53:0236(32)CA - - VA, Washington, DC and NFFE Council of Consolidated VA Locals - - 1997 FLRAdec CA - - v53 p236



[ v53 p236 ]
53:0236(32)CA
The decision of the Authority follows:


53 FLRA No. 32

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, D.C.

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

COUNCIL OF CONSOLIDATED VA LOCALS

(Charging Party/Union)

WA-CA-20795

_____

DECISION AND ORDER

August 1, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel.(1)

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to negotiate with the Union over the payment of a public transit subsidy to bargaining unit employees.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, but for reasons that differ from those of the Judge. Accordingly, we dismiss the complaint.

II. Background and Judge's Decision

The undisputed facts of this case are more fully set forth in the Judge's decision. The Union is the exclusive representative of a nationwide consolidated unit of the Respondent's non-professional employees. By letters dated April 22, 1992, and May 29, 1992, respectively,(2) the Union requested that the Respondent negotiate the payment of a public transit subsidy pursuant to Pub. L. 101-509, Title VI, § 629, 104 Stat. 1478 (1990). That law addressed the use of incentives to reduce the cost to employees of using public transportation.(3)

In its May 29 correspondence, the Union objected to the Respondent's claim that it needed more time to study its transit subsidy proposal. The Union stated, in this regard, that the Respondent had previously advised it that a management group was considering the transit subsidy issue and would make a recommendation to the Respondent's Secretary. The Union further stated that it had subsequently learned that the Respondent was paying a transit subsidy to employees in Los Angeles. The Union then resubmitted and requested bargaining over its April 22 proposal.(4)

On June 11, having received no response to its May 29 correspondence, the Union filed the unfair labor practice charge that resulted in the complaint now pending before us. Thereafter, by letter dated June 19, the Respondent advised the Union that it had no duty to bargain over transit subsidies until such time as its Secretary determined to participate in the program. The Respondent explained that the governing law that authorized the transit subsidy program specifically provided that "a Federal agency may participate." Judge's Decision at 2. In the Respondent's view, as it had not made a decision to participate, "there [was] no bargaining obligation." Id. at 3. No further communications were exchanged by the parties concerning this issue.

The General Counsel issued a complaint alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain in good faith with the Union over a public transit subsidy for bargaining unit employees.(5)

The Judge concluded that the Respondent did not violate the Statute, as alleged. In reaching this conclusion, the Judge first characterized the General Counsel's position as alleging that the Respondent refused to bargain over a proposal that the Authority had found to be negotiable in National Federation of Federal Employees, Council of VA Locals and U.S. Department of Veterans Affairs, Washington, D.C., 49 FLRA 923 (1994) (VA Locals). The Judge then stated that under current Authority precedent, as enunciated in Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981), it is well established that a respondent violates the Statute by refusing to bargain over a proposal that the Authority has previously determined to be negotiable. The Judge further stated, citing Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 23 FLRA 738 (1988), that it is also well established that a violation will not be found where, at the time of an agency's refusal to bargain, no established Authority precedent exists.

The Judge found that in this case the Respondent's refusal to bargain "was tantamount to declaring the Union's proposal nonnegotiable." Judge's Decision at 3. The Judge then observed that VA Locals was not decided until after the General Counsel had issued the complaint. Accordingly, the Judge concluded that at the time of the Respondent's refusal to bargain, there was no prior precedent that was dispositive of the issue.

Based on the foregoing circumstances, the Judge found that the General Counsel had failed to establish that the Respondent had violated the Statute. Therefore, without addressing the Respondent's alternative defense that the Union's proposal was covered by the parties' bargaining agreement, the Judge recommended that the complaint be dismissed.

III. General Counsel's Exceptions

In its exceptions, the General Counsel maintains that the Judge erred in finding that its theory of the case was premised solely on the Authority's decision in VA Locals. According to the General Counsel, it specifically argued at the hearing and in its post-hearing brief that under Pub. L. 103-172, the Respondent had the discretion to decide whether it would participate in a transit subsidy program and, because its discretion was not unfettered, it was required to bargain over the issue.

In support of this position, the General Counsel points out that the complaint in this case was issued prior to the Authority's decision in VA Locals and, therefore, "it is obvious that [its] theory of violation was not . . . predicated solely on [VA Locals]." Exceptions at 5. In addition, the General Counsel cites various portions of the record and arguments made in its post-hearing brief to show that it advanced this theory throughout the course of this proceeding.

The General Counsel additionally contends that had the Judge addressed its original theory of the case, he would have concluded that the Respondent was obligated to bargain over the Union's proposal. In this connection, the General Counsel asserts that "[t]he Authority has consistently held that, where a law or regulation provides an agency with discretion over a matter affecting conditions of employment, the agency is obligated . . . to exercise that discretion through bargaining unless the governing law or regulation specifically requires that only the agency may exercise that discretion." Id. at 8-9 (quoting National Federation of Federal Employees, Local 29 and U.S. Department of the Army, Engineer District, Kansas City, Missouri, 45 FLRA 603 (1992) (NFFE, Local 29). The General Counsel further asserts that the Authority has determined that "it is only where law or applicable regulation vests an agency with exclusive authority or unfettered discretion over a matter that the exercise of the agency's discretion is not subject to negotiation." Id. at 9 (quoting NFFE, Local 29).

The General Counsel submits that nothing in the plain language of Pub. L. 103-172 indicates that an agency's authority to establish a transit subsidy program is either exclusive or unfettered and, therefore, not subject to collective bargaining. According to the General Counsel, in its decision in VA Locals the Authority affirmed this view. The General Counsel, therefore, urges that the Judge's decision be reversed.

IV. Analysis and Conclusions

This case concerns the Union's request that the Respondent bargain, mid-term, over its proposal concerning the payment of a public transit subsidy. As previously noted, in its June 19 response to the Union's request, the Respondent stated that "there is no bargaining obligation." Judge's Decision at 3.

The record shows that throughout the course of this proceeding the Respondent offered various explanations in support of its refusal to bargain. In particular, the Respondent asserted that it was not obligated to bargain over transit subsidies "because the negotiability of the issue [was] outstanding substantively[.]" Tr. at 18. The Respondent also maintained that employees' commuting expenses do not constitute conditions of employment. Tr. at 11. In addition, the Respondent argued that the parties' collective bargaining agreement "specifically provides that [the Union] will pursue negotiability appeals when the parties disagree over the negotiability of any specific proposal." Tr. at 9. Based on these and similar statements, we conclude that the Respondent's refusal to bargain was premised on the view that payment of a public transit subsidy was outside the duty to bargain under section 7117 of the Statute.

The Authority has a well-established framework for resolving unfair labor practice complaints that involve allegations that there is no statutory obligation to bargain over a particular matter under section 7117. In Decision on Petition for Amendment of Rules, 23 FLRA 405, 407-08 (1986) aff'd sub nom. National Labor Relations Board Union v. FLRA, 834 F.2d 191 (D.C. Cir. 1987), the Authority held:

Unfair labor practice remedies are available in appropriate refusal to bargain situations, such as (1) where the refusal to negotiate is accompanied by unilateral changes in conditions of employment; and (2) where an agency refuses to bargain over a proposal substantially identical to one which the Authority has previously determined to be negotiable under the Statute.

(Footnote and citations omitted).

Analyzing this case under the above-stated framework, two points are clear: (1) the General Counsel did not allege a unilateral change in conditions of employment;(6) and (2) the Respondent did not refuse to bargain over a proposal that is substantially identical to one that the Authority previously found to be negotiable. With regard to the latter point, prior to the issuance of VA Locals -- which was subsequent to the refusal to bargain and the resultant complaint -- the Authority had never addressed the negotiability of a transit subsidy proposal.

The General Counsel contends that the Judge erred in failing to address its primary theory of violation. More specifically, the General Counsel asserts that throughout the course of this proceeding it has argued that under Pub. L. 103-172, the Respondent had the discretion to decide whether it would participate in a transit subsidy program and, because its discretion was not unfettered, the Respondent was required to bargain over this subject at the Union's request. The record shows that the General Counsel did advance this theory throughout the course of this case. Accordingly, we find that the Judge erroneously failed to address the General Counsel's primary theory of violation.

Despite this finding, the General Counsel's theory does not provide support for finding a violation of section 7116(a)(1) and (5). The Authority has never relied on a general negotiability principle to conclude that an agency committed an unfair labor practice by refusing to bargain over a specific proposal, as the General Counsel contends. In reaching this conclusion, we note that in VA Locals, 49 FLRA 923, this same Respondent was directed to bargain, upon request, over a proposal concerning the payment of a public transit subsidy. Consequently, for more than three years this same Union has had a basis on which to pursue bargaining over substantially similar proposals. Given these specific circumstances, we are not persuaded that it is appropriate to adopt a change in Authority precedent in this case, as the General Counsel's theory would require.

As the General Counsel does not argue that a unilateral change in conditions of employment was involved and, as there was no established Authority precedent at the time of the Respondent's refusal to bargain, we conclude that the Judge correctly found that the Respondent had lawfully declined to bargain with the Union concerning the payment of a public transit subsidy. See, for example, Panama Canal Commission, Republic of Panama, 52 FLRA 747, 753 (1996). In our view, the Respondent simply exercised its right under section 7117(c) of the Statute to allege that the Union's proposal was outside the duty to bargain. Accordingly, we dismiss the complaint.

V. Order

The complaint is dismissed.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, DC

Respondent

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, COUNCIL OF CONSOLIDATED VA LOCALS

Charging Party

Case No. WA-CA-20795

Barry M. Tapp and
Gregory A. Burke, Esqs.
For the Respondent

Stephen G. De Nigris
For the General Counsel

Before: ELI NASH, JR.
Administrative Law Judge

DECISION

Statement of the Case

On April 7, 1994 the Acting Regional Director of the Washington Region of the Federal Labor Relations Authority (herein called the Authority), pursuant to a charge filed on June 1, 1992 by the National Federation of Federal Employees, Council of Consolidated VA Locals (herein called the Union), issued a Complaint and Notice of Hearing alleging that the Department of Veterans Affairs, Washington, D.C. (herein called the Respondent), engaged in unfair labor practices within the meaning of section 7116(a)(1) and (5) of the Statute by refusing to negotiate with the Union over a public transit subsidy for bargaining unit employees.

This case has a lengthy procedural history basically because the General Counsel moved for summary judgment in the matter contending that there were no genuine issues of material fact. Since the relevant procedural matters are covered in the body of this decision, I see no necessity to set them out here. In essence, Respondent answered that material issues of fact surrounding the issue of a waiver existed and urged that the motion for summary judgment be denied. On August 10, 1994, the Chief Administrative Law Judge denied the motion for summary judgment because, in his opinion "factual disputes remain" which required a hearing.

A hearing on the Complaint was conducted in Washington, D.C. at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally.(1) The parties filed timely briefs.

Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence I make the following:

Findings of Fact

The material facts are as follows:

The Union is the certified exclusive representative of a unit of employees at the Respondent.

On April 22 and May 29, 1992, respectively the Union wrote Daniel Sobrio, the Director of Labor Management Rela-tions proposing to negotiate Respondent payments of a public transit subsidy for unit employees under Pub. L. 101-509.(2) The Union also noted in its May 29, 1992 correspondence that it discovered that transit subsidy monies were being paid to employees in Los Angeles even though Respondent claimed that it "had no position on the payments and a management group was considering the issue and would make a recommendation . . . ."

On June 11, 1992, the Union filed an unfair labor practice charge in the matter stating that Respondent had answered its proposal to bargain the public transit subsidy issue on May 11, 1992, by saying that it would "inform us when they have given the issues a thorough review."

On June 19, 1992, Sobrio responded stating:

As you are aware, Public Law 101-509, is the govern-ing law which authorizes the transit subsidy. The specific subsidy provision provides that "a Federal agency may participate." The Department has to date made no decision to participate; therefore, there is no bargaining obligation.(3)

The record shows no further communications between the parties on this particular issue.

Discussion and Conclusions

The Complaint in this case was issued on April 7, 1994 alleging that the Union proposed to negotiate over a public transit subsidy for bargaining unit employees on May 29, 1992 and that Respondent refused to negotiate relying on Pub. L. 101-509 on June 19, 1992. It is worthy of note, that the Complaint in this matter was never amended.

The substance of the Complaint is that Respondent refused to bargain in June 1992 because of its reading of PL 101-509 and because of a previous decision of the Washington Regional Director dismissing a charge concerning the identical issues as found in this case.

At the hearing and in its brief, the General Counsel's position clearly is that Respondent refused to bargain a proposal that was found negotiable by the Authority in National Federation of Federal Employees, Council of VA Locals and U.S. Department of Veterans Affairs, 49 FLRA 923(1994). The negotiability decision certainly seems to make it clear that the proposal is not, as Respondent contends inconsistent with Pub. L. 103-172. It is firmly established that a respondent violates the Statute where it contends as a reason for its refusal to bargain that a proposal is nonnegotiable although there is Authority precedent holding that the proposal is negotiable. Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981). Clearly, however, the Authority will not find a violation where no established precedent exists at the time of an agency's refusal to bargain. 182nd Tactical Air Support Group, Illinois Air National Guard, The Adjutant General of Illinois, Springfield, Illinois, 10 FLRA 381 (1982); Department of Health and Human Services, 23 FLRA 738 (1988). Here, Respondent's action in the case was tantamount to declaring the Union's proposal nonnegotiable.

The obvious problem in this case, which the General Counsel does not overcome, is that the negotiability decision on which the General Counsel relies did not exist in June 1992, but was issued almost two years, to the day, after the Union's request to bargain in the case. Thus, there was no negotiability precedent at the time of Respondent's alleged refusal to bargain. Furthermore, no other requests to bargain over the matter were ever made either before or after the above cited negotiability decision issued in May 1994. Thus, the matter seems to have languished for some time in the Regional Office awaiting the outcome of an negotiability decision concerning the same or similar matters. Addition-ally, for some unexplained reason, the Complaint in the case was issued about a month before the Authority issued its decision on the negotiability matter, but the Complaint, as already noted, was never amended to encompass a new theory of violation. An immediate question is raised as to whether there is any support for the position that the General Counsel now takes, that Respondent refused to bargain over a matter which already had been found negotiable by the Authority. To do so would require intuitiveness on the part of Respondent, since the Complaint issued espousing this theory prior to the Authority's release of the negotiability decision on which the General Counsel now relies. Since the negotiability decision did not exist at the time Respondent allegedly refused to bargain over the transit subsidies or at the time the Complaint in this case issued and, furthermore since the Complaint was not amended to encompass the theory on which the General Counsel now relies, it is my view that it cannot now be used as grounds for a violation which occurred almost two years prior to its issuance.

My search of the record revealed no new requests to bargain or any response by Respondent that it refused to bargain over a matter which already had been found negotiable by the Authority. While the Authority addressed the issue around which this matter should revolve, the issue of transit subsidies for Title 38 employees working for Respondent, it has little effect here since it was neither alleged nor shown that the violation in this case was a continuing violation. In this regard, it is clear that the refusal did not result in any change in conditions of employment of any employee in the bargaining unit. Department of Health and Human Services, supra. Moreover, the dismissal of a similar matter by this same Regional Office most certainly created a basis on which Respondent might believe its refusal to bargain was on solid ground. In fact, Respondent's responses at the time of the request to bargain in 1992 make sense in the total circum-stances and timing of the case.(4) Accordingly, it is found that there was no violation of the Statute based on Respondent's position on the matter in June 1992.

Finally, the General Counsel failed to address any reason why Respondent's refusal, even if based on the Washington Regional Director's dismissal of a matter involving the very same issue or why any other of Respondent's reasoning for not bargaining over the matter in 1992, was not a defense for its refusal to bargain, at the time the violation allegedly occurred. The failure to entertain those issues, leaves little question, in my opinion, that the General Counsel relied totally on its theory that Respondent failed to negotiate a proposal that had already been found negotiable by the Authority in the matter. If this is the case, the Complaint was premature and a hearing on the matter can not perfect that mistake by applying a theory to the case which was not possible prior the Authority's issuance of its negotiability decison.

Accordingly, the General Counsel's motion for summary judgment is denied since at the time of the alleged refusal to bargain no established precedent existed which was dispositive of the issue of negotiability of public transit subsidies. It is, therefore, recommended that the Authority adopt the following:

ORDER

It is hereby ordered that the Complaint in Case No. WA-CA-20795 be, and it hereby is, dismissed in its entirety.

Issued, Washington, DC, June 27, 1995

_____________________________

ELI NASH, JR.
Administrative Law Judge




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


Authority's Footnotes Follow:

1. The Respondent's opposition to the General Counsel's exceptions was untimely. Therefore, it has not been considered.

2. All dates are in 1992.

3. Pub. L. 101-509 expired by its own terms on December 31, 1993. It was subsequently replaced by Pub. L. 103-172, codified at 5 U.S.C. § 7905. Like its predecessor, Pub. L. 103-172 authorizes Federal agencies to participate in public transit subsidy programs. Therefore, these laws are referred to interchangeably.

4. The Union's proposal provided in pertinent part:

We agree that NFFE bargaining unit members who use public transportation will be reimbursed monthly by the VA to the maximum extent permitted by law. If the maximum is increased, the reimbursement will increase by an equal amount.

Joint Exhibit 2.

5. The complaint specifically alleges that "[o]n or about May 29, 1992, the Union proposed to negotiate with Respondent over a public transit subsidy for bargaining unit employees." General Counsel's Exhibit 1(b) at 2. It further alleges that "[o]n June 19, 1992, Respondent refused to negotiate, relying on Public Law 101-509." Id.

6. We note, in this regard, that the charge in this case alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing a public transit subsidy for unit employees in Los Angeles while refusing to bargain over the matter at the national level with the Union.


ALJ's Footnotes Follow:

1. At the hearing, the General Counsel renewed its motion for summary judgment.

2. Pub. L. 101-509 expired December 31, 1993. Pub. L. 103-172 contains the current statutory authorization for transit subsidy programs within federal agencies.

3.