from a number of available dates the parties would agree on a
specific date and notify the arbitrator of that date. Respondent
and the Union disagree on various events concerning the setting of
the date for the Haddock arbitration.
Respondent's Chief Counsel James Abbott testified that in
mid - November 1991 Dr. Nelson called and told him he had December
11 and 12 available to arbitrate the Haddock grievance. Abbott
informed Nelson he had no problem with those days. According to
Abbott, Nelson told him he was having difficulty reaching Chief
Steward Mencio at the Union hall and asked that the Agency contact
Mencio with the dates.(1) Abbott
testified he had his secretary, Olga Escamilla, call Mencio and
give him those dates.
Olga Escamilla testified she first received a telephone call
from Dr. Nelson in the "latter part of November" 1991 during which
he indicated he was available to arbitrate the Haddock grievance on
December 11 or 12. She replied that she would relay the information
to Respondent's Chief Counsel Abbott and Nelson asked her to also
notify the Union, probably naming Chief Steward Mencio. Escamilla
testified Abbott stated either of the two days were acceptable to
him and in a conversation with Mencio the following day, Mencio
indicated he had "no problem" with the two December dates. Sometime
thereafter, according to Escamilla, she telephoned Dr. Nelson and
told him that the December 11 or 12 dates "seemed to be okay."
Chief Counsel Abbott also testified that on November 21,
1991 he had a telephone conversation with Chief Steward Mencio to
set up a meeting for November 25 in order to discuss the possible
settlement of another case set for arbitration involving an
employee named Martin, which had been scheduled for a December 3
arbitration and the Haddock matter. According to Abbott, during the
conversation Menico again said he had no problem with either the
December 11 or 12 arbitration dates for the Haddock grievance.
The parties met on November 25, 1991. Abbott and Rachel
Amaya, a representative from the Agency's Civilian Personnel
Office, represented the Respondent. The Union was represented by
Mencio, David Carroll, Union Vice-President who, as part of his
duties, represents the Union in numerous arbitration cases, and
Randolph Wilson a Steward who was the Union's designated
representative for employee Haddock during the prior processing of
his grievance and was serving as a technical advisor. Abbott
testified that he indicated at the meeting that the Martin and
Haddock grievances were essentially the same and that the Agency
was willing to acknowledge various "procedural errors" made in the
two cases. Abbott further testified that he proposed to settle both
cases and also suggested the two cases be arbitrated together.
Settlement did not occur and the meeting was continued to the
following day when Carroll, who was representing the Union in both
arbitrations, was to notify management whether the cases could be
combined for arbitration and which of the December dates was
acceptable to the Union. On November 26, according to Abbott's
testimony, the Union informed him that the two cases could not be
combined for hearing and the Union still had not had a chance to
contact Dr. Nelson regarding the date to arbitrate the Haddock
Chief Steward Mencio had no recollection of a conversation
with Chief Counsel Abbott's secretary Escamilla concerning the
December 11 or 12 dates for the Haddock arbitration. He testified
the first he became aware of the December dates was when
Vice-President Carroll complained to him on December 3 that the
Agency had unilaterally set the date for the Haddock arbitration
for December 11 or 12.(3) At that
time, according to Mencio, he and Carroll decided not to accept the
December arbitration dates and to contact the arbitrator to get an
Mencio further testified that at the November 25 or 26, 1991
meeting between he, Carroll and Wilson with Agency representatives
Abbott and Amaya, the discussion was limited to possibly
consolidating the Martin and Haddock disputes into one arbitration
or settling both. However the Union rejected consolidation and the
Agency's settlement offer.
Union Vice-President Carroll and Union Steward Wilson both
denied any mention of setting December 11 or 12 for the Haddock
arbitration was made at the November 25-26 meeting with management.
Both also testified that the first they heard of the December 11-12
dates was on December 3, 1991. Carroll whose testimony was more
thorough than that of Wilson, testified that at the November
meeting with management only combining and settling the Martin and
Haddock grievances was discussed and while the December 3 date for
the Martin arbitration was known, he did not become aware of the
December 11-12 date for the Haddock grievance until so informed by
Abbott's secretary, Escamilla, during a break in the Martin
On December 3, 1991 the Martin grievance was arbitrated.
Carroll was the Union representative. Abbott's secretary, Olga
Escamilla, testified that on that day she talked to Union
representative Carroll in a lobby, apparently outside of the Martin
arbitration room, and told him of Dr. Nelson's availability on
December 11 or 12 to conduct the Haddock arbitration.(4) Carroll replied he "couldn't make it" on
those two days. Escamilla testified that "right after that" she
related to Abbott the conversation she had just had with
According to Carroll, after being notified by Escamilla that
the arbitration was set for December 11 or 12, he told her those
dates were too soon and asked for an alternative date. Carroll
testified that Escamilla thought something might be available in
January or February and she would check and get back to him.
Carroll further testified that Escamilla called him the following
day (December 4) and told him that no other date was available and
that was the "date" set for the hearing.
Chief Counsel Abbott testified that the first indication he
received that there was a date problem for the Haddock arbitration
was on December 4, 1991 when he received a telephone call from Dr.
Nelson who indicated he had called the Union hall several times in
an attempt to contact Chief Steward Mencio regarding the December
11 or 12 date for the Haddock arbitration. Although according to
Abbott's testimony he told Nelson that Carroll was handling the
matter, Nelson supposedly asked Abbott if he would call Mencio to
"firm up" the date. Thereupon Abbott, according to his account,
called Carroll and told him Nelson was still waiting to hear from
the Union regarding whether they wanted December 11 or 12 for the
hearing. Carroll replied that he would not be able to proceed on
those dates because it did not give him adequate time to prepare
for the arbitration. Abbott expressed his belief that Carroll had
sufficient time to prepare for the arbitration since a similar
matter had just been arbitrated on the prior day and Abbott
complained that Carroll had not raised the matter
Abbott and the Civilian Personnel Officer met with Carroll
and the Union President on December 5 and discussed the question of
proceeding with the Haddock arbitration.(6) Abbott urged the matter be arbitrated on
December 11 or 12 but the Union remained adamant that it did not
have adequate time to prepare for arbitration, contending the Union
never agreed to a December date. Abbott stated that the Agency was
ready to proceed with the arbitration and if the Union was not, the
Agency would consider that a failure to prosecute. Prepara tion
time was also discussed but the matter remained unresolved.
Abbott concluded that there had been a commitment for
arbitration and it appeared that the Union was now not willing to
go forward and on December 5 the Agency sent the following letter
to the Union:
This letter is to serve notice that the Agency stands prepared to arbitrate the above-referenced case
on December 12, 1991, as proposed by the Arbitrator.
Since Monday, November 25, 1991, the Agency through its representative, James Abbott, has
attempted to finalize a date for the Phillip Haddock arbitration with your Local's identified
representative, David Carroll. Mr. Carroll was identified as the representative on November 25,
1991, for both the Haddock arbitration and an arbitration
involving Keith Martin.
On December 3, 1991, the Agency and your Local arbitrated the Keith Martin arbitration which
contained nearly identical issues with this case. Since the issues, evidence, and witnesses in both
arbitrations are similar, the amount of time necessary for preparation is negligible. Accordingly, I
exercise my right under the Negotiated Agreement to determine what amount of official time is
appropriate. I, therefore, authorize the use of no more than 30 hours of official time for the Union
representative, Mr. Carroll, and any designated technical advisor for preparation for the Haddock
Since official time in excess of 30 hours is unnecessary, unless a conflict stands with the date of
December 12, 1991, the Agency is prepared to arbitrate this matter on December 12, 1991. The
failure to do so will be considered a refusal to arbitrate and will relieve the Agency of further
obligation to consider this grievance.
After receiving the Agency's December 5 letter, Union
Vice-President Carroll testified he telephoned Dr. Nelson on
December 6 and explained to him the Union's position on setting the
date for the Haddock arbitration.(7)
The essence of that conversation was reduced to a letter to Nelson
dated December 9, a copy of which was sent to Agency Chief Counsel
Abbott. That letter stated:
This letter is to serve notice that the Union is not prepared to Arbitrate the above referenced case
on December 12, 1991 as proposed by Mr. James T. Abbott, Chief Counsel, Corpus Christi
On December 3, 1991 the Agency and the Union Arbitrated a similar case. The agency wanted to
combine this case with the instant case. However, due to there being major differences, the Union
decided to keep the two separate.
During one of the breaks of this hearing, I was informed by Ms. Olga Escamilla, secretary, Agency
Local Office, that you would be available on December 11th or 12th. I informed her that this was to
(sic) early for us and asked what the next available dates were. She said she thought you may be
available in January or February but Mr. Abbot (sic) wanted to have the hearing on the 12th. I
again informed her this was to (sic) soon for us. She then said she would inform Mr. Abbot (sic) and
check on other dates tomorrow. As we understand it the above dates were only recommended by
you as being the only dates you were available at the
As per your conversations with our Chief Steward, Mr. Leonard Mencio and again with myself on
December 5, 1991, you will not be available again until March 1992. Although this date is in the
distant future, if it is the next date you have available we will accept the proposed dates, but we do
need some specific dates in March to choose from and offer
to the Agency.
As previously stated, we will not be prepared to Arbitrate this case on December 12th as requested
by the Agency. It has been and will continue to be the practice of this organization, to review the
proposed dates offered by the arbitrators, and with mutual consent between the agency and the union,
a date selected.
It is not conducive to good labor relations, for a selection of an arbitration date to be based on the
sole opinion of one side or the other, as it appears in this particular case. Therefore, we respectfully
request that the proposed date of December 12, 1991, be
canceled and alternate dates be offered.
Thank you for your consideration in this matter.
On December 12, 1991 Dr. Nelson sent the following letter to
Chief Counsel Abbott and Chief Steward Mencio:
This will update you on our effort over the past two weeks to set up a Hearing date for the above-
entitled matter, and to apologize if anything I said or did contributed to the apparent confusion
I've been unable to contact the Union at all; (telephone number) is always busy, and the number
Mr. Carroll gave me to call him at home . . . got me a repeated operator message, "we're having
trouble on this line, try later." Mr. Mencio called me and I proposed December 11 or 12 to him, and
did the same to Olga in Mr. Abbott's office. Those dates were satisfactory to the Agency, but
apparently not to the Union.
On December 10, Mr. Carroll called me (following up on a FAX message saying the December
11-12 dates were not satisfactory to the Union), and I proposed February 27 or March 19. Mr.
Carroll agreed to check those dates with Mr. Abbott. This is where we stand. Let me know if either
of these dates is satisfactory.
The parties have not resolved the matter and the unfair
labor practice charge herein was filed.(8)
Additional Findings, Discussion and Conclusions
Counsel for the General Counsel contends Respondent refused
to proceed to arbitration on the Haddock grievance and thereby
failed to comply with the requirements of section 7121(b)(3) of the
Statute and failed to bargain in good faith with the Union in
violation of section 7116(a)(1), (5) and (8) of the
Counsel for Respondent denies the Agency's conduct
constituted a refusal to arbitrate the Haddock grievance and
contends Respondent dealt with the Union in good faith and urges
the Haddock grievance be declared nonarbitrable based upon the
Union's alleged bad faith delay.
Basically the General Counsel's case is that the December
11-12, 1991 date for the Haddock arbitration was unilaterally set
by Respondent and notification of the date was first given to the
Union on December 3. Respondent's case is essentially that the
Union, by Mencio being notified early on of the December
arbitration date and accepting it, and the Union again being
notified during the late November meeting and voicing no objection,
had irrevocably committed itself to the December arbitration date
and the Union's refusal to go to arbitration as scheduled was
tantamount to a withdrawal of its request for arbitration.
In my view of the evidence the Union never clearly agreed to the December date to arbitrate the Haddock grievance, and in any event, Respondent was not misled to its detriment by the Union's conduct.(10)
I find that sometime in late November 1991 Dr. Nelson, the
designated arbitrator for the Haddock grievance, contacted the
Agency and indicated he would be available to arbitrate the matter
on December 11 or 12. The date was acceptable to Chief Counsel
Abbott. Soon thereafter Abbott's secretary Escamilla telephoned
Chief Steward Mencio and told him of Nelson's availability. Mencio
indicated he had "no problem" with the date. Escamilla then called
Nelson and told him that the December 11-12 timeframe for the
arbitration "seemed to be okay" with the parties.
The December 11-12 dates were not further communicated
between the parties until December 3, 1991 at a break during the
Martin arbitration when Escamilla, apparently not sure that the
Union's arbitration representative Carroll was aware of the
available dates for the Haddock arbitration, told him of the dates.
Carroll objected since he wished to have more preparation time and
felt the date was unilaterally selected. Respondent wished to
proceed with the Haddock arbitration since it was similar to the
Martin matter.(11) However, the
evidence does not disclose that Respondent engaged in any action or
incurred any detrimental liability of any sort by December 3 when
it became aware that the December 11-12 arbitration date would not
Indeed I find that the December 11-12 date for the Haddock
arbitration never was a certainty in the minds of the parties. Even
after Mencio indicated to Escamilla that he had "no problem" with
the date and Escamilla passed the date on to Dr. Nelson, Chief
Counsel Abbott still obviously felt the Union had not completely
consented to the date. Thus he testified that at a November 26,
1991 meeting with the Union, the Union rejected combining the
Martin and Haddock arbitrations and "still had not contacted Dr.
Nelson," which indicates to me that Abbott was aware that the
December 11-12 date was still tentative at this point and the Union
was expected to confirm the specific date with Nelson if it was
agreeable. Further, Dr. Nelson's December 12 letter to the parties
recounting his attempts to set up a hearing indicates uncertainty
on his part as well.
Even were I to have found that the Union was put on notice
in November that the Haddock arbitration was scheduled for December
11-12 and indeed agreed to arbitrate the matter at that time, the
Union's actions clearly indicate a withdrawal from that agreement
on December 3 and 4. In such circumstances I would find that such
conduct would not vitiate Respondent's obligation to proceed to
arbitration when a date could be agreed upon. The collective
bargaining agreement is silent as to setting a date for arbitration
and the Agency offered no evidence of an exigency or compelling
reason, nor presented any evidence of detriment to the process or
to Respondent that would result if the arbitration was not held
when scheduled. In my view, such a showing must be made in the
circumstances of this case before the Union would forfeit its
Statutory right to have the matter arbitrated for essentially
merely seeking a postponement of a scheduled arbitration.
Accordingly, in view of the entire foregoing and the record
herein I conclude Respondent's conduct constituted a refusal to
arbitrate the Haddock grievance violative of section 7116(a)(1),
(5) and (8) of the Statute. Cf.
American Federation of Government Employees, Local
1457, 39 FLRA 519, 528 (1990); U.S.
Department of the Air Force, Griffiss Air Force Base, Rome, New
York and American Federation of Government Employees, Local
2612, 38 FLRA 276, 280 (1990); and Department of Labor, Employment Standards Administration/Wage
and Hour Division, Washington, D.C., 10 FLRA 316 (1982). I
therefore recommend the Authority issue the following:
Pursuant to section 2423.29 of the Authority's Rules and
Regulations and section 7118 of the Federal Service
Labor-Management Relations Statute, the Corpus Christi Army Depot,
Corpus Christi, Texas, shall:
1. Cease and desist from:
(a) Refusing or failing to proceed to arbitration
regarding a grievance filed by the American Federation of
Government Employees, Local 2142, the employees' exclusive
representative, on April 22, 1991, concerning employee Phillip
Haddock, contrary to the requirements of section 7121 of the
(b) In any like or related manner interfering with,
restraining, or coercing 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) Upon request, and after mutually agreeing with
the Union on a hearing date, proceed to arbitration regarding the
grievance filed by the American Federation of Government Employees,
Local 2142 on April 22, 1991, concerning employee Phillip
(b) Post at its Corpus Christi, Texas facility,
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 Army Depot Commander, 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) Notify the Regional Director of the Dallas
Region, Federal Labor Relations Authority, in writing, within 30
days from the date of this Order, as to what steps have been taken
to comply herewith.
Issued, Washington, DC, August 25, 1993
SALVATORE J. ARRIGO
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to proceed to arbitration regarding a
grievance filed by the American Federation of Government Employees,
Local 2142, the employees' exclusive representative, on April 22,
1991, concerning employee Phillip Haddock.
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 upon request, and after mutually agreeing with the Union
on a hearing date, proceed to arbitration regarding the grievance
filed on April 22, 1991, concerning employee Phillip Haddock.
Date: __________________________ By: __________________________
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, Dallas Region, 525 Griffin Street, Suite 926, LB 107,
Dallas, Texas 75202 and whose telephone number is: (214)
2. Rachael Amaya, the other management representative present at these meetings, was not called to testify even though the Union witnesses' version of significant aspects of this meeting was at odds with Abbott's testimony.
November 21, as Abbott testified.
4. Escamilla testified she told Carroll of Dr. Nelson's availability, even though she had previously given this information to Chief Steward Mencio, to "make sure" that he knew of the date. Escamilla had no satisfactory explanation for why she felt it necessary to tell Carroll of these arbitration dates.
December 4 with Escamilla, supra.
"(b) Any negotiated grievance procedure referred to in subsection (a) of this section shall--
"(3) include procedures that--
"(A) assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances;
"(B) assure such an employee the right to present a grievance on the employee's own behalf, and assure the exclusive representative the right to be present during the grievance proceeding; and
"(C) provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency.
10. These findings and conclusions are based not only upon my determination of the credibility of each witness, but also upon my evaluation of the probabilities of events when considering the acknowledged conduct of the parties and the evidence at hand. Due to the divergent accounts of the witnesses, while not expressly stated, it will be evident that I have credited some, but not all, of the testimony of various witnesses to make a composite account of events I have found most likely to have occurred herein.
11. While Carroll might have told the Martin arbitrator that he needed more time to file a brief because he had another arbitration in a week, such statement might have been made after he was put on notice during a break in the arbitration that the Agency was preparing to go ahead with the Haddock hearing on December 11-12.