44:1055(84)NG - - AFGE Local 2145 and VA Medical Center, Richmond, Virginia - - 1992 FLRAdec NG - - v44 p1055



[ v44 p1055 ]
44:1055(84)NG
The decision of the Authority follows:


44 FLRA No. 84

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2145

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

RICHMOND, VIRGINIA

(Agency)

0-NG-1970

ORDER DISMISSING PETITION FOR REVIEW

April 30, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. For the following reasons, we find that the Union's petition for review was untimely filed and, therefore, must be dismissed.

II. Background and Proposal

The Agency and the Union began negotiations for a supplemental agreement in 1989. On August 15, 1989, the Union submitted a proposal, identified as Article 12, Section 4, regarding the retention of admonishments and reprimands in Agency files. According to the Union, on June 4, 1990, and August 22, 1990, it submitted revised proposals for Article 12, Section 4.(*) Thereafter, the parties completed bargaining on the supplemental agreement, except for Article 12, Section 4.

On November 1, 1990, the parties signed a Memorandum of Understanding (MOU) that stated:

The Department of Veterans Affairs Medical Center, Richmond, Virginia, hereinafter referred to as the Employer and the American Federation of Government Employees Local 2145, hereinafter referred to as the Union, hereby agree that pending a decision on a negotiability appeal to be filed by the Union on its Article 12, Section 4 proposal of the supplemental agreement, contract negotiations for a supplemental agreement will be deemed to have been completed. The Union hereby withdraws any and all other outstanding Articles and Sections not previously agreed upon, except for the disputed provisions of its Article 12, Section 4 proposal, which deal with the retention of admonishments and reprimands in files maintained by the Employer. If a determination is made by proper authority that the Union's Article 12, Section 4 proposal is negotiable, the parties jointly agree to reopen supplemental agreement negotiations for the sole purpose of amending the agreement to include provisions for the retention and/or disposal of admonishments and reprimands. In view of these considerations, the supplemental agreement is considered to be accepted, pending ratification by the general membership of the Union and approval by the Chief Medical Director.

By the affixing of the respective representative's signature, this Memorandum of Understanding is hereby adopted by the parties on the date indicated.

Agency's Statement of Position (Statement), Attachment 6 (emphasis in original). The parties executed their supplemental agreement on May 16, 1991.

On July 25, 1991, the Union submitted the proposal for Article 12, Section 4 which is the subject of this petition and requested an allegation of nonnegotiability from the Agency. The Agency did not respond to the Union's request for an allegation of nonnegotiability. On August 14, 1991, the Union filed a petition for review with the Authority on the negotiability of that proposal, which states:

ARTICLE 12

Section 4 - In accordance with the Federal Personnel Manual, government-wide regulations, and any future amendments of same, management agrees that, if an employee's record since an admonishment so warrants, the admonishment will be removed from the employee's OPF [Official Personnel File] after a six - (6) month period. In all cases, the admonishment will be removed after two - (2) years, except that [an] admonishment for patient abuse may be retained for longer periods of time. If an employee has been reprimanded and his record so warrants, the reprimand will be removed from the employee's file after a two - (2) year period. In all cases reprimands will be removed after a three - (3) year period except that reprimands for patient abuse may be retained for longer periods of time. All Admonishments and Reprimands except [for] patient abuse will be removed from the employee's OPF in accordance with the FPM [Federal Personnel Manual] and the Master Agreement and the removed copy will be returned to the employee. All other copies will be destroyed and not stored in any other location for future use.

III. Positions of the Parties

A. Agency

The Agency contends that the Union's petition for review was untimely filed and, therefore, must be dismissed. The Agency notes that the time limit for filing a petition for review is 15 days after the date that an agency alleges that a proposal is nonnegotiable. Citing Authority precedent, the Agency contends that an MOU between a union and an agency "acknowledging that a proposal is outside the duty to bargain constitute[s] a simultaneous request by the [u]nion and a response of nonnegotiability by the [a]gency to start the running of the time limits for filing an appeal with the Authority." Statement at 7.

The Agency notes that in this case, the parties entered into the MOU on November 1, 1990, in which they acknowledged that they were in dispute as to the negotiability of the Union's proposal regarding Article 12, Section 4 and that "settlement of Article 12 would only take place following a negotiability determination by the Authority." Id. at 6. The Agency asserts that, consistent with Authority precedent, the MOU constituted a simultaneous request for an allegation of nonnegotiability and a response of nonnegotiability. The Agency notes that rather than filing a petition for review within 15 days after the execution of the MOU, the Union filed its petition for review with respect to Article 12, Section 4 on August 14, 1991. Accordingly, the Agency contends that the petition for review is untimely.

In the Agency's view, the wording of the proposal that is the subject of the petition for review is more specific than the proposal that was the subject of the MOU. However, according to the Agency:

[T]he proposals are substantially the same. Each deals with three specific items: (1) the length of time that an admonishment and a reprimand can remain in an employee's file; (2) the circumstances under which the documents may be removed from the file prior to the normal expiration time; and, (3) the procedures to follow with regard to disposal of the documents upon expiration of the agreed to time limits."

Id. at 10-11. The Agency contends that based on "the Authority's application of parties' expressions in MOUs that [an agency] has alleged that a proposal is nonnegotiable, and considering the mandatory filing time limitations in [5 C.F.R.] § 2424.3, there can be no doubt that" the petition for review is untimely and must be dismissed. Id. at 11.

In the alternative, the Agency argues that if the Authority finds that the proposals in the MOU and in the petition for review are different and that the petition for review is, therefore, timely when measured from the Union's July 25, 1991, request for an allegation of nonnegotiability, the petition should be dismissed because there is no dispute as to the negotiability of the proposal. The Agency contends that if the proposals are different, the filing of the petition "not only breaches the parties' prior agreement, but it does not meet the requirements of a negotiability appeal. There is no issue here as to whether or not the proposal is bargainable; rather, the issue is whether the new proposal is or is not a part of the parties' MOU." Id. at 12. The Agency asserts that such determinations are appropriate for resolution in an unfair labor practice proceeding rather than in a negotiability appeal.

B. Union

The Union asserts that its petition for review is properly before the Authority and that the proposal is negotiable. The Union notes that in several cases the Authority has addressed the effect of MOUs in which an agency had taken a position that a proposal was nonnegotiable and a union had stated its intent to appeal the agency's position. The Union acknowledges that in those cases the Authority determined that the MOUs constituted a simultaneous written request by a union for an agency's allegation of nonnegotiability and the agency's written response of nonnegotiability.

However, the Union contends that the MOU in this case did not constitute a simultaneous written request by the Union for an allegation of nonnegotiability and a written response by the Agency. The Union asserts that the MOU does not identify the specific language in dispute or contain an allegation of nonnegotiability by the Agency. According to the Union, its "agreement to the MOU in this case was not a request for allegations but, rather, was a basic groundrules agreement with the [A]gency as to how all remaining matters would be handled." Response at 9. The Union asserts that the Agency has never made a written allegation of nonnegotiability as to any of the versions of the proposals relating to Article 12, Section 4.

Moreover, the Union states that it disagrees with the Authority's policy of considering some MOUs as a simultaneous written request by a union for an allegation of nonnegotiability as to a proposal and an agency's written response of nonnegotiability. The Union contends that this policy does not foster the amicable settlement of disputes through collective bargaining rather than through the use of the Authority's processes. According to the Union, "the parties' efforts to arrive at 'the amicable settlements of disputes' concerning the often disruptive nature of allegations of nonnegotiability made during bargaining sessions is not served well when those very efforts jeopardize the union's choice of time on the initiation of" a negotiability appeal. Id. at 14-15. Noting the Authority's policy that the negotiability appeal process may be initiated only if a union requests an allegation of nonnegotiability, the Union asserts that "[t]o interpret such an MOU as being a request, logically there must be a request expressed in the language. Also, there should be an express response written in the MOU's terms." Id.

Further, the Union disputes the Agency's assertion that the proposal that is the subject of the petition for review was not presented to the Agency during the negotiations preceding the execution of the MOU. The Union submitted an affidavit of a local Union representative which states that the proposal that is the subject of the petition for review was presented to the Agency during negotiations on August 22, 1990, and was rejected by the Agency as being nonnegotiable.

With respect to the negotiability of the proposal, the Union contends that the proposal is consistent with applicable FPM provisions and Agency regulations. The Union further contends that even if the proposal affects management's right to discipline, the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

IV. Analysis and Conclusions

For the following reasons, we conclude that the petition for review is untimely filed.

A. The MOU Constituted a Written Request by the Union for an Allegation of Nonnegotiability and a Written Response by the Agency

Under section 2424.3 of the Authority's Rules and Regulations, a union must file a petition for review of an allegation of nonnegotiability within 15 days of service of the agency's written allegation in response to a request from the union for such an allegation. We have found that an MOU between an agency and a union in which the parties state that they are in dispute as to the negotiability of a proposal, and the union states its intent to file a petition for review as to the proposal, constitutes a written request for an allegation and a written response to the request under section 2424.3 of our Regulations. Where the parties have agreed to such an MOU, we have held that the petition for review must be filed within 15 days from the date of the MOU. See, for example, American Federation of Government Employees, AFL-CIO, Local 3790 and The Department of Interior, Bureau of Land Management, 7 FLRA 393 (1981) (Interior, Bureau of Land Management). See also National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 403 (1990) (Treasury, IRS).

In the case before us, it is clear that, during negotiations, the parties disagreed as to the negotiability of Article 12, Section 4. The parties thereupon entered into the MOU in which they agreed that: (1) the Union would file a negotiability appeal as to Article 12, Section 4; and (2) if Article 12, Section 4 was found negotiable, they would reopen negotiations. We conclude that the substance of the MOU in this case is similar to that of the MOU discussed in Interior, Bureau of Land Management. We find, therefore, that the MOU in this case, like the MOU in Interior, Bureau of Land Management, amounted to a written request by the Union for an allegation of nonnegotiability and a simultaneous written response by the Agency alleging that the proposed matter was nonnegotiable.

We reject the Union's contention that the MOU in this case is similar to the memorandum in Treasury, IRS, 35 FLRA at 403. In Treasury, IRS, the union submitted a memorandum to the agency that included the union's proposals for future negotiations and suggested procedures that the parties could follow during bargaining. Unlike the MOU in the case before us, the memorandum in Treasury, IRS was not jointly signed by the parties and was not the product of unsuccessful negotiations. Accordingly, the Union's reliance on Treasury, IRS is misplaced.

We also reject the Union's contention that the Authority's previous decisions on this matter, including Interior, Bureau of Land Management, are inconsistent with the Statute. Specifically, we reject the Union's assertions that the Authority's precedent does not foster amicable resolution of disputes through collective bargaining and is inconsistent with the principle that unions initiate the process for filing negotiability appeals by determining when to request an allegation of nonnegotiability. In our view, the disputed decisions foster amicable resolution of disputes by encouraging parties to reach agreement where possible and by allowing parties to resolve negotiability issues without delaying implementation of agreements on issues that are not in dispute. Moreover, inasmuch as such an MOU reflects the mutual agreement of a union and an agency, unions remain fully able to determine whether and when to initiate the negotiability appeals process by seeking to incorporate appropriate terms in that MOU or by not signing an MOU that the union believes is inconsistent with its interests.

In sum, the MOU in this case constitutes a written request by the Union for an allegation of nonnegotiability and a simultaneous written response by the Agency alleging that the proposed matter was nonnegotiable. B. The Petition for Review Was Untimely Filed

We have determined that the MOU in this case constitutes a simultaneous written request by the Union for an allegation of nonnegotiability as to Article 12, Section 4 and response by the Agency alleging the nonnegotiability of Article 12, Section 4. We must next determine if the petition for review concerns the same or a substantially similar proposal as the one that was the subject of the MOU. If it does, the timeliness of the petition for review of Article 12, Section 4 is governed by the date of the MOU.

The Union asserts that the Article 12, Section 4 proposal referenced in the MOU is an August 22, 1990 proposal that is identical to the proposal contained in the petition for review. The Agency contends that the Union did not submit the proposal that is contained in the petition for review to the Agency during bargaining and, therefore, it cannot be the proposal referenced in the MOU. The Agency asserts that the parties based their MOU on the Union's proposal of June 4, 1990, and that although the proposal in the petition for review is worded differently from that proposal, the two proposals are substantially similar.

Based on the record before us, and in the absence of a contention that the MOU refers to any other proposal, we find that the MOU refers either to the proposal contained in the petition for review or to the Union's proposal of June 4,

1990. We need not resolve which of these two proposals is the subject of the MOU because we find that they are substantially similar. See National Federation of Federal Employees, Local 284 and U.S. Department of Defense, Naval Air Engineering Center, Lakehurst, New Jersey, 39 FLRA 1537 (1991).

The text of the June 4 proposal is set forth in the Appendix. The text of the proposal contained in the petition for review, which, according to the Union, was submitted to the Agency on August 22, 1990, is set forth above. Based on a careful examination of both proposals, we find that they are alike in all significant respects and, therefore, are substantially similar. The fact that the proposals contain some differences in wording and that the proposal contained in the petition for review specifically includes an exception for admonishments and reprimands for patient abuse does not warrant a contrary conclusion. Both proposals provide that admonishments may remain in an employee's OPF for a minimum period of 6 months up to a maximum of 2 years, that reprimands may remain in an employee's OPF for a minimum period of 2 years but not longer than 3 years, and that other copies of the removed material will not be stored in other locations. Accordingly, the petition for review concerns the same or a substantially similar proposal as the one that was the subject of the MOU.

Where a later proposal contains only insubstantial modifications of an earlier proposal, "the appeal of the later proposal constitutes an untimely attempt to seek review of the earlier proposal." Id. at 1540. Because the petition for review concerns the same or a substantially similar proposal as the one that was the subject of the MOU, the timeliness of the petition for review of Article 12, Section 4 is governed by the date of the MOU. The parties' MOU was signed on November 1, 1990. The Union filed its petition for review on August 14, 1991. Consequently, the Union's petition for review was untimely filed under the Authority's Rules and Regulations. Accordingly, the Union's petition for review will be dismissed.

V. Order

The Union's petition for review is dismissed.

APPENDIX

The Union's proposal of June 4, 1990, concerning Article 12, Section 4 stated:

Article 12

Section 4 - As proscribed [sic] by the rules and regulation[s] of the FPM and the CFR, and any changes thereto, management agrees that if the employee[']s record so warrants, an admonishment may be removed from the employee's file after a six (6) month period. In all cases the admonishment will be removed after two (2) years. If an employee has been reprimanded and his record so warrants, the reprimand may be removed after a two year period. In any event, reprimands will be removed after (3) years. An admonishment or a reprimand which has been removed from the Official Personnel File because it is over age will not be retained in any other file and will not be used as the basis for any subsequent Personnel action unless a subsequent infraction for which subsequent discipline is planned or in process has occurred on or before the date when the previous discipline would have bee