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17:0408(64)CA
The decision of the Authority follows:
17 FLRA No. 64
HARRY S. TRUMAN MEMORIAL VETERANS
HOSPITAL, COLUMBIA, MISSOURI
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3399
Charging Party
Case No. 7-CA-628
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
parties' stipulation of facts, accompanying exhibits, and the
contentions of the parties, the Authority finds:
The amended complaint herein alleges that the Respondent, Harry S.
Truman Memorial Veterans Hospital, Columbia, Missouri, violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute), /1/ when it denied a request made by the Charging
Party, American Federation of Government Employees, AFL-CIO, Local 3399
(the Union), to negotiate the subject of official time for the Union to
prepare for negotiations resulting from mid-term changes in personnel
policies, practices, and matters affecting employees' working conditions
proposed by the Respondent.
On February 28, 1980, the unit of Respondent's employees exclusively
represented by the Union became part of a nationwide consolidated unit
represented by the National Veterans Administration Council, American
Federation of Government Employees (AFGE). /2/ On April 21, 1980, an
interim memorandum of agreement was entered into between the newly
certified exclusive representative of the nationwide unit and the
Respondent. Article 5 of that agreement allowed constituent union
locals, of which AFGE Local 3399 was one, and local Agency facilities to
continue then-pending negotiations for collective bargaining agreements
covering the local facilities. However, it did not allow such local
negotiations, excluding impasses, to continue past May 30, 1980.
Article 6 of the interim agreement provided further that "(a)ny local
changes in personnel policies, practices or other matters affecting
conditions of employment initiated by VA management at its local
facilities, which are not covered by a local agreement, shall be
submitted to local union representatives."
From 1979 through May 30, 1980, the Union and Respondent were
involved in the negotiation of a local collective bargaining agreement.
On or before June 15, 1980, Respondent and the Union submitted numerous
items to the Federal Service Impasses Panel (the Panel). The items
submitted to the Panel did not include provisions concerning official
time for Union negotiators to prepare for either mid-term or renewal
contract negotiations, nor was this a subject of the negotiations
between the parties during the term of their bargaining.
Prior to June 9, 1980, the Union had been advised by the Respondent
that certain changes in personnel policies, practices, and matters
affecting employees' working conditions would be taking place separate
and apart from items addressed during negotiations for the collective
bargaining agreement and not including the issue of preparatory time for
either mid-term or contract negotiations. In a letter dated June 9,
1980, the Union requested to meet with management representatives to
negotiate the use of official time to prepare for negotiations over the
above mid-term items. By letter dated June 17, 1980, Respondent refused
the Union's request to negotiate concerning official time for the
purpose of preparing for mid-term negotiations. The Union reiterated
its request for negotiations over preparatory time for mid-term
negotiations by letter dated June 18, 1980. The Respondent again denied
the request by letter dated June 20, 1980, asserting that it did not
have an obligation to bargain over the Union's unilaterally-initiated
proposal concerning preparatory time for mid-term negotiations.
The complaint raises the question of the Union's right to negotiate
for official time to prepare for mid-term bargaining on issues presented
by management. The Respondent contends that it has no obligation under
section 7131(d) of the Statute /3/ to negotiate over official time in
the circumstances, which it characterizes as a union-initiated proposal
outside the context of contract negotiations. However, management's
notice to the Union of proposed mid-term changes in employees'
conditions of employment clearly gave rise to a duty to bargain over
such proposed changes, and it is well established that a union has the
right under section 7131(d) to negotiate concerning official time to
prepare for such bargaining. /4/ Therefore, the Respondent's contention
that it had no duty to bargain concerning the Union's request for
official time to prepare for negotiations because such request was a
separate proposal outside the context of required bargaining must be
rejected. Rather, the Union's request was precipitated by and directly
related to the Respondent's proposed changes in unit employees'
conditions of employment. Indeed, the request was to negotiate for
official time to prepare for the very impact negotiations which would be
the Union's right pursuant to management-initiated changes. /5/
Similarly unpersuasive is the Respondent's contention that even if it
were obligated to negotiate in these circumstances, it was precluded
from doing so by the memorandum of agreement between the Veterans
Administration and AFGE at the consolidated level of exclusive
recognition. Thus, it argues that the proposal to negotiate official
time to prepare for bargaining, made on June 9, 1980, was after May 30,
1980, the date beyond which local negotiations over existing collective
bargaining agreements would no longer be permitted under the memorandum.
Official time to prepare for the negotiations herein, however, does not
concern the existing collective bargaining agreement. Rather, time to
prepare for bargaining was a proposal directly and specifically related
to issues initiated by the Respondent in June 1980, presumably under
Article 6 of the interim agreement which specified that changes in
conditions of employment initiated by local VA management and not
covered by local agreement were to be submitted to local union
representatives.
Moreover, the Respondent's contention that the existing agreement
"fully incorporated" the "parameters of official time" and its
suggestion that there is thus no duty to negotiate over official time to
prepare for bargaining because that is not mentioned specifically in the
contract, cannot be sustained. Thus, as noted, the issue of preparation
time herein is related to the proposed changes initiated by the
Respondent and, unless specifically precluded by the negotiated
agreement, is itself a negotiable matter concerning which the Union had
the right to bargain under section 7131(d) of the Statute. Absent a
clear and unmistakable expression of such intent, a party will not be
deemed to have waived a statutory right such as that granted by section
7131(d) to negotiate official time as herein. See Library of Congress,
9 FLRA 427 (1982); Department of the Air Force, Scott Air Force Base,
Illinois, 5 FLRA 9 (1981).
In view of the foregoing, it is concluded that the Respondent
violated section 7116(a)(1) and (5) of the Statute by refusing to
negotiate over the Union's request for official time to prepare for
mid-term bargaining on proposals by the Respondent to change personnel
policies, practices, and matters affecting employees' working
conditions.
ORDER
Pursuant to section 7118 of the Statute and section 2423.29 of the
Authority's Rules and Regulations, the Authority hereby orders that the
Harry S. Truman Veterans Memorial Hospital, Columbia, Missouri, shall:
1. Cease and desist from:
(a) Failing and refusing to negotiate with American Federation of
Government Employees, AFL-CIO, Local 3399, concerning official time to
prepare for mid-term bargaining over proposed changes in personnel
policies, practices, and matters affecting unit employees' working
conditions initiated by the Respondent prior to June 9, 1980.
(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 Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, negotiate with American Federation of Government
Employees, AFL-CIO, Local 3399, concerning official time for union
representatives to prepare for the negotiation of proposed changes in
personnel policies, practices, and matters affecting unit employees'
working conditions.
(b) Post at its facility at 800 Stadium Road, Columbia, Missouri,
65201, 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 Director, Harry S. Truman Veterans Memorial
Hospital, Columbia, Missouri, or his designee, 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 said 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 Region VII, 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, D.C., April 4, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to negotiate with American Federation of
Government Employees, AFL-CIO, Local 3399, concerning official time to
prepare for mid-term bargaining over proposed changes in personnel
policies, practices, and matters affecting unit employees' working
conditions initiated prior to June 9, 1980. 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 Statute. WE WILL, upon request, negotiate with the American
Federation of Government Employees, AFL-CIO, Local 3399, concerning
official time for union representatives to prepare for the negotiation
of proposed changes in personnel policies, practices, and matters
affecting unit employees' working conditions.
(Activity)
Dated: . . . By: (Signature) 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 its provisions, they
may communicate directly with the Regional Director, Region VII, the
Federal Labor Relations Authority, whose address is: Federal Building &
U.S. Customs House, 1531 Stout Street, Suite 301, Denver, Colorado 80202
and whose telephone number is: (303) 837-5224.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ Such consolidated unit was certified in Veterans Administration,
Washington, D.C., Case No. 22-08518(UC) (1980).
/3/ Section 7131(d) provides:
Sec. 7131. Official time
. . . .
(d) Except as provided in the preceding subsections of this
section--
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this
chapter, any employee in an appropriate unit represented by an
exclusive representative,
shall be granted official time in any amount the agency and the
exclusive representative involved agree to be reasonable,
necessary, and in the public interest.
/4/ See Environmental Protection Agency, 16 FLRA No. 87 (1984),
appeal docketed, No. 85-1057 (D.C. Cir. Jan. 28, 1985), wherein the
Authority adopted the Judge's finding that an activity violated section
7116(a)(1) and (5) of the Statute by refusing to bargain over ground
rules, including the amount of official time that union negotiators
would be granted to prepare for negotiations, in connection with
management's decision to implement new performance standards applicable
to bargaining unit employees. See also American Federation of
Government Employees, AFL-CIO and U.S. Environmental Protection Agency,
15 FLRA No. 96 (Union Proposal 2) (1984); Federal Uniformed
Firefighters, Local F-169 and U.S. Army Armament Research & Development
Command, Dover, New Jersey, 3 FLRA 317 (1980); Social Security
Administration, 13 FLRA 112 (1983).
/5/ In so concluding, the Authority notes that there is neither a
contention nor any indication in the record that the Respondent's
refusal to negotiate over official time to prepare for negotiations was
based on its need to implement the changes in question without delay.
Moreover, there is no basis for a conclusion herein that the Union's
request to bargain for official time to prepare for negotiations was
intended to create or would have resulted in such a delay.
Environmental Protection Agency, 16 FLRA No. 87 (1984), supra n. 4.