DEPARTMENT OF VETERANS AFFAIRS CARL VINSON MEDICAL CENTER DUBLIN, GEORGIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1985
DEPARTMENT OF VETERANS AFFAIRS
CARL VINSON MEDICAL CENTER
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1985
Case No. AT-CA-00554
William M. Thigpen, Esquire Ellen M. Hastings, Esquire For the Respondent
Before: RICHARD A. PEARSON Administrative Law Judge
OnSeptember 28, 2000, the Acting Regional Director of the Atlanta Region of the Federal Labor Relations Authority (FLRA), issued a Complaint and Notice of Hearing alleging that the Department of Veterans Affairs, Carl Vinson Medical Center, Dublin, Georgia (the Respondent), violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), by repudiating a portion of the collective bargaining agreement (CBA), between the Respondent and the American Federation of Government Employees, Local 1985 (the Union). A hearing was scheduled for January 30, 2001.
On October 20, 2000, Counsel for the Respondent filed an
Answer to the Complaint in which the Respondent admitted all but
one of the factual allegations and all of the legal allegations of
the Complaint, including the allegations that it had repudiated a
portion of the CBA and had thereby violated section 7116(a)(1) and
(5) of the Statute.
Thereafter, on January 17, 2001, Counsel for the General
Counsel filed a Motion for Summary Judgment based on the
Respondent's admission of all material allegations of the
Complaint. Counsel for the Respondent responded to the Motion for
Summary Judgment on February 1, 2001, and stated that the
Respondent "will not be opposing the General Counsel's Motion for
By Order of the Chief Administrative Law Judge, the hearing
was indefinitely postponed. In accordance with the evidence and
pleadings in this case, I make the following findings of fact,
conclusions of law, and recommendations.
The American Federation of Government Employees (AFGE), is
the exclusive representative of a bargaining unit at the Department
of Veterans Affairs and AFGE Local 1985 (the Union) is an agent of
AFGE for purposes of representing employees at the Respondent's
Carl Vinson Medical Center in Dublin, Georgia.
The Respondent and AFGE are parties to a collective
bargaining agreement which covers employees at the Dublin facility,
Article 21, paragraph 10 of the CBA states, in pertinent
Section 2(B). The Department will inform the local union in advance of a formal administrative
investigation when a bargaining unit employee is the subject
of the investigation or inquiry.
Section 2(K). The participation of bargaining unit employees on an administrative investigating
board will be with the consultation of the Union.
On or about February 16, 2000, the Respondent convened an
Administrative Investigation Board to investigate allegations of
misconduct against Stifanos Almedom, a bargaining unit employee.
The Respondent appointed one management official (Gail Haley) and
two bargaining unit employees (Don Farris and (Lillian Werner) to
the investigation board.
The Respondent did not notify the Union that it was
investigating Mr. Almedom, and it did not consult with the Union
before appointing Mr. Farris and Ms. Werner to the investigation
Discussion and Conclusions
In the Complaint, the General Counsel alleges that
Respondent's failure to notify the Union of the Almedom
investigation and to consult with the Union concerning the
appointments of Mr. Farris and Ms. Werner to the board constituted
a repudiation of Article 21 of the parties CBA.
The Authority has long held that when an agency's
interpretation of a provision of its collective bargaining
agreement is arguably within the terms of the agreement, disputes
over the interpretation should be resolved through the parties'
grievance and arbitration process, rather than as an unfair labor
practice. On the other hand, when an agency's interpretation of the
negotiated agreement is such that it results in a "clear and patent
breach of the terms of the agreement," an unfair labor practice has
been committed. See, e.g., Iowa National Guard and
National Guard Bureau, 8 FLRA 500, 510-11 (1982). As clarified
by the Authority in Department of Defense, Warner Robins Air
Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211
(1991), and Department of the Air Force, 375th
Mission Support Squadron, Scott Air Force Base, Illinois, 51
FLRA 858 (1996), this policy requires an examination of both the
nature and scope of the alleged breach of the CBA and the nature of
the contract provision allegedly breached. If the agency's
interpretation of the contract is reasonable, or if the contract
provision does not go to the heart of the CBA, then the agency has
not committed an unfair labor practice.
In the current case, the Respondent has not raised any
defenses to its alleged breach of Article 21 of the CBA, nor has it
articulated any reasonable interpretation of the CBA as a basis for
its failure to advise the Union of the Almedom investigation or to
consult with the Union concerning the appointment of two bargaining
unit employees to the investigative board. While the Respondent
denied in its Answer that Ms. Werner was a member of the Union, it
did not dispute the fact that both Ms. Werner and Mr. Farris were
bargaining unit employees, and the language of Article 21, Section
2(K) of the CBA clearly requires consultation with the Union
concerning the participation of "bargaining unit employees" on an
administrative investigating board. Thus, the facts demonstrate a
clear and patent breach of the CBA by the Respondent.
Although the determination of whether a contract breach
"goes to the heart of the parties' collective bargaining agreement"
may vary, depending on the facts of each case and the context of a
contractual provision within the agreement as a whole, the
Respondent here has admitted that its conduct "repudiated the
agreement" and that it violated section 7116(a)(1) and (5) of the
Statute. I therefore conclude that the General Counsel has met its
burden of proof that Respondent's failure to notify the Union of
the investigation or to consult with the Union concerning the
appointment of bargaining unit employees to the investigative board
repudiated the CBA and thereby violated section 7116(a)(1) and (5)
of the Statute.
Based on the above findings and conclusions, I recommend
that the Authority grant the General Counsel's Motion for Summary
Judgment, and issue the following Order:
Pursuant to section 2423.41(c) of the Authority's Rules and
Regulations and section 7118 of the Federal Service
Labor-Management Relations Statute, it is hereby ordered that the
Department of Veterans Affairs, Carl Vinson Medical Center, Dublin,
1. Cease and desist from:
(a) Convening Administrative Investigation Boards
when a bargaining unit employee is the subject of the investigation
or inquiry, without first notifying the local union, pursuant to
the parties' collective bargaining agreement.
(b) Appointing bargaining unit employees as members of an Administrative Investigation Board without first consulting with the l