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01:0888(101)CA
The decision of the Authority follows:
1 FLRA No. 101
VETERANS ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Complainant
Assistant Secretary
Case No. 22-09495(CA)
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE THEN AUTHORITY
AGENT-IN-CHARGE MADELINE E. JACKSON'S ORDER TRANSFERRING CASE TO THE
FEDERAL LABOR RELATIONS AUTHORITY IN ACCORDANCE WITH SECTIONS 203.5(B),
203.7(A)(4) AND 206.5(A) OF THE REGULATIONS OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED ED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND
A BRIEF SUBMITTED BY THE RESPONDENT, /1/ THE AUTHORITY FINDS:
THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT, BOTH AT THE AGENCY
LEVEL AND THROUGH LOCAL REPRESENTATIVES AT THE VETERANS ADMINISTRATION
(VA) HOSPITAL IN SALEM, VIRGINIA, VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER BY REFUSING TO NEGOTIATE WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES (AFGE), LOCAL 1739, AFL-CIO, ON A MATTER FOUND
NEGOTIABLE BY THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL). THE
RESPONDENT TAKES THE POSITION THAT WHILE A VIOLATION OF THE ORDER IN
THESE CIRCUMSTANCES CAN ONLY BE PREDICATED UPON A REFUSAL TO NEGOTIATE
IN GOOD FAITH, THE RESPONDENT ACTED ON THE BASIS OF A GENUINE CONCERN AS
TO WHETHER OR NOT THE ADMINISTRATOR OF THE VA COULD AUTHORIZE BARGAINING
ON THE PROPOSAL IN QUESTION.
THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
IN MARCH 1976, THE COMPLAINANT REQUESTED AN AGENCY HEAD DETERMINATION
REGARDING THE NEGOTIABILITY OF A PROPOSAL PERTAINING TO REPRESENTATION
FOR PROBATIONARY EMPLOYEES BEFORE A PROFESSIONAL STANDARDS BOARD. /2/
IT ALSO REQUESTED AN EXCEPTION TO ANY AGENCY REGULATIONS WHICH MIGHT BAR
NEGOTIATIONS ON THE PROPOSAL. THE RESPONDENT DECLARED THE PROPOSAL
NONNEGOTIABLE AND DENIED THE COMPLAINANT'S REQUEST FOR AN EXCEPTION.
THEREAFTER, THE COMPLAINANT FILED A PETITION FOR REVIEW OF THE AGENCY
HEAD'S NONNEGOTIABILITY DETERMINATION WITH THE COUNCIL. BASED IN PART
ON ARGUMENTS ADVANCED BY THE RESPONDENT, THE COUNCIL REQUESTED AN
OPINION FROM THE DEPARTMENT OF JUSTICE AS TO THE ALLEGED CONFLICT
BETWEEN THE STATUTORY RESPONSIBILITY OF THE VA ADMINISTRATOR TO
ESTABLISH PERSONNEL POLICIES FOR THOSE EMPLOYEES ENCOMPASSED BY THE
INSTANT PROPOSAL UNDER 38 U.S.C. 4108(), /3/ AND THE AUTHORITY OF THE
COUNCIL UNDER THE ORDER TO RULE ON THE "COMPELLING NEED" FOR THOSE
AGENCY REGULATIONS ASSERTED AS A BAR TO NEGOTIATIONS ON THE
COMPLAINANT'S PROPOSAL. /4/ PRIOR TO ITS SUBMISSION TO THE JUSTICE
DEPARTMENT, THE COUNCIL INVITED AND RECEIVED POSITION STATEMENTS FROM
THE PARTIES WHICH WERE FORWARDED TO THE JUSTICE DEPARTMENT FOR
CONSIDERATION.
THE JUSTICE DEPARTMENT DECLINED TO ISSUE AN OPINION. THEREAFTER, THE
COUNCIL ISSUED ITS DECISION ON THE COMPLAINANT'S PETITION FOR REVIEW,
/5/ FINDING INITIALLY THAT THERE WAS NO CONFLICT BETWEEN THE AUTHORITY
OF THE COUNCIL AND THE VA ADMINISTRATOR WHICH WOULD SERVE TO PREEMPT THE
FORMER'S JURISDICTION IN THIS MATTER. SECONDLY, THE COUNCIL FOUND THAT
THE RESPONDENT HAD FAILED TO ESTABLISH A COMPELLING NEED FOR THOSE
AGENCY REGULATIONS WHICH IT ASSERTED CONSTITUTED A BAR TO NEGOTIATIONS
ON THE COMPLAINANT'S PROPOSAL. ACCORDINGLY, THE COUNCIL SET ASIDE THE
AGENCY HEAD'S NONNEGOTIABILITY DETERMINATION.
IN JUNE 1978, REPRESENTATIVES OF AFGE, LOCAL 1739, RESUBMITTED THE
PROPOSAL IN QUESTION FOR NEGOTIATIONS. ON JULY 5, 1978, THE
RESPONDENT'S REPRESENTATIVE AT THE VA HOSPITAL IN SALEM REPLIED THAT HE
HAD BEEN INSTRUCTED BY HIGHER AGENCY MANAGEMENT NOT TO NEGOTIATE ON THE
PROPOSAL PENDING THE OUTCOME OF THE RESPONDENT'S RESUBMISSION OF THE
MATTER TO THE JUSTICE DEPARTMENT. THE COMPLAINANT THEREUPON FILED AN
UNFAIR LABOR PRACTICE CHARGE BASED ON THE REFUSAL TO NEGOTIATE. ON
OCTOBER 13, 1978, THE RESPONDENT REQUESTED AN OPINION FROM THE ATTORNEY
GENERAL AS TO THE RESPONSIBILITY OF THE VA ADMINISTRATOR TO ABIDE BY A
RULING OF THE COUNCIL, AND, ON OCTOBER 17, 1978, THE COMPLAINANT FILED
THE FORMAL UNFAIR LABOR PRACTICE COMPLAINT.
AS OF THE DATE OF THE PARTIES' STIPULATION, THE JUSTICE DEPARTMENT
HAD NOT YET REPLIED TO THE RESPONDENT'S INQUIRY. /6/
FINDINGS AND CONCLUSIONS
IN THE AUTHORITY'S VIEW, THE RESPONDENT'S REFUSAL TO NEGOTIATE ON THE
COMPLAINANT'S PROPOSAL AFTER IT HAD BEEN DETERMINED TO BE NEGOTIABLE BY
THE COUNCIL IS VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER. THE
STUDY COMMITTEE REPORT AND RECOMMENDATIONS WHICH LET TO THE ISSUANCE OF
THE ORDER STATED THAT A LABOR ORGANIZATION SHOULD BE PERMITTED TO FILE
AN UNFAIR LABOR PRACTICE COMPLAINT WHEN IT BELIEVES THAT A MANAGEMENT
OFFICIAL HAS BEEN ARBITRARY OR IN ERROR IN EXCLUDING A MATTER FROM
NEGOTIATION WHICH HAS ALREADY BEEN DETERMINED TO BE NEGOTIABLE THROUGH
THE PROCESSES OF THE ORDER. /7/ IN THE CIRCUMSTANCES, HEREIN, THE
COMPLAINANT FOLLOWED THE PROCEDURES OF THE ORDER BY REQUESTING AN
AGENCY
HEAD DETERMINATION REGARDING THE NEGOTIABILITY OF ITS PROPOSAL AND THEN
APPEALING THE ADVERSE DECISION TO THE COUNCIL PURSUANT TO THE LATTER'S
REGULATIONS.
AS A RESULT OF THE COUNCIL'S DECISION TO SET ASIDE THE AGENCY HEAD'S
NONNEGOTIABILITY DETERMINATION THE RESPONDENT BECAME OBLIGATED TO
NEGOTIATE ON THE SUBJECT PROPOSAL. A DEFENSE THAT NEGOTIATIONS WERE
BEING HELD IN ABEYANCE PENDING REFERRAL OF A REQUEST TO THE ATTORNEY
GENERAL FOR AN OPINION AS TO THE RESPONSIBILITY OF THE VA ADMINISTRATOR
TO ABIDE BY A RULING OF THE COUNCIL DOES NOT RELIEVE THE RESPONDENT OF
ITS BARGAINING OBLIGATION UNDER THE ORDER. /8/ THE RESPONDENT'S FAILURE
TO FULFILL ITS BARGAINING OBLIGATION IN THESE CIRCUMSTANCES IS VIOLATIVE
OF THE ORDER. /9/
THE EVIDENCE HEREIN ESTABLISHES THAT THE RESPONDENT'S REPRESENTATIVES
AT THE VA HOSPITAL IN SALEM, VIRGINIA, REFUSED TO NEGOTIATE WITH AFGE,
LOCAL 1739, BASED UPON DIRECTION FROM HIGHER AGENCY MANAGEMENT. IN THIS
REGARD, IT HAS BEEN HELD BY THE COUNCIL THAT THE ACTS AND CONDUCT OF
AGENCY MANAGEMENT, AT A HIGHER LEVEL OF AN AGENCY'S ORGANIZATION, MAY
PROVIDE THE BASIS FOR FINDING A VIOLATION OF ANY PART OF SECTION 19(A)
OF THE ORDER, BUT, MAY NOT, STANDING ALONE, PROVIDE THE BASIS FOR
FINDING A SEPARATE VIOLATION BY "AGENCY MANAGEMENT" AT A LOWER
ORGANIZATIONAL LEVEL OF THE AGENCY SOLELY ON THE BASIS OF ITS
MINISTERIAL ACTIONS IN IMPLEMENTING THE DIRECTIONS FROM HIGHER AGENCY
AUTHORITY. /10/ BASED ON THIS RATIONALE, THE AUTHORITY FINDS THAT THE
VETERANS ADMINISTRATION AT THE AGENCY LEVEL VIOLATED SECTION 19()(1) AND
(6) OF THE ORDER BY, IN EFFECT, PROHIBITING THE LOCAL VA HOSPITAL FROM
NEGOTIATING WITH AFGE, LOCAL 1739. FURTHER, THE AUTHORITY FINDS THAT
THE VA HOSPITAL IN SALEM, VIRGINIA, BY FOLLOWING THE DIRECTIONS FROM
HIGHER AGENCY MANAGEMENT, DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF
THE ORDER.
ORDER /11/
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE VETERANS ADMINISTRATION, SHALL:
1. CEASE AND DESIST FROM:
(A) DIRECTING LOCAL REPRESENTATIVES AT THE VETERANS ADMINISTRATION
HOSPITAL IN SALEM, VIRGINIA, NOT TO NEGOTIATE WITH THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1739, AFL-CIO, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES AT THE HOSPITAL IN SALEM, VIRGINIA, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON A PROPOSAL PERTAINING
TO REPRESENTATION FOR PROBATIONARY EMPLOYEES BEFORE A PROFESSIONAL
STANDARDS BOARD, WHICH PROPOSAL WAS FOUND NEGOTIABLE BY THE FEDERAL
LABOR RELATIONS COUNCIL.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1739, AFL-CIO, MEET AND CONFER, OR CAUSE THE VETERANS
ADMINISTRATION HOSPITAL, SALEM, VIRGINIA, TO MEET AND CONFER, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROPOSAL PERTAINING TO
REPRESENTATION FOR PROBATIONARY EMPLOYEES BEFORE A PROFESSIONAL
STANDARDS BOARD.
(B) POST AT THE VETERANS ADMINISTRATION HOSPITAL IN SALEM, VIRGINIA,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS
THEY SHALL BE SIGNED BY THE ADMINISTRATOR OF THE VETERANS ADMINISTRATION
AND SHALL BE POSTED AND MAINTAINED BY THE DIRECTOR OF THE HOSPITAL IN
SALEM, VIRGINIA, FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(C) NOTIFY THE 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., AUGUST 21, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
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 EMPLOYEES OF THE VETERANS
ADMINISTRATION HOSPITAL IN SALEM, VIRGINIA, THAT:
WE WILL NOT DIRECT LOCAL REPRESENTATIVES OF THE VETERANS
ADMINISTRATION HOSPITAL IN SALEM, VIRGINIA, TO REFUSE TO NEGOTIATE WITH
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1739, AFL-CIO,
THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES AT THE HOSPITAL IN SALEM,
VIRGINIA, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROPOSAL PERTAINING TO REPRESENTATION FOR PROBATIONARY EMPLOYEES BEFORE
A PROFESSIONAL STANDARDS BOARD, WHICH PROPOSAL WAS FOUND NEGOTIABLE BY
THE FEDERAL LABOR RELATIONS COUNCIL.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1739, AFL-CIO, MEET AND CONFER, OR CAUSE THE VETERANS
ADMINISTRATION HOSPITAL, SALEM, VIRGINIA, TO MEET AND CONFER, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROPOSAL PERTAINING TO
REPRESENTATION FOR PROBATIONARY EMPLOYEES BEFORE A PROFESSIONAL
STANDARDS BOARD.
. . .
(AGENCY OR 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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: ROOM 416 VANGUARD BUILDING, P.O. BOX 19257, 1111 20TH
STREET, N.W., WASHINGTON, D.C. 20036, AND WHOSE TELEPHONE NUMBER IS:
(202) 254-6581.
/1/ A BRIEF SUBMITTED BY THE COMPLAINANT WAS UNTIMELY FILED AND
THEREFORE HAS NOT BEEN CONSIDERED.
/2/ THE RECORD REVEALS THAT THE PROBATIONARY EMPLOYEES ARE MEDICAL
PERSONNEL AND ARE COVERED BY SPECIFIC SECTIONS OF THE UNITED STATES CODE
WHICH HAVE BEEN INCORPORATED IN OR EXPANDED UPON IN VA REGULATIONS.
/3/ 38 U.S.C. 4108(A) STATES, IN PERTINENT PART:
NOTWITHSTANDING ANY LAW, EXECUTIVE ORDER, OR REGULATION, THE (VA)
ADMINISTRATOR SHALL
PRESCRIBE BY REGULATION THE HOURS AND CONDITIONS OF EMPLOYMENT AND
LEAVES OF ABSENCE OF
PHYSICIANS, DENTISTS, NURSES, PHYSICIAN ASSISTANTS, AND EXPANDED
FUNCTION DENTAL AUXILIARIES
APPOINTED TO THE DEPARTMENT OF MEDICINE AND SURGERY . . .
/4/ SECTION 11(A) OF THE ORDER STATES, IN PERTINENT PART:
AN AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, THROUGH
APPROPRIATE REPRESENTATIVES, SHALL MEET AT REASONABLE TIMES AND
CONFER IN GOOD FAITH WITH
RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS, SO FAR
AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS,
INCLUDING . . . PUBLISHED AGENCY
POLICIES AND REGULATIONS FOR WHICH A COMPELLING NEED EXISTS UNDER
CRITERIA ESTABLISHED BY THE
FEDERAL LABOR RELATIONS COUNCIL . . .
/5/ FLRC 76A-88 (FEBRUARY 28, 1978), REPORT NO. 144.
/6/ THE AUTHORITY HAS SINCE BEEN ADMINISTRATIVELY ADVISED THAT ON
FEBRUARY 2, 1979, THE DEPARTMENT OF JUSTICE RENDERED ITS OPINION FINDING
THAT 38 U.S.C. 4108() DID NOT PROHIBIT THE COUNCIL FROM REQUIRING THE
RESPONDENT TO NEGOTIATE WITH THE COMPLAINANT ON ITS PROPOSAL AND THAT
THE RESPONDENT WOULD NOT BE ACTING UNLAWFULLY SHOULD IT IMPLEMENT THE
COUNCIL'S DECISION.
/7/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE, 1975, P. 71.
/8/ CF. DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, 3 FLRC 188,
FLRC 74A-46 (MARCH 20, 1975). REPORT NO. 67, WHEREIN THE COUNCIL FOUND,
IN PERTINENT PART, THAT A PARTY MAY NOT RELIEVE ITSELF FROM AN
OBLIGATION UNDER THE ORDER BY REQUESTING AN OPINION FROM ANOTHER AGENCY.
SUCH AN ACTION IS NOT A DEFENSE TO AN UNFAIR LABOR PRACTICE CHARGE.
/9/ THIS DOES NOT IMPLY THAT THE RESPONDENT COULD NOT REQUEST AN
OPINION FROM ANOTHER AGENCY, BUT ONLY THAT THE RESPONDENT WAS NOT
RELIEVED OF ITS BARGAINING OBLIGATIONS UNDER THE ORDER DURING THE
PENDENCY OF SUCH REQUEST.
/10/ CF. NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA AND SECRETARY
OF THE NAVY, DEPARTMENT OF THE NAVY, WASHINGTON, D.C., 5 FLRC 303, FLRC
761-37 (MAY 4, 1977), REPORT NO. 125.
/11/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
ACT OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.