VA CONNECTICUT HEALTHCARE SYSTEM NEWINGTON, CONNECTICUT and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-109

Other Files: 

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

MEMORANDUM

DATE:

December 12, 2007

TO:

The Federal Labor Relations Authority

FROM:

PAUL B. LANG

Administrative Law Judge

SUBJECT:

VA CONNECTICUT HEALTHCARE SYSTEM

NEWINGTON, CONNECTICUT

Respondent

AND

Case No. BN-CA-06-0354

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R1-109

Charging Party

Pursuant to section 2423.34(b) of the Rules and

Regulations 5 C.F.R. '2423.34(b), I am hereby transferring the

above case to the Authority. Enclosed are copies of my

Decision, the service sheet, and the transmittal form sent to

the parties. Also enclosed are the transcript, exhibits and

any briefs filed by the parties.

Enclosures



UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

VA CONNECTICUT HEALTHCARE SYSTEM

NEWINGTON, CONNECTICUT

Respondent

AND

Case No. BN-CA-06-0354

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R1-109

Charging Party

NOTICE OF TRANSMITTAL OF DECISION

The above-entitled case having been heard before the

undersigned Administrative Law Judge pursuant to the Statute

and the Rules and Regulations of the Authority, the

undersigned herein serves his Decision, a copy of which is

attached hereto, on all parties to the proceeding on this date

and this case is hereby transferred to the Federal Labor

Relations Authority pursuant to 5 C.F.R. '2423.34(b).

PLEASE BE ADVISED that the filing of exceptions to the

attached Decision is governed by 5 C.F.R. ''2423.40-41,

2429.12, 2429.21-2429.22, 2429.24-2429.25, and 2429.27.

Any such exceptions must be filed on or before

JANUARY 14, 2008, and addressed to:

Office of Case Control

Federal Labor Relations Authority

1400 K Street, NW, 2nd Floor

Washington, DC 20424-0001

________________________________

PAUL B. LANG

Administrative Law Judge

Dated:

December 12, 2007

Washington, DC



OALJ 08-06

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C.

VA CONNECTICUT HEALTHCARE SYSTEM

NEWINGTON, CONNECTICUT

Respondent

AND

Case No. BN-CA-06-0354

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R1-109

Charging Party

Philip T. Roberts, Esquire

For the General Counsel

Kimberly M. Jacobs, Esquire

For the Respondent

Before:

PAUL B. LANG

Administrative Law Judge

DECISION

Statement of the Case

This case arises out of an unfair labor practice charge

dated June 16, 2006 (GC Ex. 1(a)), filed by the National

Association of Government Employees (NAGE) against the

Department of Veterans Affairs (VA). On September 10, 2007,

the Regional Director of the Boston Region of the Federal

Labor Relations Authority (Authority) issued a Complaint and

Notice of Hearing (GC Ex. 1(c)) in which it was alleged that

the VA Connecticut Healthcare System, Newington, Connecticut

(Respondent) committed an unfair labor practice in violation

of §7116(a)(1) and (5) of the Federal Service Labor-Management

Relations Statute (Statute) by repudiating a provision of the

master collective bargaining agreement between the VA and

NAGE. It was further alleged that the Respondent's repudiation occurred by virtue of its refusal to form a facility

level Training and Career Development Committee. NAGE,


- 2 Local R1-109 (Union) was named as the agent of NAGE for the

purpose of representing a collective bargaining unit of the

Respondent's employees at its Newington facility. The

Respondent filed a timely Answer (GC Ex. 1(i)) in which it

raised certain affirmative defenses and denied that it had

committed the unfair labor practice as alleged.

A hearing was held in Hartford, Connecticut on

October 23, 2007. The parties were present with counsel and

were afforded the opportunity to present evidence and to

cross-examine witnesses. This Decision is based upon

consideration of the evidence and of the post-hearing briefs

submitted by the parties.

Positions of the Parties

General Counsel

The General Counsel maintains that Article 19,

Section 2A of the Master Agreement between the VA and NAGE

(Joint Ex. 1, p. 64) obligates the Respondent to form a

Training and Career Development Committee (Training Committee)

solely for the bargaining unit represented by the Union.

Instead, the Respondent formed a Training Committee which

included, in addition to the Union, representatives of two

other bargaining units of the Respondent's employees at its

Hartford and Newington facilities. The General Counsel

further alleges that the Respondent's breach of the Master

Agreement was clear and patent. Furthermore, the Training

Committee is the sole venue for addressing training issues

other than the grievance procedure and is, therefore, at the

heart of the Master Agreement.

The General Counsel denies that the Union's unfair labor

practice charge was untimely filed. The Union was entitled to

accept the Respondent's assurances that it would create the

Training Committee in accordance with the Master Agreement.

Regardless of the composition of the Training Committee, the

Respondent was not justified in significantly delaying the

formation of any such committee.

The General Counsel also denies that the unfair labor

practice charge is barred under §7116(d) of the Statute. The

prior grievance by the Union arose out of the Respondent's

alleged breach of Article 19, Section 2A of the Master

Agreement; the grievance did not raise the additional issues

which are elements of the charge of repudiation. Therefore,

the issues in the instant case are not substantially similar

to those of the grievance.


- 3 Respondent

The Respondent maintains that its Hartford and Newington

campuses have been integrated and that they constitute a

single "facility" within the meaning of the Master Agreement.

Accordingly, it did not breach the Master Agreement when it

formed a single Training Committee which includes representatives of all three of the bargaining units, including the unit

represented by the Union, at West Haven and Newington. The

Respondent's formation of a single Training Committee is

consistent with the practice at other VA facilities with

multiple bargaining units. Alternatively, the Respondent

maintains that any breach of the Master Agreement was not

clear and patent.

The Respondent denies that the Training Committee carries

out collective bargaining and maintains that Article 10,

Section 5 of the Master Agreement (Joint Ex. 1, p. 24) has

specific language which provides for mid-term bargaining.

Therefore, its refusal to form a separate Training Committee

for the Union relates to a subject that is covered by an

existing collective bargaining agreement.

The Respondent argues that the Authority lacks jurisdiction in this case in view of the fact that, on October 7,

2005, the Union initiated a grievance over the Respondent's

alleged violation of Article 19, Section 2A of the Master

Agreement. Accordingly, the Complaint should be dismissed

pursuant to §7116(d) of the Statute. The Respondent also

maintains that the Complaint should be dismissed pursuant to

§7118(a)(4) of the Statute because the underlying unfair labor

practice charge was untimely filed.

Findings of Fact

The Respondent is an agency within the meaning of

§7103(a)(3) of the Statute. NAGE is a labor organization as

defined in §7103(a)(4) of the Statute. The Union is the agent

of NAGE for representing bargaining unit employees who are

assigned to the Respondent's Newington medical center. At all

times pertinent to this case the VA and NAGE were parties to a

Master Agreement (Joint Ex. 1) which went into effect on

November 28, 2003. The Respondent and the Union were parties

to a Supplemental Labor-Management Agreement (Supplemental

Agreement) (Joint Ex. 2) which went into effect on April 25,


- 4 1983, and which covered bargaining unit employees assigned to

the Newington Medical Center. 1/

The Respondent consists of medical centers at Newington

and West Haven as well as several community-based outpatient

clinics, a regional office and a veterans benefits facility;

the Newington and West Haven campuses were consolidated around

1995. In addition to the Union, which represents

nonprofessional employees at Newington, the Respondent also

bargains with two locals of the American Federation of

Government Employees (AFGE). One of the AFGE locals

represents professional employees at both Newington and West

Haven, while the other AFGE local represents nonprofessional

employees, including those at the veterans benefits office and

the community-based outpatient clinics (Tr. 20, 21).

Contractual Language

Article 19 of the Master Agreement, entitled "TRAINING

AND CAREER DEVELOPMENT", states, in pertinent part:

Section 2 - Local Training Committees

A.

There shall be a facility level Training and

Career Development Committee which will be

authorized to reach joint agreements, and make

joint recommendations regarding training and

career development programs.

B.

The number of Local representatives on the

Training Committee is a subject for local

bargaining. . . .

(Joint Ex. 1, p. 64)

Article 10 of the Master Agreement, entitled "NATIONAL

CONSULTATION RIGHTS AND MID-TERM BARGAINING" states, in

pertinent part:

Part B:

Midterm Bargaining

Section 1 - Definitions

Mid-term bargaining is defined as all negotiations,

including Local, Union, Department or Management

1/ Although the initial terms of the Master and local

agreements have expired, the parties have agreed to extend

them for another term (Tr. 21).


- 5 initiated, which occur during the duration of this

Agreement, concerning changes to conditions of

employment not covered by the terms of this

Agreement. Nothing shall preclude the Parties from

negotiating procedures and appropriate arrangements

which management officials will observe in

exercising any rights under 5 USC § 7106.

. . .

Section 5 - Local Level Bargaining

A.

Management shall notify the Local in writing

prior to the planned implementation of proposed

changes that affect conditions of employment and

shall simultaneously provide copies of documents

relied upon for the proposed changes. The

method of notification, whether electronic or

other, will be a subject for local negotiations.

. . .

E.

Nothing in this section restricts the Local from

initiating local mid-term bargaining over issues

not contained in published facility policies or

covered by this Agreement. . . .

(Joint Ex. 1, pp. 20, 21, 24)

Article 11, entitled "LOCAL SUPPLEMENTAL AGREEMENTS"

states, in pertinent part:

Section 1 - General

Contract provisions contained in Local

Contracts/Supplements in existence prior to the

Master Agreement will continue in effect, provided

they do not conflict with the Master Agreement.

Whenever any subject is addressed in the Master

Agreement, the terms of the Master Agreement shall

prevail over the provisions of the Local agreement

concerning the same subject. Recognizing that the

Master Agreement cannot cover all aspects or provide

definitive language for local adaptability on each

subject addressed, it is understood that Local

Supplemental Agreements may include substantive

bargaining on all subjects covered in the Master

Agreement provided they do not conflict, interfere

with, or impair implementation of the Master


- 6 Agreement. Supplemental Agreements must be approved

pursuant to statute.

Section 2 - Procedures for Local Supplemental

Agreements

. . .

B.

Negotiation for a Local Supplemental Agreement

will be conducted between Local and Management

representatives and the Agreement shall be

applicable only in such facilities represented

by the Local representatives who executed the

agreement.

(Joint Ex. 1, p. 26)

The Controversy Over the Training Committee

By an e-mail message dated May 12, 2004 (GC Ex. 2), John

Valenti, the Union President, forwarded to Charles Lee, a

Labor Relations Specialist and chief negotiator for the

Respondent, a memorandum dated May 11, 2004 (GC Ex. 3)

containing the Union's proposals regarding tuition support.

The first of those proposals was that:

The Employer shall create a local facility

training and career development committee comprised

of three Labor and three Management representatives

(see NAGE Master Contract Article 19)[.]

Lee eventually responded to Valenti by an e-mail message

dated August 23, 2004 (GC Ex. 5), in which he forwarded a

proposed policy regarding the Hospital Education Committee.

According to the proposed policy, the committee would be

composed of three representatives of the Respondent and

representatives of each of the three local unions, including

the Union, representing bargaining units at the Respondent's

Newington and West Haven campuses. Valenti replied on

September 9, 2004, by an e-mail message (GC Ex. 6) in which he

forwarded his message to Lee of August 23, 2004, and stated,

"I have already replied to this issue (below)". Lee and

Valenti subsequently exchanged messages (GC Ex. 7, 8) in which

the Respondent and the Union reiterated their respective

positions, which remained unchanged, regarding the composition

of the committee.

On December 20, 2004, Karen Waghorn, the Respondent's

Associate Director, sent an e-mail message to Valenti and


- 7 others announcing the formation of an Employee Support

Committee and a Steering Council. The stated purpose of the

Steering Council was to:

. . . develop the policy governing the committee

scope and practices, recommend membership, and

develop procedures for coordinating and scheduling

activities . . . .

Waghorn also proposed that the Steering Council:

. . . examine the purpose and function of the

following committees and plan for appropriate

interface.

(GC EX. 9, p. 1)

Among the named committees was Education/Tuition Support.

Waghorn listed examples of employee services that might fall

under the purview of the Employee Support Committee, including

"Employee training programs and tracking; mandatory training

requirements; orientation" (GC EX. 9, p. 2)

Finally, Waghorn requested that the presidents of the two

AFGE locals and of the Union, or their designees, participate

along with seven others in the work of the Steering Council.

Valenti testified that he interpreted the Respondent's

position as delaying the creation of the Training Committee

until after the Employee Support Council 2/ had addressed the

subject (Tr. 39).

Valenti responded to Waghorn by e-mail message dated

December 22, 2004, stating that the functions of the Employee

Support Committee were already covered by collective

bargaining agreements and that the committee had no authority

to alter those agreements. He further stated that:

Where a subject is not covered, and concerns general

conditions of employment, NAGE will exercise formal

bargaining rights. The committee is rejected.

(GC Ex. 9)

On April 13, 2005, Valenti sent an e-mail message to Lee

and Edward Kobylanski, a site manager, with copies to other

Union officers (GC Ex. 10) in which he requested that the

2/ The Employee Support Council was sometimes called the

Employee Support Committee.


- 8 issue of the Training Committee be added to the agenda of the

next semi-weekly midterm bargaining session; he attached a

copy of his proposal of May 12, 2004, regarding a separate

Training Committee for the Union (Tr. 40, 41).

On April 21, 2005, Valenti sent an e-mail message to Lee

(GC Ex. 11) asking for the Respondent's proposals concerning

various issues including the Training Committee. According to

Valenti, he received no response (Tr. 42). The parties

eventually bargained over the issue and the Union

unsuccessfully sought the aid of the Federal Service Impasses

Panel (Tr. 55, 56).

On October 7, 2005, the Union initiated a grievance (GC

Ex. 12) in which it stated:

Matter Grieved: It is the Union's position that the

Employer has violated the terms and conditions [of]

the parties' Master collective bargaining agreement

by failing to create or provide the Union with [a]

local training committee as provided for by

Article 19 section 2, of the agreement.

Relief Sought: The Employer shall create or provide

the Union with a local training committee as

provided for by Article 19 section 2, of the parties

Master collective bargaining agreement, and shall

fulfill all bargaining obligations concerning the

creation of the committee.

The grievance was directed to Roger Johnson, Respondent's

Director, by e-mail; Valenti received an electronic receipt

that the message had been opened by Johnson or by someone on

his behalf on the same date (Tr. 43; GC Ex. 13).

On November 23, 2005, Valenti sent an e-mail message to

Johnson (GC Ex. 14) in which he stated that:

The agency did not meet or respond to the

attached grievance within contractual time frames.

Pursuant to Article 44 section 7 of the Master

Agreement, the grievance is resolved in favor of the

grievant (Union) please implement the remedy.

Valenti received no response to the grievance or to his

message (Tr. 44, 45).


- 9 The portion of the Master Agreement cited by Valenti

states:

Should Management fail to comply with the time

limits of Step 1, the grievance may be advanced to

Step 2. Should Management fail to comply with the

time limits for rendering a decision at Step 2 or

Step 3, the grievance shall be resolved in favor of

the grievant, provided the following exists:

1.

2.

Receipt of the grievance has been

acknowledged, in writing by Management at

the appropriate step in the grievance

procedure; and

That the remedy requested by the grievant

is legal and reasonable under the

circumstances.

(Joint Ex. 1, p. 129)

Step 1 of the grievance procedure is for the grievance to be

presented to the immediate or acting supervisor. Step 2 is

for its submission to an appropriate management official

(Joint Ex. 1, pp. 127, 128).

Neither the Union nor the General Counsel have alleged,

in the instant case or in any other proceeding before the

Authority, that the Respondent has committed an unfair labor

practice because of its failure to comply with the grievance

procedure. On September 22, 2006, the Union filed an unfair

labor practice charge against the Respondent, identified as

Case No. BN-CA-06-0536, alleging that, beginning on or about

December 16, 2005, the Respondent failed to bargain in good

faith by unilaterally creating the Employee Support Council

(Council) and naming the Union as a member. The Regional

Director refused to issue a complaint; his decision was

affirmed by the General Counsel on February 8, 2007 (Resp.

Ex. 25). 3/

The refusal of the Regional Director to issue a complaint

and the General Counsel's affirmance of that decision is of no

significance since, pursuant to §2423.11(f) and (g) of the

Rules and Regulations of the Authority, the General Counsel's

action in such matters is final. Such action by the General

Counsel does not constitute a decision by the Authority and

3/ The court reporter has labeled the Respondent's exhibits

with the letter "A" for agency; I will cite them in the

customary manner.


- 10 creates no precedent. Furthermore, the General Counsel's

decision in the prior case is no bar to the later issuance of

a complaint based upon the same alleged violation of the

Statute.

The Formation and Operation of the Council and the Training

Committee

On December 14, 2005, Margaret Owens, a management

representative of the Respondent, sent an e-mail message (GC

Ex. 15) to Valenti and the Presidents of the two AFGE locals

informing them that the Respondent had recently established

the Council and that its first meeting would take place on

December 16, 2005. Owens attached a copy of the Council

charter. Among the stated functions of the Council was to:

Develop and

development

Connecticut

prepared to

Connecticut

future.

implement education & employee

programs that will ensure that the VA

Healthcare System's workforce is

meet the challenges facing the VA

Healthcare System today and into the

According to the charter, the Council Chair is to be appointed

by the Medical Center Director. The Council is to report to

the Governing Board. Among the listed standing committees and

boards is the Education/Tuition Support Committee. Owens

signed the charter as Council Chair on November 10, 2005, and

Johnson signed on November 14, 2005. There is no provision

for signatures on behalf of the Union or the AFGE locals

(Resp. Ex. 8).

Sadiann Ozment is the Director of Hospital Education

Services and a member of the Council. One of the

responsibilities of the Council was to create a Training

Committee of which Ozment is the Chair (Tr. 73, 74). The

Training Committee makes recommendations to the Council which,

in turn, makes recommendations to the Medical Center Director;

the Director has the ultimate authority to approve the

recommendations. Both the Training Committee and the Council

operate by consensus; the only agreements reached by the

Training Committee are on the substance of its

recommendations. The Training Committee has not yet failed to

reach an agreement on a recommendation (Tr. 76, 78-81).

On September 7, 2006, Owens sent an e-mail message to

Ozment and others, including Valenti, reminding them of a

Council meeting on September 8. Valenti responded on the same

date stating:


- 11 NAGE is NOT a part of this counsel [sic] and has

advised the employer that it will exercise formal

bargaining rights concerning ALL issues addressed by

the counsel over which it is entitled to do so. I

remind the employer of its contractual and statutory

obligations to provide the Union with formal notice

and opportunity to bargain concerning inter alia,

any of [sic] changes to policies, practices, and

working conditions addressed by this counsel PRIOR

to any implementation. The employer acts at its own

peril in failing to meet its obligations. The union

has not authorized the employer to reference the

NAGE as a party or participant in any minutes, or

counsel proceedings.

(Resp. Ex. 17)

Valenti's message is consistent with his prior messages

demanding what he characterized as the Union's contractual

right to a Training Committee and demanding to bargain over

any initiatives arising out of Training Committee

recommendations (GC. Ex. 17-19). It is significant to note

that Valenti never specifically stated that he objected to the

Union being on the same Training Committee as the

representatives of the two AFGE locals.

On January 12, 2007, Ozment and Owens signed a document

entitled, "Training and Career Development Committee 20062007" (Resp. Ex. 24). Ozment testified that this is the

charter of the Training Committee which was developed in

concert with the Council (Tr. 77, 78). The charter provides,

in pertinent part, that:

The Committee will be chaired by an Education

Program representative as appointed by the Director

of the Education Program. The Committee will report

directly to the Employee Support Council.

. . .

The Committee is authorized to establish and support

implementation plans . . . subject to approval by

the Medical Center Director. . . . charge letters

and potential membership for committees must be

reviewed and approved by the Employee Support

Council.


- 12 According to Lee, the Union has consistently maintained

that committees do not bargain (Tr. 124). Furthermore, during

the course of the hearing counsel for both the General Counsel

and the Respondent stated that they did not contend that

either the various committees or the Council engage in

collective bargaining (Tr. 94). Lee further testified that,

on July 30, 2007, he forwarded to Valenti and the representatives of the two AFGE locals copies of a proposed policy on

training and career development for their review (Resp.

Ex. 9). Although the policy had been recommended by the

Training Committee with the concurrence of the representative

of AFGE Local 1674 (a representative of the other AFGE local

apparently had not attended the meeting in which the action

was taken), it was still subject to review by AFGE Local 1674

since the AFGE locals also maintain that the deliberations of

the Training Committee do not constitute collective bargaining

(Tr. 125, 126). During cross-examination Ozment acknowledged

that, while the Training Committee does not engage in

collective bargaining, its recommendations are afforded

significant weight and that the Director has adopted some of

those recommendations (Tr. 88, 89).

Bargaining History

Lee testified that, on December 8 and 9, 2004, he

attended a meeting at which representatives of the VA and NAGE

introduced the Master Agreement to bargaining unit employees.

Four representatives of the Union also attended, including

Valenti. Lee identified a transcript of the training session

as well as the positions of some of the persons who spoke

(Tr. 101-103; Resp. Ex. 3) 4/. Mr. Haltigan, a VA representative, stated:

We have no definitions in the master contract. This

was an item we went back and forth with on negotiations. And you're not going to find a list of

definitions anywhere. This could be problematic at

some places. For example, I'll mention right away

people, we didn't get many questions, by the way, or

problems so far. But one of them was - what is a

facility? And we intentionally did not define a

facility. Management certainly has the right, and I

don't think there's any disagreement, to organize.

And so in that case management will define a

facility however they define it. Now obviously when

4/ The Respondent introduced an excerpt of the transcript;

accordingly, the pages in the record are not numbered

consecutively.


- 13 they organize and change conditions of employment,

then they have to meet all of the bargaining

obligations that go along with that. . . .

(Resp. Ex. 3, p. 4)

Ms. Pitts, a union negotiator, stated:

We tried to make this contract straightforward, and

you should be able to read it, interpret it. We

didn't come up with definitions because we had a

hard time ourselves. So we struggled, and that's

why we don't have definitions.

(Resp. Ex. 3, p. 5)

Haltigan further stated:

. . . I'm going to go ahead and start on Article 19,

Training and Career Development. . . . But

Section 2 is the key point here that the training

committee locally is going to be basically decided

by the parties at the local facility, including the

number of union representatives on the training

committee. And I know we've had issues about how

many committees and what's a facility and so

on . . . .

(Resp. Ex. 3, p. 52)

The above language is consistent with the testimony of George

Pearson, the Chief of Human Resources at the VA Medical Center

in Coatesville, Pennsylvania and a member of the VA

negotiating team for the Master Agreement. According to

Pearson, proposals by management to define the term "facility"

were presented but were eventually dropped (Tr. 168, 169).

The General Counsel has not cited any portion of the

Supplemental Agreement in which the term "facility" is

defined. Article III of the Supplemental Agreement (Joint

Ex. 2, p. 1), entitled "Definitions" contains only a

definition of an emergency. There is no other evidence of

either an oral or written agreement between the Union and the

Respondent as to what constitutes a facility.

The Respondent submitted evidence to show that other VA

facilities had single training committees in spite of the fact

that they each had more than one bargaining unit (Tr. 129-138;

Resp. Ex. 27-29). I have assigned no weight to that evidence


- 14 because the Respondent has not shown whether those committees

were established over the objections of the various unions.

Furthermore, Lee testified that the Respondent did not consult

with VA management at other locations before establishing a

single Training Committee (Tr. 134).

Upon consideration of the foregoing evidence, I find as a

fact that neither the Master or Supplemental Agreements, nor

any other agreement between the Union and the Respondent,

defines the term "facility" either directly or by implication,

nor is there any allegation or evidence of a past practice

concerning the structure of committees at the Respondent's

Newington or West Haven campuses. Furthermore, the statements

by VA and NAGE representatives at the contract meeting on

December 8 and 9, 2004, indicate that NAGE accepted the

proposition that decisions as to the structure of facilities

are within the purview of the VA, but without prejudice to the

right of NAGE to require notice and bargaining over resulting

changes to conditions of employment.

Discussion and Analysis

Preliminary Defenses

Limitations. Section 7118(a)(4)(A) provides that no

complaint shall be issued on the basis of an alleged unfair

labor practice that occurred more than six months before the

filing of the unfair labor practice charge. Since the Union

filed its unfair labor practice charge on June 16, 2006, the

charge was timely if the unfair labor practice occurred on or

after December 16, 2005. The evidence shows that the parties

engaged in a prolonged period of correspondence beginning on

May 12, 2004, when the Union first proposed the formation of a

Training Committee (GC Ex. 2) to September 7, 2006, when the

Union informed the Respondent that it would not be part of the

recently formed Council whose purpose included the creation of

a Training Committee (Resp. Ex. 17). Again, the Union never

specifically stated that it was insisting on a separate

Training Committee for its own bargaining unit, but kept

insisting that the Respondent adhere to Article 19, Section 2

of the Master Agreement. Nevertheless, the Respondent has not

alleged that it was unaware of the Union's position. While it

is less clear when the Union first became aware of the

Respondent's intention to form a single Training Committee,

the composition of the Council, which included all three labor

organizations, could not have been an encouraging sign.

Whether or not by coincidence, the Union filed the unfair

labor practice charge exactly six months after the first

meeting of the Council, which was the earliest date on which


- 15 the Council could have recommended the formation of a Training

Committee.

It is of no consequence that the unfair labor practice

charge could have been filed earlier because of the delay in

the formation of the Training Committee. The charge was not

untimely and is not barred by limitations.

The prior grievance. Section 7116(d) of the Statute is

an election-of-remedy provision which requires an aggrieved

party to choose between the submission of a grievance and the

filing of an unfair labor practice charge. Each of the

parties has cited Authority precedent to the effect that an

essential element to the application of that provision is that

the subject matter of the grievance is the same as that of the

unfair labor practice charge, i.e., that each of the

proceedings must arise out of the same factual circumstances

and that the legal theories in support of each claim are

substantially identical, Dep't of Homeland Security, 61 FLRA

272 (2005). There can be no valid doubt that the factual

basis of the prior grievance and the requested relief, other

than the posting of a notice, are identical to those of the

underlying unfair labor practice charge and of the Complaint.

The legal theories are another matter. The only legal issue

in the grievance was whether the Respondent had breached

Article 19, Section 2, of the Master Agreement. In order to

meet her burden of proof in the instant case, the General

Counsel must show not only that a breach occurred, but that

the breach was clear and patent and that the provision in

question is at the heart of the agreement, Dep't of Defense,

Warner Robins Air Logistics Center, Robins Air Force Base,

Georgia, 40 FLRA 1211, 1218 (1991) (Warner Robins). The

Authority has held that repudiation is an independent

violation of the Statute, U.S. Dep't of Labor, Occupational

Safety and Health Administration, Chicago, Illinois, 19 FLRA

454, 467 (1985).

In U.S. Dep't of Labor, Washington, D.C., 59 FLRA 112

(2003), a case essentially on point, the Authority held that

an unfair labor practice charge of repudiation was not a bar

to a grievance for breach of the same contractual provision.

If that precedent is to be re-examined, the Authority, rather

than an Administrative Law Judge, must do so. Accordingly, I

am bound by the holding of the Authority and must deny the

Respondent's request that the Complaint be dismissed pursuant

to §7116(d) of the Statute.


- 16 The Nature of the Alleged Breach of Contract

The Union and the General Counsel maintain that

Article 19, Section 2 of the Master Agreement requires the

Respondent to create a separate Training Committee for the

Union and that the Respondent breached the Master Agreement

when it established a committee which included representatives

of the AFGE locals. In spite of that contention the Union

never stated that it wanted such a committee. Rather, the

Union, through Valenti, repeatedly insisted that the

Respondent comply with the Master Agreement while declaring

that it would not participate in the deliberations of the

Council or the Training Committee. Indeed, the relief which

the Union sought through the grievance procedure was similarly

non-specific as is the Order and Notice proposed by the

General Counsel. If the vague claims for relief by the Union

and the General Counsel are motivated by a deliberate

strategy, the strategy is not obvious and has not been

explained.

Apparently the Union was so sure of its position that its

initial proposal regarding the composition of the Training

Committee (GC Ex. 2) was that the committee be comprised of

"three Labor and three Management representatives" rather than

that the Union itself have three representatives. The

Respondent acquiesced to the Union's proposal and responded

with a draft of a policy in which the Training Committee was

to include representatives of each of the three labor

organizations (GC Ex. 5). The Union never stated in writing

that it did not consider representatives of the two AFGE

locals to be "Labor" representatives within the meaning of its

proposal. However, Lee testified that there was disagreement

over whether all of the labor representatives should have been

from the Union (Tr. 113).

The language of the Master Agreement and the explanation

of its language at the training session of December 8 and 9,

2004 (Resp. Ex. 3), indicate that the Master Agreement

contains no definition of a "facility", that such definition

is within the purview of the VA in the first instance and that

the details of the composition and operation of the committees

were left to local bargaining.

Both Valenti and Lee

testified that the Newington and West Haven campuses have been

integrated since around 1995 (Tr. 21, 99). While the

integration of the campuses supports the Respondent's position

that the Newington and West Haven campuses were a single

facility within the meaning of the Master Agreement, that does

not absolutely preclude the formation of a facility-wide

Training Committee only for the Union. However, it is


- 17 somewhat far fetched to suppose that the Master Agreement

requires such a separate committee for the Union, in the

absence of specific language to that effect, when the

bargaining unit represented by the Union consists only of

employees assigned to Newington.

The proposition that the Respondent breached the Master

Agreement at all, let alone that its breach was clear and

patent, is at odds with all of the evidence as cited herein.

I need not decide whether the Master Agreement requires the

establishment of a separate Training Committee for the Union

in order to conclude that the construction of the Master

Agreement by the Respondent was reasonable and, therefore, its

breach, if any, was not clear and patent as required by Warner

Robins and similar holdings by the Authority.

The Significance of Article 19

The General Counsel appears to have partially retreated

from her concurrence with the proposition that the Training

Committee does not engage in collective bargaining. In the

conclusion to her post-hearing brief the General Counsel

asserts that Article 19 of the Master Agreement is the "sole

vehicle addressing training issues short of filing a

grievance" (GC brief, p. 15). Presumably, if I were to accept

that assertion, I would then conclude that Article 19 is at

the heart of the Master Agreement.

The problem with the General Counsel's position is that

it flies in the face of the evidence that the parties met

twice a week to conduct mid-term bargaining. There is nothing

in the language of Article 10 of the Master Agreement that

excludes the composition of committees from the scope of such

bargaining, nor is there any evidence to show that the

Respondent refused to discuss the subject. To the contrary,

the evidence submitted by both parties shows that there was

hard bargaining, often by e-mail, over the composition of the

Council and the Training Committee and that the Union

considered the parties to have reached an impasse.

In U.S. Dep't of Transportation, Federal Aviation

Administration, Standiford Air Traffic Control Tower,

Louisville, Kentucky, 53 FLRA 312, 319 (1997) the Authority

recognized that the definition of collective bargaining set

forth in §7103(a)(12) of the Statute does not prescribe any

particular method by which collective bargaining may occur.

Thus, the designation of a body as the Training Committee does

not, in itself, mean that the committee could not have engaged

in collective bargaining. However, the undisputed evidence


- 18 shows that the Training Committee did not, in fact, engage in

collective bargaining. The committee itself was formed upon

the recommendation of the Council; the charters of the Council

and the Training Committee were issued solely by the

Respondent. The function of the Training Committee is to make

recommendations to the Council which, in turn, makes

recommendations which are subject to the approval of the

Director of the Medical Center. Each of the labor

organizations with which the Respondent bargains has the right

to name a representative to the Training Committee, but the

Respondent's representatives far outnumber those of the labor

organizations. Furthermore, the Training Committee, like the

Council, makes decisions by consensus.

In summary, the proceedings of the Training Committee

have none of the indicia of collective bargaining, especially

in light of the unambiguous language of Article 10 which

provides for midterm bargaining. The language of Article 19,

Section 2A, by which the Training Committee is authorized to

reach joint agreements, does not support a contrary

conclusion. The actual functioning of the Training Committee

suggests that the term "joint agreements" refers to the

formulation of recommendations. As a practical matter, the

Training Committee may make recommendations which would

obviate the need for bargaining or motivate either of the

parties to initiate bargaining. However, there is nothing in

the Master Agreement to suggest that, in participating in the

work of the Training Committee, the Union would be waiving or

compromising its right to conduct midterm bargaining in

accordance with Article 10.

The determination as to whether a contractual provision

is at the heart of an agreement must, by its very nature, be

made on a case-by-case basis. There would be no question if

the composition of the Training Committee were the sole

subject of a memorandum of understanding. In this case the

language in dispute is part of a Master Agreement consisting

of 64 articles which cover the full range of subjects

governing the relationship between the parties. While the

Training Committee may serve a useful purpose, it cannot be

considered as an essential element of the agreement. The

reliance of the General Counsel on Office of the Adjutant

General, Missouri National Guard, Jefferson City, Missouri,

58 FLRA 418 (2003) is misplaced. That decision, as well as

the underlying decision of the Administrative Law Judge,

turned on the affirmative defense that the repudiated

provision of the collective bargaining agreement was contrary

to law. The agency did not deny that the contractual


- 19 provision, which involved a uniform allowance, was at the

heart of the agreement.

As shown above, I have concluded that the General Counsel

has not supported her burden of proof that the alleged breach

of the collective bargaining agreement was clear and patent or

that the provision in question was at the heart of the

agreement. Accordingly, I have concluded that the Respondent

did not commit an unfair labor practice by failing to

establish a separate Training Committee for the Union. 5/ I

recommend that the Authority adopt the following Order:

ORDER

It is hereby ordered that the Complai