50:0220(40)CA - - VA Medical Center, Nashville, TN and AFGE, Local 2400 - - 1995 FLRAdec CA - - v50 p220



[ v50 p220 ]
50:0220(40)CA
The decision of the Authority follows:

50 FLRA No. 40

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

NASHVILLE, TENNESSEE

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2400

(Charging Party/Union)

AT-CA-30628

_____

DECISION AND ORDER

March 2, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

The Administrative Law Judge issued the attached decision granting the General Counsel's motion for summary judgment, denying the Respondent's cross-motion for summary judgment, and finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing its decision to use covert electronic surveillance in certain circumstances without providing the Union notice and an opportunity to negotiate about the impact and implementation of that change in conditions of employment. As a remedy, the Judge recommended that the Respondent be ordered to cease and desist from the conduct which was found to violate the Statute and to post a notice. The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition to those exceptions.

Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II. Judge's Decision

The Judge's Decision, which fully sets forth the facts and other matters related to this proceeding, is attached and will not be summarized here.

III. Positions of the Parties

A. Respondent's Exceptions

The Respondent claims that the Judge erred by: (1) concluding that it had admitted, in its answer to the complaint, that it had changed conditions of employment of unit employees by acquiring the capability to use covert electronic surveillance equipment; (2) finding that the Respondent was obligated to bargain over the impact and implementation of the change; (3) relying on an affidavit of the Union's President, which was based on employees' fears about the use of covert electronic surveillance equipment, to conclude that the effect of the change on unit employees' conditions of employment was more than de minimis; and (4) refusing to consider whether Union proposals offered in response to the change were negotiable.

B. General Counsel's Opposition

The General Counsel argues that the Judge's Decision is consistent with the Statute and requests that the Authority adopt it.

IV. Analysis and Conclusions

For the following reasons, we find no merit in any of the Respondent's four exceptions. First, the Judge did not err in concluding that the Respondent conceded in its answer to the complaint that it had changed a condition of employment affecting bargaining unit employees. The complaint alleged that the Respondent installed its covert electronic surveillance capability to be used for internal security purposes "without providing the Union with notice and an opportunity to negotiate the impact and implementation of the change." General Counsel Exhibit 1(e) at 2 (section 12). The Respondent admitted the allegation in its answer to the complaint. General Counsel Exhibit 1(f) at 2 (section 12). In the absence of any further evidence or explanation by the Respondent, the Judge properly found that the Respondent conceded a change in conditions of employment giving rise to an obligation to bargain.

Second, we agree with the Judge, for the reasons stated in his decision, that even though the Respondent had the right under section 7106(a)(1) of the Statute to install covert electronic surveillance equipment, it was nevertheless obligated to negotiate, under section 7106(b)(2) and (3), over the impact and implementation of the change. See United States Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 43 FLRA 642, 658-63 (1991), enforced, 12 F.3d 882 (9th Cir. 1993).

With regard to the Respondent's third exception, the Authority is not bound by the Federal Rules of Civil Procedure.(*) However, the Authority has stated that "[m]otions for summary judgment filed with Administrative Law Judges pursuant to section 2423.19 of our Regulations serve the same purpose and have the same requirements as motions for summary judgment filed with United States District Courts pursuant to Rule 56 of the Federal Rules of Civil Procedure." Department of the Navy, U.S. Naval Ordnance Station, Louisville, Kentucky and Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL-CIO, 33 FLRA 3, 4-6 (1988), rev'd on other grounds sub nom. Department of the Navy, U.S. Naval Ordnance Station, Louisville, Kentucky v. FLRA, No. 88-1861 (D.C. Cir. Aug. 9, 1990). Consistent with courts' interpretations of Rule 56, a party opposing a motion for summary judgment cannot rely on its pleading alone, but must show by affidavits or otherwise that there is a genuine issue of material fact. For example, Brown v. Chaffee, 612 F.2d 493, 504 (10th Cir. 1979). We find that the Respondent has not demonstrated that there was a genuine issue of material fact as to the Union President's affidavit on which the Judge relied. As such, the Judge properly relied on the Union President's affidavit in concluding to the contrary.

Finally, the Judge did not err by concluding that the negotiability of the proposals submitted by the Union after the implementation of the change was not part of the complaint before him. Events that take place after a unilateral change in conditions of employment are irrelevant to a determination of whether a violation of the Statute resulted from the unilateral action. See Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575, 581 (1992).

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee shall:

1. Cease and desist from:

(a) Failing and refusing to provide the American Federation of Government Employees, Local 2400, the exclusive representative of an appropriate unit of its employees, appropriate notice and an opportunity to negotiate concerning the impact and implementation of its decision to use covert electronic surveillance whenever necessary for security purposes.

(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 Federal Service Labor-Management Relations Statute:

(a) Upon request, negotiate with the American Federation of Government Employees, Local 2400 concerning the impact and implementation of its decision to use covert electronic surveillance whenever necessary for security purposes.

(b) Notify the American Federation of Government Employees, Local 2400 prior to changing conditions of employment of unit employees and, upon request, negotiate to the extent consonant with law and regulation.

(c) Post at its facilities where bargaining unit employees are located, 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, 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 such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Atlanta Region, Federal Labor Relations Authority, 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30309-3102, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to provide the American Federation of Government Employees, Local 2400, the exclusive representative of an appropriate unit of our employees, appropriate notice and an opportunity to negotiate concerning the impact and implementation of our decision to use covert electronic surveillance whenever necessary for security purposes.

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 negotiate with the American Federation of Government Employees, Local 2400, upon request, concerning the impact and implementation of our decision to use covert electronic surveillance whenever necessary for security purposes.

WE WILL notify the American Federation of Government Employees, Local 2400 prior to changing conditions of employment of unit employees and, upon request, negotiate to the extent consonant with law and regulation.

______________________________

(Activity)

Date: ____________________ By: ______________________________

(Signature) (Title)

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, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30309-3102, and whose telephone number is: (404) 347-2324.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001



DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER
NASHVILLE, TENNESSEE
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2400
Charging Party

Case No. AT-CA-30628

Ronald H. Dooley
Counsel for the Respondent

Richard S. Jones
Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER
Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondent violated section 7116(a)(l) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(l) and) (5), by implementing its decision to use covert electronic surveillance whenever necessary for security purposes without providing the Charging Party (Union) notice and an opportunity to negotiate the impact and implementation of the change.(*)

Respondent's answer admitted this conduct, but denied that it violated the Statute.

Thereafter, Counsel for the General Counsel moved for summary judgment, and Counsel for Respondent filed a cross-motion for summary judgment and/or motion for dismissal. The Regional Director referred the matter to this Office for disposition.

Considering all the pleadings and exhibits, it appears that there are no genuine issues of material fact and that the General Counsel is entitled to summary judgment as a matter of law. Accordingly, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

The Union, a labor organization under 5 U.S.C. § 7103(a) (4), is the exclusive representative of a unit of employees appropriate for collective bargaining at the Respondent, an agency under 5 U.S.C. § 7103(a)(3).

By letter dated August 24, 1992, Bryant R. Hardison, Union President, advised William Hardwick, Respondent's Chief, Personnel Services, that Hardison had been informed by the Chief of Security Services that Security Services intended to purchase and install surveillance cameras in selected work places throughout the facility. Hardison stated that if management intended to purchase these cameras, he was making an official demand to bargain over the impact and implemen- tation regarding the use of such equipment.

Hardison sent the letter because he "foresaw potential adverse impact on the bargaining unit since surveillance equipment could be used as evidence of wrongdoing by an employee in a disciplinary matter." Therefore, Hardison desired to submit proposals on the implementation of the equipment's use and on the potential impact.

By letter dated December 4, 1992, Mr. Hardwick advised Mr. Hardison that "this type of surveillance [covert electronic surveillance] deals with our internal security practices and is necessary to ensure the proper handling of V.A. property. It is, therefore, not a negotiable subject."Mr. Hardwick's letter did not confirm whether Respondent had purchased and installed such equipment.

By memorandum dated January 15, 1993, Mr. Hardwick advised the Union as follows:

This will notify you that this Medical Center has the capability to use covert electronic surveillance and will do so when management determines that such use is necessary for security purposes.

Respondent admits, and I find, that it "implemented the change described [in the January 15, 1993 memorandum] without providing the Union with notice and an opportunity to negotiate the impact and implementation of the change."

The Union, by President Hardison, again requested to bargain on the impact and implementation of the use of the equipment on January 26, 1993 and February 4, 1993. On May 21, 1993, the Union submitted 13 proposals to Respondent under the heading "Impact and Implementation Negotiations." The record does not reflect any specific response of Respondent to the proposals; however, Union President Hardison's affidavit of March 17, 1994 reveals that "the Center, by Hardwick, continues to refuse to bargain over any aspect of the impact and implementation of the use of the surveillance equipment."

Discussion and Conclusions

The General Counsel contends that Respondent violated section 7116(a) (l) and (5) of the Statute by failing to provide the Union notice and an opportunity to bargain on the impact and implementation of its decision to use covert surveillance equipment.

Respondent defends on the basis that it had no duty to negotiate the impact and implementation of its notice. Respondent claims that its notice to the Union "that it had the 'capability to use covert electronic surveillance' was informing the union of its decision to acquire the capability to use covert electronic surveillance equipment when it was deemed necessary for its legitimate security interests under 5 USC § 7106(a)(l)."

Section 7116(a)(5) of the Statute makes it an unfair labor practice for an agency to fail or refuse to bargain in good faith with an exclusive representative of its employees. As a result, an agency must provide the exclusive representa- tive with notice of proposed changes in conditions of employment affecting unit employees and an opportunity to bargain over those aspects of the changes that are negotiable. U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Memphis, Tennessee, 42 FLRA 712, 713 (1991) (VAMC). Even if the subject matter of the change is outside the duty to bargain, an agency must bargain about the impact and implementation of a change in conditions of employment that has more than a de minimis impact on unit employees. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Hartford District Office, Hartford, Connecticut, 41 FLRA 1309, 1317 (1991).

Respondent's January 15, 1993 notice advised the Union of its capability to use covert electronic surveillance and its intent to do so when management determined that such use was necessary for security purposes. Respondent also admitted that such notice constituted a "change" and that it implemented the change.

Respondent does not dispute that the change involved a condition of employment within the meaning of section 7103(a)(14) of the Statute, and I so find. Respondent represented to the Union that the covert electronic surveillance was necessary to ensure the proper handling of Respondent's property and did not dispute the Union's understanding that the Chief of Security intended to install such equipment in selected work places throughout the facility. Therefore, the change pertained to unit employees and affected their working conditions. See Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1986).

The right of management under section 7106(a)(l) of the Statute "to determine the . . . internal security practices of the agency" has been held by the Authority to include the equipment to be used. International Brotherhood of Police Officers and General Services Administration, Region 2, New York, New York, 47 FLRA 397, 398 (1993). However, as noted, management's right "to determine the . . . internal security practices of the agency" is expressly "[s]ubject to subsection (b)" which, as relevant here, does not pre-clude an agency and labor organization from negotiating "(2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials."

The test established in Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 408 (1986) to determine whether a change had more than a de minimis impact on unit employees and required such impact and implementation bargaining involves consideration of "the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees." U.S. Equal Employment Opportunity Commission, 40 FLRA 1147, 1156 (1991). The affidavit of Union President Hardison reflects that he requested bargaining and desired to submit proposals because he "foresaw potential adverse impact on the bargaining unit since surveillance equipment could be used as evidence of wrongdoing by an employee in a discipli- nary matter." Respondent disputes that the "Charging Party's fears are a fact," but its assertion is not supported by affidavits or otherwise. See Fed. R. Civ. P. 56(e). Accordingly, I conclude that no genuine issue of material fact is presented in this regard and that the record establishes that the reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees was more than de minimis and required impact and implementation bargaining.

Respondent's failure to provide the Union appropriate notice of its decision to use covert electronic surveillance and an opportunity to negotiate the impact and implementation of the change, pursuant to section 7106(b)(2) and (3), prior to its implementation, violated section 7116(a)(1) and (5), as alleged. The negotiability of the proposals which the Union submitted after the implementation of the change was not part of the complaint and is not before me. U.S. Department of the Treasury, Internal Revenue Service, Louisville District, Louisville, Kentucky, 42 FLRA 137, 143 (1991).

Counsel for the General Counsel seeks a cease and desist order, a notice posting, and an affirmative order directing Respondent to negotiate with the Union and giving any agreement reached retroactive effect.

The requested relief, with the exception of the retroactive bargaining order, is appropriate. I conclude that a prospective bargaining order is appropriate to remedy the Respondent's violation of the Statute. It appears that the parties have not bargained at all, and this remedy would not preclude the parties from giving retroactive effect to any agreement reached. In addition, a prospective bargaining order provides the parties with the flexibility to determine whether, and with regard to which matters, retroactivity best meets their needs. U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 989, 992-93 (1990).

Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee shall:

1. Cease and desist from:

(a) Failing and refusing to provide the American Federation of Government Employees, Local 2400, the exclusive representative of an appropriate unit of its employees, appropriate notice and an opportunity to negotiate concerning the impact and implementation of its decision to use covert electronic surveillance whenever necessary for security purposes.

(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 Federal Service Labor-Management Relations Statute:

(a) Upon request, negotiate with the American Federation of Government Employees, Local 2400, the exclusive representative of an appropriate unit of its employees, concerning the impact and implementation of its decision to use covert electronic surveillance whenever necessary for security purposes.

(b) Notify the American Federation of Government Employees, Local 2400, the exclusive representative of an appropriate unit of its employees, prior to changing conditions of employment of unit employees and, upon request, negotiate to the extent consonant with law and regulation.

(c) Post at its facilities where bargaining unit employees are located, 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, 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 such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Atlanta Region, Federal Labor Relations Authority, 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30309-3102, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

2. Respondent's motion for summary judgement and/or motion for dismissal is denied.

Issued, Washington, DC, May 6, 1994,

____________________________
GARVIN LEE OLIVER
Administrative Law Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to provide the American Federation of Government Employees, Local 2400, the exclusive representative of an appropriate unit of our employees, appropriate notice and an opportunity to negotiate concerning the impact and implementation of our decision to use covert electronic surveillance whenever necessary for security purposes.

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 negotiate with the American Federation of Government Employees, Local 2400, the exclusive representative of an appropriate unit of our employees, upon request, concerning the impact and implementation of our decision to use covert electronic surveillance whenever necessary for security purposes.

WE WILL notify the American Federation of Government Employees, Local 2400, the exclusive representative of an appropriate unit of our employees, prior to changing conditions of employment of unit employees and, upon request, negotiate to the extent consonant with law and regulation.

______________________________
(Activity)

Date:_____________ By:____________________________

(Signature) (Title)

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 of the Federal Labor Relations Authority, Atlanta Region, Federal Labor Relations Authority, 1371 Peachtree Street, NE, Suite 122, Atlanta, GA and whose telephone number is: (404) 347-2324.




FOOTNOTES:
(If blank, the decision does not have footnotes.)


Authority's Footnote Follows:

*/ Food and Drug Administration, Mid-Atlantic Region, Philadelphia, Pennsylvania and American Federation of Government Employees, AFL-CIO, Council No. 242, 48 FLRA 884, 8