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LOUIS A. JOHNSON VETERANS AFFAIRS MEDICAL CENTER, CLARKSBURG,
WEST VIRGINIA |
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and
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Case No. WA-CA-20686
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Gregory A. Burke
Counsel for the Respondent
William Nazdin
Representative of the Charging Party
Laurence M. Evans
Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
The unfair labor practice complaint alleges that Respondent
(VAMC Clarksburg) violated section 7116(a)(l) and (5) of the
Federal Service Labor-Management Relations Statute (the Statute), 5
U.S.C. §§ 7116(a)(l) and (5), by establishing and implementing a
new wage rate schedule for Canteen workers in the bargaining unit
without negotiating with the Charging Party (Local 2384 or Union)
over the substance or the impact and implementation of the change
in working conditions.
Respondent's answer admitted the jurisdictional allegations as
to the Respondent, the Union, and the charge, but denied any
violation of the Statute. Respondent averred that no management
official of VAMC Clarksburg has any authority to control or bargain
over the pay or benefits of any person employed by the Department
of Veterans Affairs at VAMC Clarksburg.
A hearing was held in Washington, D.C. The Respondent, Union,
and the General Counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The
Respondent and General Counsel filed helpful briefs. Based on the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of
law, and recommendations.
The American Federation of Government Employees, AFL-CIO (AFGE) is the exclusive representative of a nationwide consolidated unit of employees appropriate for collective bargaining at the Department of Veterans Affairs (VA). A collective bargaining agreement (Master Agreement) is in effect between VA and AFGE. Local 2384 is an agent of AFGE for representing unit employees at Respondent VAMC Clarksburg. The unit includes all non-supervisory professional and non-professional employees in the regular work force, including Canteen workers and guards. Local 2384 and VAMC Clarksburg also have a Labor-Management Agreement (Local Agreement).
Governing Statute, Regulation, and Agreements
38 U.S.C. § 7802(5) provides that the Secretary shall:
(5) employ such persons as are necessary for the establishment,
maintenance, and operation of the Service, and pay the salaries,
wages, and expenses of all such employees from the funds of the
Service. Personnel necessary for the transaction of the business of
the Service at canteens, warehouses, and storage depots shall be
appointed, compensated from funds of the Service, and removed by
the Secretary without regard to the provisions of title 5 governing
appointments in the competitive service and chapter 51 and
subchapter III of chapter 53 of title 5 [relating to classification
of positions and General Schedule pay rates]. Those employees are
subject to the provisions of title 5 relating to a preference
eligible described in section 2108(3) of title 5, subchapter I of
chapter 81 of title 5, and subchapter III of chapter 83 of title 5
[relating to civil service retirement.]
Under delegated authority, the Director, Veterans Canteen Service, establishes the position titles and grade ranges for canteen positions. Veterans Canteen Service l Operating Procedures, Part III, Chapter l, Position Management, of July 27, 1984 (VCS-l) accurately describes the VCS Retail-Clerical-Administrative pay system, in part, as follows:
a. The VCS retail-clerical-administrative (RCA) system includes
all classes of positions the duties of which are: to receive, stock
and sell food and retail merchandise; to take food and retail
inventories at canteens; and to complete the purely clerical or
administrative tasks of canteen accounting, procurement and
record-keeping. Because these positions do not meet the criteria
for craft, trade, or manual labor work, they are excluded from the
provisions of Public Law 92-392; FPM Supplement 532-2; MP-5, part
I, chapter 512; and VA Supplement 532-1.
b. The RCA pay system is established and administered by the VCS. Compensation for these positions is based on hourly rates for the Patron Services Schedule resulting from Department of Defense wage surveys. RCA schedules are effective on the same date NAF regular wage schedules for the same wage area become effective.
c. The following titles and grades are authorized for hourly
rate positions in the VCS RCA system. No others may be used without
approval of the Director, VCS. All positions are assigned to the VC
pay plan. . . .
The positions set out in the VCS-1 Operating Procedures include those of Administrative Assistants, Supply Clerks, and Sales Clerks.
Article 20, Wage Surveys, of the Master Agreement,
provides:
SECTION 1 - Survey teams will consist of
one member nominated by the local agency and one member nominated
by the labor member of the local wage survey committee. Each will
be selected on the basis of qualifications set forth under Federal
Wage System procedures. The number of teams needed to complete the
surveys will be determined by the local committee.
SECTION 2 - The host installation
designated by the lead agency will provide office space and
telephone capability to local committee members and survey teams
for the purpose of conducting the survey. The VA also will provide
such facilities where necessary.
SECTION 3 - The VA will make every effort
to provide official vehicles for the use of survey teams and, if
necessary, for committee members involved in the survey. In the
event such vehicles are unavailable, management will explore all
other alternatives to provide transportation for the survey team.
[Jt. Exh. No. 1].
Article XXIV, Area Wage Surveys (WG and Canteen Employees), of the parties' Local Agreement provides:
1. The Medical Center will notify the Union of a pending
wage survey promptly upon receipt of notice
that such survey is to be made.
2. If any meetings are held at this Medical Center
concerning planning of an upcoming survey, a Union
representative will be invited to attend.
3. When Union representative participate in a wage survey,
Personnel will provide them with necessary
information and assistance in carrying out their duties. [Jt. Exh. No. 2].
Article 4, Mid-Term Bargaining, Section 1, VA Transmittal of
National Level Changes, of the Master Agreement provides:
The VA will forward all proposed changes initiated above the
individual facility level for which there is a bargaining
obligation under the Statute to the designated Council
representative with copies to the 4 Council Officers and a copy to
the national office of AFGE.
Article 4, Sections 2 and 3 provide for the national level negotiations. Article 4, Section 4, Local Bargaining on National Changes, of the Master Agreement provides:
On all policies and directives or other changes for which the VA
meets its bargaining obligations at the national level, local
bargaining at individual facilities will be restricted to local
implementation unless there was agreement at the national level to
provide for local bargaining on the national subject.
Article 4, Section 5, Local Level Changes, of the Master Agreement provides:
Proposed changes affecting personnel policies, practices or conditions of employment which are initiated by local management at a single facility will be forwarded to the designated local union official. Upon request, the parties will negotiate as appropriate. . . .
Article XII, Rights of the Union, Paragraph 2 of the Local Agreement provides:
It is agreed and understood that matters appropriate for
consultation and negotiation between the Union and the Employer
must be within the administrative discretion and authority of the
Medical Center Director and permissible by applicable laws and
regulations, executive orders, Office of Personnel Management
regulations, and VA policy.
Article XXXIII, Duration, Amendment, and Termination, Paragraph 5 of the Local Agreement provides:
Any request for amendment or renegotiation from either party shall
be in writing and must include a summary of the changes proposed
and the reasons therefore. Within 30 calendar days after receipt of
such request, representatives of the parties shall meet to discuss
the changes proposed and to negotiate those proposals where change
is found warranted.
On January 12, 1992, James B. Donahoe, Director, VCS, by Duane A. Walsh, Director of Personnel and Administration, VCS, issued a new wage rate schedule for Retail, Clerical and Administrative employees pursuant to 38 U.S.C. § 7802(5) and VCS-1. The schedule noted that it was for "employees engaged in other than craft, trade or manual labor occupations." These employees include the employees at issue here, Administrative Assistants, Sales Clerks, and Supply Clerk.
The schedule was derived from a wage survey of area 066
Allegheny, Pennsylvania, one of the 147 or more wage survey areas,
performed by the Department of Defense of Administrative Services
(AS) and Patron Services (PS) employees. AS and PS employees are
not covered by P.L. 92-392, 86 Stat. 564, 574 (1972) (codified at 5
U.S.C. § 5343 note (1988), section 9(b) of the Prevailing Rate
Systems Act of 1972. Rather, the wages of AS and PS employees are
set by being "piggy-backed" on the surveys conducted for crafts and
trades employees, those covered by P.L. 92-392. The VCS then uses
the Department of Defense AS and PS schedules to set the wage rates
for Retail, Clerical and Administrative employees.
The January 12, 1992 wage rate schedule noted that it was
applicable to five VAMC installations in the Ohio, Pennsylvania,
and West Virginia area, including VAMC Clarksburg.
On February 26, 1992, Local 2384 President Helen Newlon, made, in
writing, a demand to bargain over the wages and benefits for
certain of Respondent's Canteen Service employees. The Union did
not submit any proposals, but did request certain information "[i]n
order that we might develop proposals" pursuant to section
7114(b)(4) of the Statute. On March 27, 1992, VAMC Clarksburg
provided the information, but denied the Union's request to
bargain, stating, in part, as follows:
Amongst other reasons, and based upon the U.S. Court of Appeals
Fourth Circuit case, which stated that union initiated midterm
bargaining is not required by the statute, we do not at this time
desire to undertake such bargaining; therefore, we are denying your
request to bargain.
Local 2384 sought to bargain over the wages for unit positions designated as Administrative Assistants, Supply Clerks, and Sales Clerks. Local 2384 did not seek to bargain over the wages of non-appropriated fund positions designated as cook and food service workers which are covered by P.L.
92-392.
The Union had never before bargained over the wages of any of
the VCS unit employees as these employees' wages had been set
historically by operation of area wage surveys. Local 2384
President Newlon acknowledged that the Union had never made a
request to bargain over wage increases for VCS employees because
"[u]ntil the Ft. Stewart decision, we
didn't have any idea that we could."
The General Counsel contends that since wages are a condition
of employment under Fort Stewart Schools v.
FLRA, 495 U.S. 641 (1990)(Fort
Stewart), and since there is no statute setting wages for
the employees at issue in this case, Respondent violated the
Statute by refusing to bargain over wages for these employees. The
General Counsel claims that Respondent's affirmative defenses are
without merit.
Respondent maintains that it had no obligation to bargain
because (l) the procedures concerning wage surveys and related wage
determinations are covered by the parties' collective bargaining
agreements, (2) the Union did not submit proposals as required by
Article XXXIII of the Local Agreement, (3) Respondent had no
obligation to bargain over Union-initiated midterm bargaining
proposals absent Agency-initiated changes in the terms or
conditions of employment, (4) the January 12, 1992 change in wage
rates did not constitute a change in conditions of employment as
the policies and procedures used to establish those wages have
remained unchanged since at least 1984, and (5) VAMC Clarksburg
cannot be found to have committed an unfair labor practice for a
failure to negotiate because only the Director, VCS has authority
to establish wages for VCS employees at VAMC Clarksburg or any
other VA facility.
Matters pertaining to the wages, or compensation, of Federal
employees covered by the Statute are conditions of employment
subject to the duty to bargain under the Statute unless they are
excluded from the definition of conditions of employment because
they are specifically provided for by Federal statute, within the
meaning of section 7103(a)(14)(C) of the Statute. See Fort Stewart, 495 U.S. at
644-50. Where a Federal statute provides discretion to an agency
with respect to the determination of matters pertaining to Federal
employee wages, the wages of those employees are not a matter
specifically provided for by Federal statute within the meaning of
section 7103(a)(14)(C) of the Statute. Department
of Defense, Fort Bragg Dependents Schools, Fort Bragg, North
Carolina and Fort Bragg Association of Educators,
OEA/NEA,
49 FLRA 333, 339-40 (1994).
The Wages of the Employees Involved Here Are Not
Specifically Provided by Federal Statute
38 U.S.C. § 7802(5), set out above, provides that the Secretary
shall pay the wages and compensate such employees from the funds of
the Service without regard to the provisions of title 5 governing
appointments, classification, and General Schedule pay rates, but
subject to its provisions relating to preference eligibles and
civil service retirement. Thus, the statute provides discretion to
the Agency with respect to the determination of wages of
administrative assistants, supply clerks, and sales clerks and such
matters are not specifically provided for by Federal statute and
are not excluded from the definition of conditions of employment.
Unless the request to negotiate over compensation for these
employees was otherwise inconsistent with applicable law, rule, or
regulation, Respondent was required to bargain with respect to the
wages of the employees involved here. Cf.
Fort Bragg, 49 FLRA at 340.
Union's Right to Initiate Mid-term
Bargaining
The Authority has previously rejected the contention advanced
by Respondent here that the Authority should adopt the 4th
Circuit's decision in Social Security
Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992), which
held "that union-initiated midterm bargaining is not required by
the [S]tatute and would undermine the [C]ongressional policies
underlying the [S]tatute." 956 F.2d at 1281. The Authority has held
that it respectfully disagrees with the 4th Circuit's decision, and
will continue to adhere to its holding in Internal
Revenue Service, 29 FLRA 162 (1987), that the duty to
bargain in good faith that is imposed by the Statute requires an
agency to bargain during the term of a collective bargaining
agreement on negotiable union-initiated proposals concerning
matters that are not contained in the collective bargaining
agreement, unless the union has waived its right to bargain about
the subject matter involved. See
Headquarters, 127th Tactical Fighter Wing,
Michigan Air National Guard, Selfridge Air National Guard Base,
Michigan, 46 FLRA 582 (1992).
Bargaining Not Appropriate By VAMC Clarksburg and Local 2384 Under Parties' Agreements
VAMC Clarksburg claims that it cannot be found to have committed an unfair labor practice for a failure to negotiate because only the Director, VCS has authority to establish wages for VCS employees at VAMC Clarksburg or any other VA facility. VAMC Clarksburg points out that no evidence was presented that the Director, VCS was even made aware of any request to bargain, and whether or not the VCS Central Office would have bargained is not raised by the complaint in this case.
Under section 7114(b)(2) of the Statute, the duty of an agency
and an exclusive representative to negotiate in good faith includes
the obligation "to be represented at the negotiations by duly
authorized representatives prepared to discuss and negotiate on any
condition of employment." Thus, the Statute clearly requires the
parties to provide representatives who are empowered to negotiate
and enter into agreements on all matters within the scope of
negotiations in the bargaining unit. National
Treasury Employees Union and Department of the Treasury, Internal
Revenue Service, 13 FLRA 554, 556 (1983). However, the issue
of where, that is, at what level such bargaining will take place
requires an examination of the Statute and the parties' agreements
and delegations of bargaining authority. Department of the Air Force, Ogden Air Logistics Center, Hill
Air Force Base, Utah and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 39 FLRA 1409, 1417-18
(1991)(Ogden).
The AFGE is the certified exclusive representative of a
nationwide consolidated unit. Since the exclusive recognition is at
the national level, the Statute, in the absence of an agreement
between the parties, or other appropriate delegation of authority,
does not require negotiations at any other level. See, e.g., Department of Health and Human Services, Social Security
Administration, 6 FLRA 202 (1981); Department of Defense Dependents Schools and Overseas
Education Association, 12 FLRA 52, 53 (1983); Ogden, 39 FLRA at 1417.
Article 4, Section 1 of the National Agreement, set out above,
provides that "[t]he VA will forward all proposed changes initiated
above the individual facility level for which there is a bargaining
obligation under the Statute to the designated Council
representative with copies to the 4 Council Officers and a copy to
the national office of AFGE." Sections 2 and 3 of that Article
provide for such national level negotiations. Section 4 of the
National Agreement provides for bargaining at the local level on
changes "which are initiated by local management at a single
facility[.]" Article XII, Section 2 of the Local Agreement, set out
above, states that "matters appropriate for consultation and
negotiation between the [Local] Union and the Employer must be
within the administrative discretion and authority of the Medical
Center Director. . . ."
The record reflects that the wage rate change in issue was
established by the Director, VCS at the national level and was made
applicable to five VAMC installations in Ohio, Pennsylvania, and
West Virginia, including VAMC Clarksburg. Thus, it was not a change
initiated by local management at VAMC Clarksburg. There has been no
showing that the Local 2384 President was delegated authority to
request national level bargaining or that the Medical Center
Director, VAMC Clarksburg had any administrative discretion and
authority with respect to the matter. Therefore, pursuant to the
Statute, the parties' agreements, and the delegations of bargaining
authority, VAMC Clarksburg cannot be found to have committed an
unfair labor practice for its failure to negotiate with Local 2384
on this matter in this instance, as alleged, even assuming, without
deciding, that the matter is not covered by or contained in the
parties' agreements and the Union has not waived its right to
bargain.
In view of this disposition it is not necessary to consider the
additional defenses raised by Respondent.
Based on the above findings and conclusions, it is recommended
that the Authority issue the following Order:
The complaint is dismissed.
Issued, Washington, DC, August 5, 1994
GARVIN LEE OLIVER
Administrative Law Judge
Dated: August 5, 1994
Washington, DC