[ v57 p515 ]
57 FLRA No. 92
U.S. DEPARTMENT OF VETERANS AFFAIRS
(Respondent)
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-136, SEIU, AFL-CIO
(Charging Party/Union)
AT-CA-90578
_____
DECISION AND ORDER
September 26, 2001
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members. [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel and the Union. The Respondent did not file an opposition to the parties' exceptions.
The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to permit an attorney to represent the grievant at a step two grievance meeting. The Judge found that the Respondent did not violate the Statute, as alleged, and accordingly recommended dismissing the complaint. [n2]
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended order only to the extent consistent with this decision, and find that Respondent did commit an unfair labor practice.
II. Background and Judge's Decision
A. Background
The National Association of Government Employees (NAGE National) is the certified collective bargaining representative of a nationwide unit of the Respondent's non-professional employees. NAGE Local R5-136 (the Union) is the agent of NAGE National for purposes of representing employees at the Respondent's Charleston, South Carolina facility (VA Charleston).
The Respondent and NAGE National are parties to a master bargaining agreement that was executed in 1992. G.C. Exhibit 2. Article 47 of the agreement, which establishes the grievance procedure, sets forth the steps to be followed when a grievance is initiated. As relevant here, Article 47, Section 6 provides that at step two of the grievance procedure [t]he employee may be accompanied by the Chief Steward, or his/her designee. Id. at 36. [n3] It further provides that management may be represented by the Service Chief (or designee). Id. In addition, Article 7 of the agreement, which addresses Union rights and obligations, provides in Section 3 that the Union will be entitled to the "same number of representatives as management" at all formal discussions. Id. at 5. Finally, Article 9 of the agreement, regarding Union representation, requires that VA Charleston recognize the officers and stewards of the Union. It also requires the Union to keep VA Charleston advised, in writing, of the names of its officers and stewards.
Prior to 1996, it was the practice of VA Charleston to send only one management representative to step two grievance meetings. However, during that year, VA Charleston began sending two representatives. As a result, the Union also began sending a second representative to step two grievance meetings pursuant to Article 7, Section 3.
The events giving rise to this case occurred in connection with a step two grievance meeting held in May 1999. As its representatives, the Union had intended to send one of its stewards and a private attorney. However, prior to the start of the step two meeting, the Union was informed that the attorney would not be permitted to attend. Consequently, the Union's President accompanied the steward to the meeting instead. [ v57 p516 ]
B. Judge's Decision
The Judge found that Article 47 of the parties' bargaining agreement precluded "`outside' representation through [s]tep two and, therefore, when the Union attorney was refused permission to represent [a unit employee] at the step two grievance meeting, [VA Charleston] acted in accordance [with its terms]." Judge's Decision at 15. The Judge, accordingly, found that VA Charleston did not violate § 7116(a)(1) and (5) of the Statute, as alleged.
In the alternative, the Judge found that NAGE National had waived its right to file an unfair labor practice charge under the Statute pursuant to a provision in the parties' master bargaining agreement. According to the Judge, Article 47, Section 2, of the agreement specifically states:
[t]his negotiated grievance procedure shall be the sole procedure available to the Union, the Employer and the unit employees for resolving grievances [i.e. complaints] over the interpretation or application of this Master Agreement . . . .
Id. at 16 (emphasis omitted). In the Judge's view, by agreeing to this provision, NAGE National had waived its discretion to resolve the interpretation or application of Article 47 through the unfair labor practice procedures and, "for this reason alone," the complaint should be dismissed. Id.
In arriving at these findings, the Judge first noted that the instant proceeding involves an alleged violation of a union's statutory right to designate its representatives. The Judge further noted that in IRS, Washington, D.C., 47 FLRA 1091 (1993) (IRS), the Authority set forth the standard it will follow where the underlying dispute is governed by the interpretation and application of specific provisions of the parties' collective bargaining agreement. According to the Judge, in IRS the Authority specifically held that:
when a respondent claims as a defense to an alleged unfair labor practice that a specific provision of the parties' collective bargaining agreement permitted its actions alleged to constitute an unfair labor practice, the Authority, including its administrative law judges, will determine the meaning of the parties' collective bargaining agreement and will resolve the unfair labor practice complaint accordingly.
. . . .
The focus will be on the interpretation of the express terms of the collective bargaining agreement. Nevertheless, the meaning of the agreement must "[u]ltimately . . . depend[] on the intent of the contracting parties."
. . . .
Furthermore, in determining the meaning of the collective bargaining agreement, the administrative law judge should consider, as necessary, any alleged past practices relevant to the interpretation of the agreement.
Judge's Decision at 9-10 (quoting IRS, 47 FLRA at 1103-11).
Applying the above-stated principles to the facts of this case, the Judge concluded that it was the parties' intent that through step two of the grievance procedure, grievances were to be handled "in house" and that union and management representatives were to be "local." Id. at 10. The Judge reasoned that this conclusion is supported by the language of Sections 4, 5, and 6 of Article 47 which reflect the parties' intent that management and the union make every effort to settle grievances at the lowest level, as well as their intent that no outside representation be provided until step three. Id. at 12-13.
The Judge next concluded that the term union representation as it is used in the master agreement is governed by the language of Article 9, Section 1. The Judge stated that pursuant to this section, management is required to "officially recognize only those Union representatives who have been appointed and reported in keeping with this Article." Id. at 7. In so concluding, the Judge specifically rejected the testimony of the local Union president, who stated that Article 9, Section 1 was intended to apply to the subject of official time. The Judge found that the president's testimony is contrary to the "plain language" of the section which "does not deal in any manner with official time." Id. (emphasis omitted). [n4] The Judge also found that official time is specifically addressed in Article 9, Section 2.
In the remainder of his decision, the Judge further bolstered his conclusion that union representation is limited to local stewards and officials through step two [ v57 p517 ] of the grievance procedure. In this connection, the Judge explained:
the parties made it plain that when "outside" representation was permitted in the grievance procedure they made provisions for it. The corollary is that when they did not make provision for "outside" representation through the [s]econd [s]tep of the grievance procedure, they intended the preclusion of "outside" representation. Moreover, through the [t]hird [s]tep, "outside" representation of management is not authorized.
Judge's Decision at 13. In addition, the Judge found that sections 10, 11 and 12 of Article 47 place "no limitation whatever on representation at [a grievance] . . . brought by the NAGE National Office or by [the Respondent]." Id. at 14. The Judge similarly found that Article 48, which governs arbitration procedures, "imposes no limitation on representation of the parties." Id.
Finally, the Judge observed that since 1984, no employee has been represented through step two of the grievance procedure by any union representative other than an officer or steward. Therefore, based on the foregoing, the Judge concluded that VA Charleston acted in accordance with Article 47 of the parties' master agreement when it refused to permit the Union's attorney to represent the grievant at a step two grievance meeting. The Judge further found that such action followed the consistent and unvaried practice of the parties since 1984. As such, the Judge found that VA Charleston did not violate § 7116(a)(1) of the Statute, as alleged.
In the alternative, the Judge found that NAGE National and the Union had waived their discretion to raise the interpretation of Article 47 through the filing of an unfair labor practice charge. The Judge noted that under Article 47, Section 1, a grievance is defined as any complaint by any unit employee, the Union, or the Agency, concerning the effect or interpretation of the agreement. In addition, the Judge noted that Article 47, Section 2, specifically states that "[t]his negotiated grievance procedure shall be the sole procedure available to the Union, the Employer, and the unit employees for resolving grievances over the interpretation or application of this Master Agreement." Judge's Decision at 16. Based on these provisions, the Judge concluded that NAGE National had waived its right to resolve the meaning of the parties' master bargaining agreement through the unfair labor practice procedures. Accordingly, the Judge stated that the complaint must be dismissed on this basis alone.
III. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel excepts to the Judge's decision on several grounds. First, the General Counsel contends that the Judge erroneously denied its motion to compel VA Charleston to comply with the Authority's prehearing disclosure requirements set forth in § 2423.23(a) of the Authority's Regulations. Contrary to these requirements, the General Counsel asserts that VA Charleston simply provided vague and ambiguous descriptions of its witnesses' expected testimony. In the General Counsel's view, when the Judge denied its motion to compel, he essentially permitted VA Charleston to "spurn the letter and spirit of the Authority's prehearing disclosure requirements." G.C.'s Exceptions at 7. As such, the General Counsel maintains that the Judge's denial of its motion to compel should not be permitted to stand.
As a second ground, the General Counsel excepts to the Judge's conclusion that Article 47 of the parties' master bargaining agreement limits the Union's statutory right to designate its representatives. According to the General Counsel, the Judge erroneously read the language of Article 47, Section 6, in conjunction with the language of Article 9, Section 1, to conclude that Union representation at second step grievance meetings is limited to "local" representatives. The General Counsel maintains that in so concluding, the Judge failed to apply the applicable standard for interpreting the language of the parties' bargaining agreement as set forth in IRS, 47 FLRA 1091.
Applying IRS to the facts of this case, the General Counsel excepts to the Judge's conclusion that the last sentence of Article 9, Section 1 clearly delineates those persons who may . . . act for the Union. G.C.'s Exceptions at 11. According to the General Counsel, the Judge's conclusion is inconsistent with the remaining language of the Section as well as other articles of the parties' master agreement. The General Counsel notes that although Article 9, Section 1 does not address official time, it does state that "`[t]he Employer shall recognize the officers and stewards of the Union' and that `[t]he Union will keep the local facility advised in writing of the names of its officers and stewards.'" Id. at 11-12. The General Counsel explains that one reason the Agency is required to recognize local Union officials is to ensure that they receive official time for the performance of their representational duties. The General Counsel further explains that this requirement also ensures that the Agency deals only with Union designees. In the General Counsel's view, "[a] clear reading [ v57 p518 ] of Article 9, Section 1, obligates the facility to recognize the local stewards and officers as designated in Section 1, as well as the [U]nion representatives at the national level [set forth] in section 4." Id. at 12.
In addition, the General Counsel maintains that the Judge's interpretation of Article 9, Section 1 produces inconsistencies when applied to other sections of the parties' master agreement. For example, the General Counsel notes that the Judge finds that only local stewards and officers are entitled to information under Article 9, Section 14 but also finds that there is no limitation on representation at a grievance affecting more than one facility under Article 9, Section 12. The General Counsel asserts that pursuant to this interpretation, a national representative who files a grievance affecting more than one facility would not be entitled to represent the employees at the involved facilities or to obtain information regarding the grievance.
The General Counsel asserts that the plain language of Article 47, Section 6, demonstrates that the parties' did not envision more than one representative per party at the lower steps of the grievance procedure. However, the General Counsel contends that there is absolutely nothing in Article 47 that precludes additional representatives.
Next, the General Counsel challenges the Judge's reliance on past practice to support his determination that the Union waived its right to designate an attorney at step two of the grievance procedure. In this connection, the General Counsel asserts that the waiver of a statutory right must be clear and unmistakable. The General Counsel further asserts that the existence or nonexistence of a past practice is irrelevant to the exercise of a statutory right. As such, the General Counsel contends that the Judge's interpretation of the parties' master agreement must be reversed.
As a final ground, the General Counsel excepts to the Judge's alternative conclusion that NAGE National waived its right to raise the interpretation of a contract provision through unfair labor practice proceedings. The General Counsel asserts in so concluding, the Judge relied on Article 47, Section 2 of the parties' master agreement which concerns the grievance procedure. However, the General Counsel points out that as the instant proceeding involves an unfair labor practice charge instead of a grievance, the Judge's interpretation of this provision is deeply flawed. Id. at 19. [n5]
B. Union's Exceptions
The Union maintains that there is nothing in the parties' master bargaining agreement that precludes it from designating its attorney to serve as its representative. According to the Union, the Judge "created an entire procedure and set of restriction[s] as to who may serve as a representative during the grievance procedure that has no basis in the [parties' agreement]." Union's Exceptions at 2. The Union argues that despite the Judge's acknowledgment that the agreement is silent on this point, he nevertheless created restrictions that are not included in the agreement and that the parties' did not contemplate. With regard to the Judge's determination that the parties' agreement constitutes a waiver of the Union's statutory right to file an unfair labor practice charge, the Union asserts that it is inconsistent with IRS, 47 FLRA 1091.
IV. Analysis and Conclusions [n6]
A. Article 47 of the Parties' Master Bargaining Agreement Does Not Limit Union Representation at Step Two Grievance Meetings
1. Analytical Framework
A union's right to designate its own representatives is a statutory right under § 7114 of the Statute. See 5 U.S.C. § 7114; AFGE, Local 1738, 29 FLRA 178, 188 (1987) (agencies and unions have the right to designate their respective representatives when fulfilling their responsibilities under the Statute). Consequently, an [ v57 p519 ] agency's failure to recognize the duly authorized representative of a union violates § 7116(a)(1) and (5) of the Statute. Federal Emergency Management Agency, Headquarters, Washington, D.C., 49 FLRA 1189, 1201 (1994).
Moreover, when a defense to an unfair labor practice complaint is governed by the interpretation and application of specific terms of a collective bargaining agreement, the Authority must ascertain the meaning of the provision. When a judge's interpretation of a collective bargaining agreement is challenged on exceptions, the Authority must decide whether the judge's determination is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts. See, e.g., United States Dep't of Justice, INS, Wash., D.C., 52 FLRA 256, 261 (1996); IRS, 47 FLRA at 1111. Therefore, the issue to be resolved in this case is whether the Judge's interpretation of the parties' master agreement is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts.
2. The Respondent Has Not Established That Article 47, Section 6 Provides A Defense to Its Action
Article 47, Section 6 of the parties' master bargaining agreement addresses step [two] grievance meetings. As relevant here, that section provides:
[t]he management official receiving the grievance at [s]tep two will meet with the aggrieved employee. The employee may be accompanied by the Chief Steward, or his/her designee.
G.C.'s Exh. 2 at 36.
The plain wording of Article 47, Section 6 addresses participation in step two grievance meetings. With regard to management representation, the provision states that the management official receiving the step two grievance will meet with the employee. With regard to Union representation, the provision states only that an employee may be accompanied by the Chief Steward or the steward's designee. The provision is silent on whether representatives other than those referenced are permitted to attend such meetings. In addition, apart from who may attend step two grievance meetings as representatives of the parties, the provision is silent with respect to the total number of representatives who may attend. Moreover, the record fails to disclose any bargaining history concerning this provision that would establish the intent of the parties in this regard.
Notwithstanding the fact that Article 47, Section 6 is silent on the issue of designation and/or number of representatives, and the absence of relevant bargaining history, the Judge found that Union representation is limited to stewards and local officials at step two of the grievance procedure. In so doing, the Judge relied on the language of Article 9, Section 1. However, Article 9 is also silent on this issue. We, therefore, conclude that the Judge's interpretation of Article 47, Section 6 of the parties' master bargaining agreement is not supported and that the agreement does not preclude the attendance at step 2 grievance meetings of a representative of the union's choice.
In this case, it is undisputed that the Respondent refused to permit the Charging Party to designate the attorney as a representative. It is also undisputed that absent a defense, this refusal violated the Statute. The Respondent's sole defense is that its refusal was justified based on Article 47, Section 6 of the collective bargaining agreement. Based on the foregoing analysis, the Respondent has not established that the contract provides a defense. Accordingly, we find that the Respondent, through VA Charleston, violated § 7116(a)(1) and (5) of the Statute by refusing to permit an attorney to represent the grievant at a step two grievance meeting.
B. The Parties Did Not Waive their Statutory Rights to File Unfair Labor Practice Charges
We next consider the Judge's alternative conclusion that the parties to this proceeding waived their rights to file unfair labor practice charges under the Statute pursuant to the provisions of their master bargaining agreement. As more fully discussed above, the Authority's standard for assessing a challenge to a judge's interpretation of the meaning of a collective bargaining agreement when evaluating a defense to an unfair labor practice complaint is whether the interpretation is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts. IRS, 47 FLRA at 1111.
In this case, the Judge concluded that NAGE National and the Union had waived their rights to raise the interpretation of Article 47 of the parties' master bargaining agreement through the filing of an unfair labor practice charge. In so concluding, the Judge first observed that Article 47, Section 1(C)(1), specifically defines a grievance as any complaint by any unit employee, the Union or the Employer, concerning . . . the effect or interpretation, or a claim of breach of this agreement. Judge's Decision at 16. The Judge next observed that Article 47, Section 2, specifically provides: [ v57 p520 ]
[t]his negotiated grievance procedure shall be the sole procedure available to the Union, the Employer and the unit employees for resolving grievances over the interpretation or application of this Master Agreement.
Id. Based on these provisions, the Judge stated, clearly, NAGE waived its discretion to resolve the interpretation or application of Article 47 through the unfair labor practice procedures and that the complaint must be dismissed on this basis alone. Id. We disagree, because the mere fact that an arbitration clause provides the sole mechanism for resolving contract disputes does not obviate a party's right to make claims of statutory violations through the unfair labor practice procedures, notwithstanding the implication of contract language in the case.
The complaint in this case alleges that the Respondent engaged in an unfair labor practice as set forth in § 7116(a)(1) and (5) of the Statute and does not involve the resolution of a grievance. In addition, a review of Article 47, entitled "Grievance Procedure," shows that it essentially mirrors the statutory language of § 7121 of the Statute. The fact that the Respondent has raised an affirmative defense that calls for interpretation of the Master Agreement does not convert the Union's statutory claim into a grievance that is covered solely by the grievance procedure. No other arguments with regard to waiver of the right under the Statute to file an unfair labor practice were advanced during the course of these proceedings. Accordingly, we conclude that Article 47 of the parties' agreement does not contain a waiver by the parties of their statutory rights to file an unfair labor practice charge. We, therefore, find that this aspect of the Judge's decision must be reversed.
V. Order
Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Veterans Affairs, through its agent the Ralph H. Johnson Medical Center, Charleston, South Carolina, shall:
1. Cease and desist from:
(a) Failing and refusing to permit the National Association of Government Employees, Local R5-136, SEIU, AFL-CIO, to designate its legal counsel, or any other representative of its choosing, to act as its representative at step two grievance meetings.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Recognize the Union's designated representatives, including legal counsel, as the representative of bargaining unit employees.
(b) Post at its facilities where bargaining unit employees represented by the Union 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 Director, Veterans Affairs Medical Center, Ralph H. Johnson Medical Center, 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) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Atlanta 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. [ v57 p521 ]
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the U.S. Department of Veterans Affairs, through its agent the Ralph H. Johnson Medical Center, Charleston, South Carolina, has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify employees that:
WE WILL NOT fail or refuse to recognize the designated representative of the National Association of Government Employees, Local R5-136, SEIU, AFL-CIO, including legal counsel, as the representative of bargaining unit employees at the Ralph H. Johnson Medical Center, Charleston, South Carolina.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL recognize the designated representative of the National Association of Government Employees, Local R5- 136, SEIU, AFL-CIO, including legal counsel, as the representative of bargaining unit employees at the Ralph H. Johnson Medical Center, Charleston, South Carolina.
________________________
Dated:________ By:___________________________
(Signature) (Title)
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 of the Atlanta Regional Office, Federal Labor Relations Authority, whose address is: 285 Peachtree Center Avenue, Suite 701, Atlanta, Georgia 30303, and whose telephone number is: (404) 331- 5212.
APPENDIX
Relevant portions of the parties' 1992 master collective bargaining agreement are as follows:
ARTICLE 7
UNION RIGHTS AND OBLIGATIONS
Section 3 - The Union shall be given the opportunity to be present at any formal discussion between one or more representatives of the employer and one or more employees in the unit concerning any grievance or any personnel policy or practice or other general condition of employment.
In such cases, the Union will be entitled to the same number of representatives as management, regardless of official time status.
ARTICLE 9
UNION REPRESENTATION
Section 1 - The Employer shall recognize the officers and stewards of the Union. The Union will keep the local facility advised in writing of the names of its officers and stewards. Any changes will be reported to management in writing. A complete revised listing will be provided by the Union at least annually. Management officials of the Employer will officially recognize only those Union representatives who have been appointed and reported in keeping with this article.
. . . .
Section 4 - Representatives of the national office of NAGE will be allowed to visit the facilities on appropriate union business.
ARTICLE 47
GRIEVANCE PROCEDURE
Section 6 - An employee and/or his/her representative are encouraged to discuss issues of concern to them, informally, with his/her supervisor at any time. Likewise, an employee and/or his/her representative may request to talk with other appropriate officials about items of concern without filing a grievance if they choose. The following steps will be followed when an employee grievance is initiated. Grievances should be initiated at the lowest step of this procedure where the management official has the authority to take corrective action to resolve the grievance. However, the time limits to initiate a grievance will be as set forth in Step 1, regardless of the step at which the grievance is initiated.
Step 1 - The grievance must be submitted by the aggrieved employee, or his/her designee, orally or in [ v57 p522 ] writing, within 14 calendar days from the date of the act or occurrence, or the employee's awareness thereof, to the employee's immediate supervisor (or designee). The employee's immediate supervisor (or designee) will meet with the aggrieved employee to discuss the grievance. The employee may be accompanied by the Local steward who will ordinarily be the one designated to represent the employee's Service . . . .
Step 2 - If no mutually satisfactory settlement is reached as a result of the first step consideration, the aggrieved may submit the grievance under the second step . . . . The grievance at Step 2 will be submitted to the Service Chief (or designee). If the Service Chief is the immediate supervisor, the grievance will be submitted to the next higher Management Official below the Director. The Management official receiving the grievance at Step 2 will meet with the aggrieved employee. The employee may be accompanied by the Chief Steward, or his/her designee. The Management Official will provide the employee with a written decision on the issue within 10 calendar days after receipt of the grievance.
Step 3 - If no mutually satisfactory settlement is reached as a result of the second step, the aggrieved may submit the grievance to the Director (or the Director's designee) within 10 calendar days of receipt of the decision at Step 2. The Director, (or designee) will meet with the aggrieved employee to discuss the grievance. The employee may request the assistance of a Local Union representative and/or a National Office representative at this step. The Director (or designee) will render a decision, in writing, within 14 calendar days after receipt of the grievance.
. . . .
Section 10 - Union grievances shall be filed with the Director within 14 days of the matter grieved or 14 days of the Union becoming aware of the matter grieved. The written grievance will identify the matter grieved and the relief sought. The parties will meet within 10 days to discuss the grievance. The Director will provide a written decision within 14 days of the meeting.
Section 11 - Employer grievances shall be filed with the Union President by the Director or designee within 14 days of the matter grieved or 14 days of the Employer becoming aware of the matter grieved. The written grievance will identify the matter grieved and the relief sought. The parties will meet within 10 days to discuss the grievance. The Union President will provide a written decision within 14 days of the meeting.
Section 12 - A grievance affecting more than one facility may be brought by the NAGE National office or VA Headquarters within 30 calendar days of an incident (or awareness of an incident) which gave rise to the grievance. The grievance shall specify the basis for the grievance and the corrective action sought. Written decisions will be issued within thirty (30) calendar days of receipt of the grievance.
. . . .
Section 14 - Upon the filing of a grievance, an employee, and/or his/her representative, shall be allowed to review any documentation considered to support taking the action that is being grieved that is releaseable under current law and regulation. This should be provided at the earliest possible time after requested. At their request, employees or their representatives will be provided with a copy of any of the material reviewed that is necessary to process the grievance.
File 1: Authority's Decision in 57 FLRA No.
92 and Appendix
File 2: ALJ's Decision
Footnote # 1 for 57 FLRA No. 92 - Authority's Decision
Member Armendariz did not participate in this decision.
Footnote # 2 for 57 FLRA No. 92 - Authority's Decision
The Judge stated that the Respondent in this proceeding is the Veterans Affairs facility located in Charleston, South Carolina. We note, however, that the Respondent is the United States Department of Veterans Affairs and that the Charleston, South Carolina facility is its agent. We hereby correct this inadvertent error and note that "VA Charleston" is used interchangeably with the Respondent in this decision.
Footnote # 3 for 57 FLRA No. 92 - Authority's Decision
The pertinent provisions of the parties' master bargaining agreement are fully set forth in the Appendix to this decision.
Footnote # 4 for 57 FLRA No. 92 - Authority's Decision
The Judge also found that the president's testimony was inconsistent with that of a representative of NAGE National, who served as its Chief Negotiator for the parties' master agreement. According to the Judge, the National Representative conceded on cross-examination that Article 9, Section 1 provides a procedure for designating local representatives and [does not] speak to official time. Judge's Decision at 7-8.
Footnote # 5 for 57 FLRA No. 92 - Authority's Decision
Subsequent to filing exceptions in this case, the General Counsel also filed a motion requesting the Authority to take official notice of the judge's decision in Dep't of Veterans Affairs, Case No. AT-CA-90904. The General Counsel notes that Dep't of Veterans Affairs involves the same parties and similar issues as those in the instant proceeding. Section 2429.5 of the Authority's Regulations permits the Authority to take official notice of such matters as would be proper. Consistent with Authority precedent, the Authority takes official notice of Dep't of Veterans Affairs in resolving this proceeding. See, e.g., Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial Hospital, Sacaton, Arizona, 53 FLRA 1200, 1202 n.7. (1998). We also note that exceptions were filed to the judge's decision in Dep't of Veterans Affairs, and the Authority's decision resolving those exceptions is being issued this date.
Footnote # 6 for 57 FLRA No. 92 - Authority's Decision
We reject the General Counsel's argument that the Judge abused his discretion in denying its motion to compel more complete prehearing disclosure. Although the statements set forth in the Respondent's witness list are not lengthy or particularly descriptive, their description of the facts about which the witnesses would testify is sufficient. We emphasize, however, that a party's cooperation during the investigative stage of an unfair labor practice proceeding does not lessen its obligation to comply with the Authority's prehearing disclosure requirements.