American Federation of Government Employees, Local 491, AFL-CIO (Union) and Veterans Administration Medical Center, Bath, New York (Agency) 

 



[ v04 p358 ]
04:0358(45)NG
The decision of the Authority follows:


 4 FLRA No. 45
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 491
 Union
 
 and
 
 VETERANS ADMINISTRATION MEDICAL CENTER,
 BATH, NEW YORK
 Agency
 
                                            Case No. O-NG-264
 
                DECISION AND ORDER ON NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
    THE RECORD IN THIS CASE SHOWS THAT IN 1971 THE VETERANS
 ADMINISTRATION ESTABLISHED A POLICY OF NOT PROVIDING FREE NOONTIME MEANS
 TO MEDICAL OFFICERS OF THE DAY DURING THE STANDARD 8:00 A.M.-- 4:30
 P.M., MONDAY THROUGH FRIDAY WORKWEEK.  THIS POLICY WAS NOT IMPLEMENTED
 BY THE MEDICAL CENTER, BATH, N.Y.  THE MEDICAL CENTER WAS INSTRUCTED TO
 DO SO IN 1979 BY THE VETERANS ADMINISTRATION WITH THE ISSUANCE OF A
 PROFESSIONAL LETTER.  PURSUANT THERETO, THE DIRECTOR OF THE MEDICAL
 CENTER ISSUED A MEMORANDUM DATED JANUARY 11, 1980, IMPLEMENTING THE
 AFOREMENTIONED POLICY.  IN THIS CONNECTION, IT APPEARS THAT THE PARTIES
 ARE IN DISAGREEMENT CONCERNING WHETHER MEDICAL OFFICERS OF THE DAY ARE
 ASSIGNED TO STANDARD (9 HOUR) OR IRREGULAR (24 HOUR) SHIFTS FOR PURPOSES
 OF THE POLICY.
 
    THE UNION MADE A REQUEST TO NEGOTIATE WITH THE AGENCY ON THE
 DECISION, IMPACT AND IMPLEMENTATION OF THE NON-AUTHORIZATION OF FREE
 NOONTIME MEALS TO THE MEDICAL OFFICERS OF THE DAY DURING THE STANDARD
 WORKWEEK.  THE AGENCY AGREED TO NEGOTIATE WITH THE UNION ON THE IMPACT
 AND IMPLEMENTATION, BUT NOT ITS DECISION CONCERNING THE
 NON-AUTHORIZATION OF FREE NOONTIME MEALS DURING THE STANDARD WORKWEEK.
 DURING THE NEGOTIATIONS, HOWEVER, THE UNION DID NOT PRESENT A SPECIFIC
 PROPOSAL TO THE AGENCY, AND IN CONNECTION WITH THE NEGOTIATIONS, HAS
 FILED AN UNFAIR LABOR PRACTICE CHARGE.
 
    THIS APPEAL, WHICH SEEKS A NEGOTIABILITY DECISION CONCERNING AN
 AGENCY INITIATED CHANGE WITHOUT PRESENTING A SPECIFIC UNION PROPOSAL,
 BEARS NO MATERIAL DIFFERENCE FROM THE APPEAL WHICH WAS BEFORE THE
 AUTHORITY IN ASSOCIATION OF CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE
 OF ALABAMA NATIONAL GUARD, 2 FLRA NO. 39(1979).  IN THAT CASE, THE
 AUTHORITY DETERMINED THAT A NEGOTIABILITY APPEAL WHICH DID NOT PRESENT A
 PROPOSAL SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM AND CONTENT AS TO
 PERMIT THE AUTHORITY TO RENDER A NEGOTIABILITY DECISION THEREON DID NOT
 MEET THE CONDITIONS FOR REVIEW SET FORTH IN SECTION 7117 OF THE STATUTE
 AND SECTION 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS (5 C.F.R.
 2424.1), AND CONSEQUENTLY MUST BE DISMISSED.
 
    ADDITIONALLY, INSOFAR AS IT APPEARS THAT THE ESSENCE OF THE UNION'S
 APPEAL IN THE PRESENT CASE RELATES TO AN ALLEGED UNILATERAL CHANGE IN
 WORKING CONDITIONS AND A REFUSAL TO BARGAIN WITH RESPECT THERETO, THE
 PROPER FORUM IN WHICH TO RAISE THIS ISSUE IS NOT A NEGOTIABILITY APPEAL,
 BUT RATHER WOULD BE AN UNFAIR LABOR PRACTICE PROCEEDING PURSUANT TO
 SECTION 7118 OF THE STATUTE.  IN THIS REGARD, RESOLUTION OF THE INSTANT
 DISPUTE IS DEPENDENT UPON THE RESOLUTION OF FACTUAL ISSUES RELATED TO
 THE PARTIES' CONDUCT.  SUCH FACTUAL DETERMINATIONS CAN BEST BE
 ACCOMPLISHED THROUGH USE OF THE INVESTIGATORY AND FORMAL HEARING
 PROCEDURES SET FORTH IN PART 2423 OF THE AUTHORITY'S RULES AND
 REGULATIONS WHICH GOVERN UNFAIR LABOR PRACTICE PROCEEDINGS (5 CFR 2423.1
 ET SEQ.).  (SEE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 95
 AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, MIDWEST
 REGION, 2 FLRA NO. 65(1980).)
 
    ACCORDINGLY, FOR THE REASONS SET FORTH IN THE STATE OF ALABAMA
 NATIONAL GUARD CASE, SUPRA, AND BECAUSE OF THE PRESENCE OF UNFAIR LABOR
 PRACTICE ISSUES, IS IS ORDERED THAT THE UNION'S APPEAL BE DISMISSED.  IT
 IS FURTHER ORDERED THAT SUCH DISMISSAL SHALL BE WITHOUT PREJUDICE TO
 EITHER:  THE RENEWAL OF ITS CONTENTION THAT THE MATTERS IN DISPUTE, AS
 PROPOSED TO BE NEGOTIATED, ARE NEGOTIABLE UNDER THE STATUTE IN A
 PETITION DULY FILED WITH THE AUTHORITY;  OR