United States, Department of Veterans Affairs, Washington Regional Office (Respondent) and American Federation of Government Employees, Local 25, AFL-CIO (Charging Party)
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58 FLRA No. 61
DEPARTMENT OF VETERANS AFFAIRS,
WASHINGTON REGIONAL OFFICE
OF GOVERNMENT EMPLOYEES,
LOCAL 25, AFL-CIO
DECISION AND ORDER
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.
Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the United States Department of Veterans Affairs, Washington Regional Office, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with the American Federation of Government Employees, Local 25, AFL-CIO, the exclusive representative of a unit of [ v58 p262 ] employees, over the terms and implementation of the Veterans Service Center Operations Policy.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Rescind the Veterans Service Center Operations Policy implemented on January 18, 2000, to the extent that it applies to employees represented by the American Federation of Government Employees, Local 25, AFL-CIO.
(b) Notify and upon request bargain with the American Federation of Government Employees, Local 25, AFL-CIO, ov