35:0188(23)CA - - VA (Washington, DC) and VA Hospital (Brockton, MA) and NAGE, SEIU - - 1990 FLRAdec CA - - v35 p188

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[ v35 p188 ]
35:0188(23)CA
The decision of the Authority follows:


35 FLRA No. 23

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS ADMINISTRATION (WASHINGTON, D.C.) AND

VETERANS ADMINISTRATION HOSPITAL

(BROCKTON, MASSACHUSETTS)(*/)

(Respondents)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

SEIU, AFL-CIO

(Charging Party/Union)

1-CA-50259

DECISION AND ORDER

March 22, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached Administrative Law Judge's decision.

The complaint alleged that the Respondents violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by discontinuing the practice of allowing employees of the Respondent Brockton Veterans Administration Hospital's (hereinafter the Respondent) Dietetic Service to consume surplus coffee during their break periods without providing the Charging Party (the Union) an opportunity to negotiate over the decision. The Union also filed a negotiability appeal concerning whether a proposal to permit the Respondent's employees to continue to consume surplus coffee was negotiable. Pursuant to section 2424.5 of the Authority's Rules and Regulations, the Union elected to pursue the negotiability appeal and, accordingly, processing of the unfair labor practice case was suspended.

In its decision on the negotiability appeal, the Authority held that the Union's proposal was outside the duty to bargain because the Union had not established that the consumption of surplus coffee concerned conditions of employment. National Association of Government Employees, Local R1-25 and Veterans Administration Medical Center, Brockton, Massachusetts, 23 FLRA 266 (1986) (VAMC Brockton). Thereafter, processing of the unfair labor practice case was resumed. The Judge found that the Authority's decision in VAMC Brockton precluded the resolution of the same issue in the present unfair labor practice proceeding. Therefore, the Judge dismissed the unfair labor practice complaint in this case.

We find, in agreement with the Judge, that the Authority's holding in VAMC Brockton resolved the issue presented in this unfair labor practice case. Therefore, the General Counsel cannot relitigate the same issue in the present unfair labor practice case and we shall order that the complaint in this case be dismissed.

II. Background

For 17 years, the employees of the Respondent's Dietetic Service were allowed to drink surplus coffee with milk and sugar. The surplus coffee was consumed solely by the employees and management during the 10-minute breaks following the patients' breakfast and lunch, from which the coffee was left over.

On January 5, 1985, the Respondent's Chief of Dietetic Services advised the Union that she was going to discontinue the practice of permitting employees to drink the surplus coffee. The Respondent contended that allowing the employees to consume the surplus coffee was in violation of Veterans Administration (VA) Regulations which prohibit the Agency from providing free food to its employees. The parties subsequently met to discuss the implementation of the prohibition. The Respondent contended that it could negotiate only the impact and implementation of the change, because it was eliminating an illegal practice. The Union's position was that the practice should be retained. The practice was eliminated on March 29, 1985, after the parties' negotiations broke down.

The Union filed both a negotiability appeal under section 7105(a)(2)(E) of the Statute and the present unfair labor practice charge. The Union elected under section 2424.5 of the Authority's Rules and Regulations to process first the negotiability appeal.

In its August 19, 1986, decision on the negotiability appeal in VAMC Brockton, the Authority found that there was an insufficient basis on which to conclude that the issue of employee consumption of surplus coffee concerned the working conditions of unit employees. The Authority noted that the Union had provided "no specific information as to how the disposal of the coffee is related to the work situation of employees or the work relationship," such as whether consumption of the coffee occurred when employees were on-duty or off-duty or whether consumption was tied to their status as employees as opposed to being a privilege afforded to any member of the public present at the facility at the time the surplus coffee was available. VAMC Brockton at 268. Therefore, the Authority concluded that it had no basis for rejecting the Agency's contention that the Union's proposal to maintain the practice of allowing employees to drink the surplus coffee did not concern conditions of employment. Accordingly, the Authority found that the proposal was not within the duty to bargain because it did not involve conditions of employment.

Further, while the Authority concluded in VAMC Brockton that the proposal did not concern conditions of employment, the Authority rejected the Agency's additional contention that 5 U.S.C. § 5536 prohibited the Agency from providing surplus coffee to its employees.

Some months after the issuance of VAMC Brockton, the General Counsel resumed the prosecution of the present unfair labor practice complaint.

III. The Judge's Decision

The Judge noted that in National Labor Relations Board Union v. FLRA, 834 F.2d 191 (D.C. Cir. 1987) (NLRBU), the United States Court of Appeals for the District of Columbia Circuit affirmed the Authority's determination that unfair labor practice remedies are unavailable in negotiability cases where an agency declines to bargain but does not indicate bad faith by taking action before the negotiability dispute has been resolved. The Judge found, however, that the present case does not present such a "pure" negotiability issue, because the Respondent unilaterally implemented its decision to suspend the consumption of surplus coffee on March 29, 1985. Judge's Decision at 5. Nevertheless, the Judge recommended that the unfair labor practice complaint in this case be dismissed.

The Judge noted that, in VAMC Brockton, the Authority found that the Union had failed to make a record which demonstrated that the consumption of surplus coffee had become a term and condition of employment. The Judge noted further that the Authority, therefore, concluded in VAMC Brockton that the duty to bargain did not extend to that matter.

The General Counsel claimed that the record in VAMC Brockton was not complete and that the facts developed at the investigation and trial in this proceeding, which were not part of the negotiability proceeding, establish that the consumption of surplus coffee had become an established condition of employment. The Judge found, instead, that "it would seem an abuse of the system and an affront to considerations of judicial economy, to disregard the Authority's determination [in VAMC Brockton] that there was no duty to bargain in the circumstances, and to proceed on an unfair labor practice which requires that the duty to bargain be shown to exist in the very same circumstances." Judge's Decision at 6. Therefore, the Judge concluded, the Union is precluded from seeking to relitigate in this unfair labor practice proceeding the question of whether the consumption of surplus coffee is a condition of employment.

The Judge concluded further that, in order to avoid a remand should his recommended dismissal of the unfair labor practice in this case be rejected, the General Counsel had established that the use of surplus coffee was a term of employment, as it was a long and consistent practice. Finally, the Judge rejected the Respondent's claim that the practice of drinking surplus coffee was illegal. The Judge found that the Authority had resolved that issue in VAMC Brockton.

IV. General Counsel's Exceptions

The General Counsel argues that nothing in section 2423.5 or 2424.5 of the Authority's Rules and Regulations precludes a labor organization from pursuing a related issue through both the negotiability and unfair labor practice proceedings. The General Counsel argues further that, if a union elects to process a matter initially through one or the other procedure, nothing in the Statute precludes subsequent utilization of the other procedure. The General Counsel cites National Treasury Employees Union and Department of Health and Human Services, Region VII, Office of Human Development Services, 17 FLRA 589 (1985) (Office of Human Development Services) and National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 32 FLRA 721 (1988) (U.S. Army Corps of Engineers) in support of its contentions.

The General Counsel contends that the purpose and intent of requiring a union to select which procedure to proceed under is to avoid the unnecessary costs associated with processing simultaneous actions. According to the General Counsel, the processing of the negotiability appeal or the unfair labor practice complaint in most instances will resolve the dispute or provide the parties with sufficient guidance to resolve the dispute themselves. The General Counsel contends that in this case, however, the Authority's decision in VAMC Brockton did not resolve the question as to whether the drinking of surplus coffee involved a condition of employment. In the General Counsel's view, the Authority did not simply decide that there was no duty to bargain because the Union did not meet the burden of proof. Rather, the General Counsel contends that the Authority rejected the Respondent's contention that providing surplus coffee was contrary to law. Further, according to the General Counsel, the Authority set forth in VAMC Brockton the type of record that would be necessary to establish that the proposal involved a condition of employment.

The General Counsel claims that the Respondent not only ignored the Authority's guidance but also chose to relitigate its position that the drinking of surplus coffee was contrary to law. The General Counsel argues that "the Respondent must be held accountable for its conduct since it 'acted at its peril' by unilaterally ending a well established past practice in the face of the Union's demand to bargain." Exceptions at 4. The General Counsel concludes that the adoption of the Judge's rationale would discourage unions from selecting the negotiability procedures.

The General Counsel notes further that the Judge found that the use of coffee was a term and condition of employment because it was a long and consistent practice. The General Counsel argues that because it is undisputed that the Respondent eliminated that practice without bargaining, the Respondent violated section 7116(a)(1) and (5) of the Statute and, consequently, a status quo ante remedy is appropriate.

In addition, the General Counsel contends that to the extent the Judge relied on the time lapse between the Authority's decision in VAMC Brockton and the issuance of the complaint in this case, such reliance is misplaced and not relevant to the determination of the issues in this proceeding. Finally, the General Counsel argues that the Authority should not adopt the Judge's statement that "'it is an unfair labor practice to decline to negotiate concerning a subject which the Authority has already determined to be negotiable.'" Exceptions at 6 quoting the Judge's Decision at footnote 3. The General Counsel contends that such a statement is an extension of the doctrine that "it is an unfair labor practice under certain circumstances to refuse to negotiate over a proposal which is the same or without material difference from a proposal found negotiable by the Authority[.]" Exceptions at 6 (emphasis in original).

V. Analysis

We conclude, in agreement with the Judge, that because the complaint in this case raises no issues not previously disposed of in VAMC Brockton, the General Counsel cannot relitigate the merits of the same issues before the Authority in this unfair labor practice case. Therefore, the complaint in this case should be dismissed in its entirety.

We note that the parties in a case before the Authority bear the burden of creating a record that will allow the Authority to make a full and complete determination on the issues raised. See, for example, American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA 987, 996 (1987) (Proposal 5) and the cases cited therein. In a negotiability case, a union is afforded the opportunity to respond to agency arguments by filing a response to the agency's statement of position. See section 7117(c)(4) of the Statute and section 2424.7 of the Authority's Rules and Regulations.

In VAMC Brockton, the Respondent filed a statement of position raising, among other matters, the issue as to whether the consumption of surplus coffee involved a condition of employment. The Union did not, however, file a response to this statement of position. Accordingly, the Union did not take advantage of its opportunity to litigate the merits of the Respondent's contention that the consumption of surplus coffee did not involve conditions of employment. Based on the record before it, the Authority determined that there was an insufficient basis for finding that the disposal of leftover coffee concerned working conditions. The Authority noted that the Union "provided no specific information as to how the disposal of the coffee is related to the work situation of employees or the employment relationship," such as whether consumption of the coffee occurred when employees were on-duty or off-duty or whether consumption was tied to their status as employees as opposed to being a privilege afforded to any member of the public present at the facility at the time the surplus coffee was available. VAMC Brockton, at 268. Thus, the Authority concluded that the proposal did not concern conditions of employment and, therefore, the proposal was "not within the duty to bargain." Id.

The issue of whether the disposal of leftover coffee involved working conditions of affected employees was litigated and resolved in VAMC Brockton. Accordingly, we conclude that the General Counsel may not relitigate that issue in this case. See National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Honolulu, Hawaii, 11 FLRA 17 (1983).

In so concluding, we reject the General Counsel's reliance on Office of Human Development Services and U.S. Army Corps of Engineers to support its position that the Authority will resolve the same issue involving the same parties in both a negotiability decision and an unfair labor practice decision. In Office of Human Development Services, 17 FLRA 589, the agency asserted again in a negotiability proceeding that a proposal, which had been the subject of a prior unfair labor practice decision by the Authority, was nonnegotiable, but it did so on grounds different from those it had advanced in the unfair labor practice proceeding. In U.S. Army Corps of Engineers, 32 FLRA 721, a negotiability case, the Authority noted that although the agency's refusal to bargain, to the extent consistent with law, had been resolved by a prior unfair labor practice decision, there was no assertion in the unfair labor practice case that the subject matter of the Union's proposal was nonnegotiable. The Authority noted that the issue of whether the proposal was within the duty to bargain was not resolved in the unfair labor practice proceeding and, accordingly, the Authority could proceed to determine whether the proposal was consistent with law, rule, and regulation.

In our view, neither of the cases cited by the General Counsel involved, as does this case, the relitigation of previously litigated disputes. Rather, each of the cases cited by the General Counsel involved the resolution of new issues that were not raised by any of the parties in the prior litigation. Here, the General Counsel presents arguments concerning the merits of the Respondent's contention, made in VAMC Brockton, that consumption of surplus coffee does not involve a condition of employment. The opportunity to raise such arguments was available in the course of VAMC Brockton and the Union failed to take advantage of its opportunity in that proceeding to present its arguments. Having failed to do so, it may not seek a second opportunity to present its arguments on the same issue in an unfair labor practice proceeding.

We note, in this regard, that there is nothing in the record before us to show that application of this standard is inequitable here. For example, there is no assertion that the Union was improperly prevented in any way from presenting its arguments in the negotiability proceeding. It is not necessary, therefore, to decide whether the standard would apply if such a circumstance were present.

We also reject the General Counsel's claim that a decision precluding a party from pursuing a related issue through both negotiability and unfair labor practice procedures "would discourage unions from selecting the negotiability procedures" because "a union would [not] risk losing a negotiability appeal on procedural grounds at the cost of not being able to pursue an unfair labor practice charge where full remedial relief is available." Exceptions at 4-5. We note first that the Authority's decision in VAMC Brockton was not a procedural dismissal in which the substantive issues raised in the case were not resolved. Compare United States Customs Service, Washington, D.C. and United States Customs Service, Pacific Region, 25 FLRA 248 (1987), rev'd as to other matters sub nom. U.S. Customs Service v. FLRA, 854 F.2d 1414 (D.C. Cir. 1988) (negotiability of proposals was resolved in unfair labor practice case even though the proposals had been included in a previous negotiability appeal which had been dismissed as untimely filed). Rather, the Authority's decision in VAMC Brockton resolved the substantive issues raised in that case. The Authority determined that the Agency had no duty to bargain over the Union's proposal.

Second, nothing in the Authority's Regulations concerning a party's election to proceed under an unfair labor practice proceeding or a negotiability proceeding supports a conclusion that a party may litigate the same issues in both proceedings. Rather, the procedures enable the filing party to pursue in a second proceeding any issues which are unresolved after the first proceeding. In this regard, certain issues may be resolved only in an unfair labor practice or a negotiability proceeding. For example, allegations that a proposal is nonnegotiable because it conflicts with an agency regulation for which there is a compelling need must be resolved in a negotiability proceeding. Federal Labor Relations Authority v. Aberdeen Proving Ground, 108 S. Ct. 1261 (1988). Similarly, allegations that a party has no duty to bargain over a proposal (apart from allegations that a proposal itself is nonnegotiable) may not be resolved in a negotiability proceeding. See, for example, American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 769 (1987) (in a negotiability proceeding, the Authority will resolve only allegations that a proposal conflicts with law, rule, or regulation; "[t]o the extent that there are additional issues regarding the duty to bargain . . . these issues should be resolved in other appropriate proceedings."). Where cases involve only an agency's allegation that a proposal is nonnegotiable and do not involve actual or contemplated changes in conditions of employment, these cases must be resolved in a negotiability proceeding. 5 C.F.R. §§ 2423.5, 2424.5. See also NLRBU, 834 F.2d 191, affirming Decision on Petition for Amendment of Rules, 23 FLRA 405 (1986).

In cases which involve issues which may be resolved in only one forum as well as other issues which may be resolved in both, the selection procedure enables a union to determine which issues will be resolved first. Unresolved issues may then be litigated in the second proceeding. Only in cases where all issues may be resolved in an unfair labor practice proceeding (such as a case involving a change in conditions of employment where an agency alleges both that it has no duty to bargain over a proposal and that a proposal is nonnegotiable for reasons other than compelling need) would a union possibly be encouraged to pursue unfair labor practice procedures instead of negotiability procedures. Even in that situation, however, a union may choose to utilize a negotiability proceeding for various reasons, including the assurance that it can obtain a decision from the Authority as compared to the possibility that the General Counsel may decide not to issue an unfair labor practice complaint.

As the General Counsel acknowledges, the processing of a negotiability appeal or an unfair labor practice complaint will "in most instances either resolve the dispute or provide the parties with sufficient guidance so that they can resolve the dispute between themselves." Exceptions at 3 (emphasis in original). If a party were allowed to litigate the same issues in both negotiability and unfair labor practice proceedings, however, the issuance of a decision in the first proceeding would not resolve most disputes. The losing party would be able to seek a new determination in the second proceeding. In our view, such a practice would, thereby, encourage needless litigation.

In summary, we agree with the Judge that because the issue of whether the disposal of leftover coffee involved the working conditions of affected employees was litigated and resolved in VAMC Brockton, the General Counsel may not relitigate that issue in this case.

Although we conclude that the issues resolved in VAMC Brockton may not be relitigated in this unfair labor practice case, we note that the Judge made two statements which are not consistent with Authority precedent. First, the Judge concluded that the General Counsel had established "that use of the coffee was a term of employment. It was a long and consistent practice." Judge's Decision at 7. However, the Authority has held, and we adhere to the holding, that a term or condition of employment may not be established solely on the basis that it has been shown to be a past practice. See, for example, Lowry Air Force Base, Denver, Colorado, 29 FLRA 566, 570 (1987). Compare American Federation of Government Employees, Local 2614 v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (if a matter is unquestionably within or outside the duty to bargain, the existence or lack of past practice is irrelevant to the question whether the matter is a condition of employment, but that in close cases past practice can be determinative). Therefore, we do not adopt the Judge's statement.

In addition, the Judge stated that it is an unfair labor practice "to decline to negotiate concerning a subject which the Authority has already held to be negotiable." Judge's Decision at 5 n.3 (emphasis added). The Authority has held only that a refusal to bargain in similar circumstances over a proposal which is not materially different from a proposal which the Authority has previously determined to be negotiable violates section 7116(a)(1) and (5) of the Statute. Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981), aff'd sub nom. Department of the Air Force, United States Air Force Academy v. FLRA, 717 F.2d 1314 (10th Cir. 1983). See also Internal Revenue Service, 32 FLRA 57, 59 (1988). It is not necessary in this case to determine the extent, if any, to which the Authority's holding concerning proposals may be extended to "subjects." We do not, therefore, adopt the Judge's statement.

VI. Conclusion

The underlying issue raised by the unfair labor practice allegation in this case, that is, whether the consumption of excess coffee by the Respondent's Dietetic Service employees is a condition of employment, was previously resolved in VAMC Brockton. Therefore, we conclude that the General Counsel cannot relitigate this issue in this unfair labor practice proceeding. Accordin