17:0408(64)CA - Harry S. Truman Memorial Veterans Hospital, Columbia, MO and AFGE Local 3399 -- 1985 FLRAdec CA

 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.