United States, Department of Veterans Affairs, Washington Regional Office (Respondent) and American Federation of Government Employees, Local 25, AFL-CIO (Charging Party)

[ v58 p261 ]

58 FLRA No. 61



(Charging Party)




December 23, 2002


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

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 (Judge) filed by the Respondent. The General Counsel filed an opposition to the exceptions.

      The Judge concluded that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing an operations policy without completing bargaining.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order. In so doing, we reject the Respondent's claim that its "sincere resolve" to reach an agreement during bargaining demonstrates that it fulfilled its duty to bargain in good faith under the Statute. Although parties must approach negotiations with a "sincere resolve" to reach an agreement, see § 7114(b)(1), an agency, nevertheless, violates the Statute by changing conditions of employment without completing bargaining. [n1]  See, e.g., Army and Air Force Exchange Serv., 52 FLRA 290 (1996). Here, the Judge found -- and the record demonstrates -- that the Respondent implemented the disputed policy without completing bargaining. [n2] 

      We also reject the Respondent's argument that the Judge erred in finding a violation of § 7116(a)(1) of the Statute. A violation of § 7116(a)(1) is commonly found as a "derivative violation," that is, an interference with employee rights that flows from another violation under the Statute. See, e.g., United States Dep't of Defense, Dep't of the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin Air Force Base, Tex., 18 FLRA 142, 167 (1985). It is well established that an agency commits a derivative violation of § 7116(a)(1) by violating § 7116(a)(5). See Dep't of the Air Force, Scott Air Force Base, Ill., 5 FLRA 9, 23 (1981). Thus, the Judge's finding that the Respondent violated § 7116(a)(1) of the Statute properly follows from his finding a violation of § 7116(a)(5).

      Finally, we reject the Respondent's claim that the Judge erred in finding a violation because, assuming that the Charging Party objected to the disputed policy, the objection was not made to the appropriate representative of the Respondent. In this regard, even if the objection was made to the wrong representative, the Respondent has not demonstrated the relevance of that fact to the issue of whether the parties reached an agreement. In fact, any objection by the Charging Party supports the Judge's conclusion that the parties did not reach a meeting of the minds.

II.     Order

      Pursuant to § 2423.41(c) of the Au