OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
THE ADJUTANT GENERAL, STATE
OF GEORGIA, ATLANTA, GEORGIA
andSOUTH GEORGIA ARMACT, CHAPTER 56
Case No. AT-CA-40382
Charles L. Moulton, LTC, GaARNG, LRS For the Respondent
Before: ELI NASH, JR. Administrative Law Judge
Statement of the Case
On June 24, 1994, the Acting Regional Director of the
Atlanta Region of the Federal Labor Relations Authority (herein
called the 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
(5) of the Statute by refusing to provide grievants with written
decisions to their grievances at Step 4 of the grievance procedure,
as required by the collective bargaining agreement between the
parties and thereby, revoked and repudiated the grievance and
arbitration section of the parties collective bargaining
The Complaint allowed Respondent the requisite 20 days,
until July 19, 1994 to file an answer pursuant to section 2423.13
of the Rules and Regulations of the FLRA. Respondent filed no
answer within the required period.
Thereafter, on or around August 9, 1994, Counsel for the
General Counsel moved for summary judgment based on Respondent's
failure to file an answer in the captioned matter. On that same
day, the Regional Director of the Atlanta Region, in accordance
with section 2423.22(b) of the Rules and Regulations of the FLRA
referred the motion to the Chief Administrative Law Judge.
Thereafter, on August 12, 1994, the Chief Administrative Law Judge
issued an Order granting all parties until August 29, 1994, to file
any further pleadings or briefs in the matter. The matter was
assigned to the undersigned for disposition pursuant to section
2423.19(t) and section 2423.22(b)(3) of the Rules and Regulations
of the FLRA. Thereafter, on August 26, 1994 Respondent filed a
submission stating that failure to file an answer was the result of
inexperience and an oversight on the part of its representative.
Respondent does not deny that no material issues are in dispute in
this matter, but instead questioned the adequacy of the FLRA's
investigation of the case. Respondent also requested that the
matter be held in abeyance until September 20, 1994 until it had an
opportunity to resolve the pending unfair labor practices.
Respondent, however, failed to notify the Chief Administrative Law
Judge by the date it requested, of the status of its attempts to
resolve the matter. Respondent's action certainly appears
insensitive to deadlines, even those established by itself. To the
undersigned, Respondent seems to view itself as immune from FLRA
Since Respondent failed to reply to the Complaint, and its
response to the Order of the Chief Administrative Law Judge does
not deny that any material facts are in dispute, it is recommended
that the motion for summary judgment be granted for the following
Findings of Fact
The admitted, uncontested facts establish the following:
1. The Union is the certified exclusive representative of a unit of employees appropriate for collective
bargaining at Respondent's facility.
2. Respondent and the Union are parties to a collective bargaining agreement covering Respondent's
employees in a unit appropriate for collective bargaining.
3. The collective bargaining agreement under Article XVII, "Grievance and Arbitration," Section 2(b)(3)
(STEP 4)(b) reads as follows:
At Step 4 of the Negotiated Grievance Procedure, the Adjutant General or designated
representative will offer an opportunity to the State Chairman's Office to present any
pertinent information, after which The Adjutant General will take whatever action deemed
necessary to resolve the problem. The Adjutant General or representative will give the
grievant a written decision within 15 calendar days after receipt of information from the
State Chairman's Office.
4. Beginning in 1993, and continuing during the period December 1993 through February 1994, the
Respondent through its agents William P. Bland and/or Charles L. Moulton, has refused to provide
grievants with written decisions to their grievances at Step 4 of the grievance procedure, as required by,
and notwithstanding, Article XVII, "Grievance and
Arbitration," Section 2(b)(3)(STEP 4)(b).
5. Since December 1993, Respondent has refused to comply with and has revoked and repudiated,
Article XVII, "Grievance and Arbitration," Section 2(b)(3) (STEP 4)(b), of the collective bargaining
agreement by not responding to grievances filed by unit employees on November 2, 1993, June 11,
1993, December 27, 1993 and March 25, 1993,
Section 2423.13(b) of the Rules and Regulations of the FLRA
provides, in pertinent part:
Failure to file an answer or to plead specifically to or explain any allegation shall constitute
an admission of such allegation and shall be so found by the Authority, unless good cause
to the contrary is shown.
The failure of Respondent to file any answer in this case
requires a finding that it has admitted all the allegations of the
instant Complaint. Where a party has failed to meet a filing
requirement under the Statute, that failure may be excused where
good cause is shown. The Authority has previously warned parties
filing actions with it that they "are responsible for being
knowledgeable of the statutory and regulatory requirements."
U.S. Environmental Protection Agency,
Environmental Research Laboratory, Narragansett, Rhode
Island, 49 FLRA No. 7 (1994); National
Association of Government Employees, Local R1-109, 43 FLRA
1140 (1992). Respondent serves as its primary reason for failing to
file an answer to the Complaint as "inexperience and oversight".
Under FLRA guidelines Respondent's reason for not filing an answer
would not constitute a good cause showing which would excuse its
failure to timely file an answer in the matter. Moreover,
Respondent's August 26, 1994 response to the order of the Chief
Administrative Law Judge does not contain any denial that any
material facts were at issue in the case nor does it reveal any
good cause reason for its failure to file a timely answer.
Therefore, no genuine issue of fact exists in the matter and
disposition by summary judgment is proper. U.S.
Department of Treasury, Customs Service, Washington, D.C. and
Customs Service, Region IV, Miami, Florida, 37 FLRA 603, 610
The undisputed facts are that Respondent failed to provide
the required, written answer to grievances on four different
occasions and that it offered no defense for its
actions.(2) It is alleged that
Respondent's failure to provide answers to the grievances at the
final step before arbitration results in the Union having to make a
choice between allowing the grievances to fade without resolution
or of absorbing the costs of arbitration.(3) In support of its position, the General
Counsel argues that Respondent's conduct "strikes at the heart of
the grievance procedure and directly interferes with the statutory
mandate that grievance procedures should provide for an effective
way to resolve grievances."
The facts disclose that Respondent refused to follow the
clear language of the contract on four different occasions. The
General Counsel asserts that Respondent's repeated, intentional
failure to provide a written answer to the grievances at the
Adjutant General's step of the grievance procedure constitutes a
repudiation of the contract in violation of the Statute.
See, Warner Robins Air
Logistics Center, Warner Robins, Georgia, 40 FLRA 1211
(1991). I agree with the General Counsel's assessment of the
matter. In view of the above, it is found that Respondent's failure
to provide written answers to the four grievances herein
constituted a repudiation of the collective bargaining
Inasmuch as Respondent has admitted all allegations of the
Complaint, which if undenied establish a violation of the Statute,
it is found to have committed the alleged unfair labor practice in
violation of section 7116(a)(1) and (5) of the Statute.
Accordingly, it is recommended that the Authority grant
Counsel for the General Counsel's motion for summary judgment and
issue the following:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that The Adjutant General State Of Georgia,
Atlanta, Georgia, shall:
1. Cease and desist from:
(a) Failing and refusing to honor the collective
bargaining agreement it negotiated with South Georgia ARMACT,
Chapter 56, the employees' exclusive representative, by failing and
refusing to provide the required, written answers to grievances at
the Adjutant General's level of the grievance procedure.
(b) In any like or related manner, interfering
with, restraining or coercing its employees in the exercise of
their rights assured by the Federal Service Labor-Management
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Upon request of South Georgia ARMACT,
Chapter 56, provide the required written answer to the grievances
herein at the Adjutant General's level of the grievance
(b) Post at its Adjutant General, State Of
Georgia, Atlanta, Georgia facilities where employees in the
bargaining unit 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 Adjutant
General, 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 insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the
Authority's Rules and Regulations, notify the Regional Director of
the Atlanta Region, 1371 Peachtree Street, NE, Suite 122, Atlanta,
GA 30309-3102, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, September 26, 1994
ELI NASH, JR.
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR
AND TO EFFECTUATE THE
POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT
WE HEREBY NOTIFY OUR
WE WILL NOT fail and refuse to honor the collective bargaining
agreement we negotiated with South Georgia ARMACT, Chapter 56, the
employees' exclusive representative, by failing and refusing to
provide the required, written answers to grievances at the Adjutant
General's level of the grievance procedure.
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 Federal Service Labor-Management Relations
WE WILL upon request of South Georgia ARMACT, Chapter 56,
provide the required written answer to the grievances herein at the
Adjutant General's level of the grievance procedure.
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
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, Atlanta Region, 1371 Peachtree Street, NE, Suite 122,
Atlanta, GA 30309-3102, and whose telephone number is: (404)
The Adjutant General or his representative will give the grievant a written decision within 15 calendar days after receipt of information from the State Chairman's Office.