U.S. DEPARTMENT OF VETERANS AFFAIRS VETERANS AFFAIRS MEDICAL CENTER COATESVILLE, PENNSYLVANIA and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R3-35, SEIU, AFL-CIO
Office of Administrative Law Judges
U.S. DEPARTMENT OF VETERANS AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
Case No. BN-CA-90612
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R3-35, SEIU, AFL-CIO
Edward J. Smith, Esquire For the Charging Party
Richard D. Zaiger, Esquire Alfred Gordon, Esquire For the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
Statement of the Case
The unfair labor practice complaint alleges that Respondent
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute), 5 U.S.C. §
7116(a)(1) and (5), by refusing to meet with and engage in
face-to-face negotiations with the Charging Party (Union) over the
Respondent's proposal to reorganize the Facilities Engineering
Service, and by implementing this change without providing the
Union an opportunity to negotiate to the extent required by the
Statute, and while negotiable proposals were still on the
Respondent's answer admitted the jurisdictional allegations
as to the Respondent, the Union, and the charge, but denied any
violation of the Statute.
For the reasons explained below, I conclude that the
Respondent violated the Statute as alleged.
A hearing was held in Philadelphia,
Pennsylvania.(1) The Respondent,
Union, and the General Counsel were represented by Counsel and
afforded a full opportunity to be heard, adduce relevant evidence,
examine and cross-examine witnesses, and file post-hearing briefs.
The Respondent and General Counsel filed helpful
briefs.(2) Based on the entire
record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of
law, and recommendations.
Findings of Fact
The National Association of Government Employees, SEIU,
AFL-CIO (NAGE) is the certified exclusive representative of a
nationwide consolidated unit of employees appropriate for
collective bargaining at the Department of Veterans Affairs. The
Union is an agent of NAGE for purposes of representing bargaining
unit employees at the Respondent's Medical Center in Coatesville,
Pennsylvania. The Union represents approximately 900 employees.
Mark D. Bailey, Sr., serves as the President of the Union, a
position he has held for 12 years. However, Mr. Bailey has been
removed from service as an employee of the Respondent and has had
his access to Respondent's facility severely limited. Because of
these limitations, the parties have arranged on previous occasions
to hold negotiations at the Coatesville Memorial Community Center
at 9th and Chestnut Streets in Coatesville, Pennsylvania.
NAGE and the Department of Veterans Affairs entered into a
Master Agreement (contract) on April 28, 1992. (Jt. Exh. 1) Bailey
was on NAGE's national negotiating team for the Master Agreement
and is a signatory to that contract. Article 11, Section 2, of the
parties Master Agreement concerns procedures for bargaining and
contains the following language:
A. The Employer shall notify the Union prior to the planned implementation of a proposed change to
conditions of employment. The notice shall advise the Union of the reason for the change and the
proposed effective date.
B. The Union shall have fifteen (15) calendar days from the date of notification to request bargaining
and to forward written proposals to the Employer except in emergency situations where a 15 day
notice would not be practicable.
C. If the Union does not request bargaining within the time limit, the Employer may implement the
D. Upon timely request by the Union, bargaining will normally commence within ten (10) calendar
days, unless otherwise agreed upon by the
(Jt. Exh. 1 at 8-9). Other than stating that "bargaining will
normally commence within ten (10) calendar days," the contract does
not set any parameters with regard to procedures and timeliness for
bargaining, and it is silent on the issue of the parties submitting
additional proposals once bargaining has commenced.
Reorganization of the Facilities Engineering
On January 20, 1999, the Respondent, through Stephen
Blanchard, Chief of Facilities Engineering Service, notified the
Union that it planned to implement changes to the organizational
structure of the Facilities Engineering Service effective February
20, 1999 and invited the Union to submit proposals over "procedures
and adverse impact (I&I) issues" in accordance with Article 11
of the contract. (Jt. Exh. 3).
The Union responded with ground rules proposals and
bargaining proposals dated January 31, 1999. (Jt. Exh. 4 & 5).
The Union proposed in each document that the parties agree to an
off-site meeting place with appropriate facilities for the
negotiations due to management's decision to bar the Union
President from the facility. (Jt. Exh. 4 at 2.IV; Jt. Exh. 5 at
3.C). In addition, in its bargaining proposals, the Union stated
that it reserved the right to submit new proposals during the
course of the negotiations as new or additional information
regarding the reorganization came to light. (Jt. Exh. 5 at
On February 9, 1999, the Respondent, through Blanchard, responded in writing to the Union's bargaining proposals by agreeing to some of the Union's proposals, in whole or in part, and declaring the rest nonnegotiable. Blanchard further stated that, in view of this action, responses to the proposals concerning ground rules and a suitable meeting place for negotiations were "not required at this time." Blanchard also stated that the proposal concerning the Union's right to submit new proposals during the negotiations was addressed in Article 11 of the agreement and it was "not necessary to bargain over this proposal." (Jt. Exh. 6 at 2).
On February 21, the Union requested a written allegation of
nonnegotiability for the proposals Blanchard declared to be
nonnegotiable. (Jt. Exh. 7). The Respondent responded by sending
the Union another copy of its February 9 memorandum. (Jt. Exh.
The Union responded by memorandum dated March 2, captioned
"Counter proposals/Reorganization, Engineering Service." In this
memorandum, the Union withdrew one proposal and submitted several
counter proposals and two new proposals. (Jt. Exh. 9). The Union
submitted counter proposals for Proposals 5, 13, 16, 18, 19, and
25; and submitted new proposals to replace Proposals 9 and 15. (Jt.
Exh. 5 & 9). The Union specifically requested "to meet per the
[S]tatute to resolve any and all issues" (Jt. Exh. 9 at 2.j) and
asked for a list of dates and times when the Respondent would be
able to meet at the Coatesville Community Center "to properly
negotiate our I&I proposals." (Jt. Exh. 9 at 2.k).
On March 8, 1999, the Respondent, through George R. Pearson,
Chief of Human Resources Management Service, responded by agreeing
to one counter proposal as written, refusing to negotiate over
certain proposals the Respondent considered to be new proposals,
and declaring the rest nonnegotiable. (Jt. Exh. 10). Pearson
declared that the Union's request to meet was a new proposal that
management did not have to bargain over (Jt. Exh. 10 at 2.j) and
stated that "[t]here is no need to meet or negotiate I&I
proposals" (Jt. Exh. 10 at 2.k). Pearson's letter went on to
This concludes management's requirement to accept and negotiate proposals regarding the
reorganization of Engineering Service. Management is in the process of reorganizing the
process effective this date. (Jt. Exh. 10).
On March 12, 1999, the Union submitted another memorandum
stating why it believed its March 2, 1999, counter proposals were
negotiable, slightly modifying one proposal, and asking for
clarification of the Respondent's position with regard to several
issues. (G.C. Exh. 3). The Respondent never responded.
The Respondent reorganized its Facilities Engineering Service as of March 28, 1999. (G.C. Exh. 4). This reorganization effected a reduction in the number of shops and a realignment of employees under supervisors some of whom work in different trade areas than the employees they supervise. The reorganization impacted bargaining unit employees in a number of ways, from issues regarding fair and equitable assignment of work; to adequate direction and supervision, workplace safety, and effects on employee ratings and performance appraisals.
Discussion and Conclusions
Respondent Violated Section 7116(a)( 1) and (5) of the
Statute by Failing to Negotiate in Good Faith over the
Reorganization of the Facilities Engineering Service, and by
Unilaterally Implementing the Reorganization While Negotiable
Proposals Were Still on the Bargaining Table
Determining the organization of an Agency is a management right under section 7106(a)(1) of the Statute. "An agency does not have an obligation to bargain over such decisions, but it does have an obligation to bargain over the procedures and appropriate arrangements that it will observe in exercising its right . . . ." U.S. Department of Transportation, Federal Aviation Administration, Washington, DC and Michigan Airway Facilities Sector, Belleville, Michigan, 44 FLRA 482, 493 (1992). In determining whether an agency has an obligation to provide notice and an opportunity to bargain when it exercises a management right, the Authority considers whether the Respondent changed the conditions of employment, and if so, whether those changes had more than a de minimis impact on employees' conditions of employment. Id. at 492-93; Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986). In assessing whether the effect of a decision is more than de minimis, the Authority looks to the foreseeable effect, or the reasonably foreseeable effect, of the change on bargaining unit employees' conditions of employment.Id. at 407-08.
Here, the evidence establishes that the Respondent changed
working conditions when, on March 28, 1999 it reorganized the
Facilities Engineering Service. When the number of shops was
reduced, employees were reassigned to different shops and started
reporting to supervisors with different trade specialties. The
effects of this change were clearly foreseeable, as the Union was
able to define and address them in proposals it submitted prior to
the reorganization. (Jt. Exh. 5). For example, prior to
implementation, the Union expressed concerns over the fair and
equitable assignment of work and over the impact of the new
supervisory structure on employee ratings and performance
Because the reorganization of the Facilities Engineering
Service caused foreseeable changes in working conditions that were
more than de minimis, Respondent was obligated to provide
the Union with notice and an opportunity to negotiate over the
change prior to implementation.
Respondent's Failure to Respond to the Union's
Ground Rules Proposals and Failure to Meet Face-to-Face to
Negotiate Over the Reorganization of the Facilities Engineering
Service Amount to Bad-Faith Bargaining in Violation of Section
7116(a)(1) and (5) of the Statute
1. Respondent bargained in bad faith in violation of section 7116(a)(1) and (5) of the Statute when it
ignored the Union's ground rules proposals
The Authority has held that an agency violates section
7116(a)(1) and (5) of the Statute when it fails to respond to a
union's legitimate demand to bargain ground rules. Army and Air
Force Exchange Service, McClellan Base Exchange, McClellan Air
Force Base, California, 35 FLRA 764, 768-69 (1990)
(McClellan AFB); see also Environmental Protection Agency,
16 FLRA 602 (1984)(EPA). This is particularly true where the
parties disagree about the method or place of bargaining and where
a party reiterates its demand to address the method or place of
negotiation. McClellan AFB, 35 FLRA at 769.
Here, the Union submitted comprehensive ground rules proposals covering everything from the number and authority of negotiators, to the place and manner of negotiation meetings. In its ground rules document, the Union specifically requested face-to-face negotiations, and the Union reiterated that proposal in its bargaining proposals. The Union further proposed that it retain the right to offer additional proposals throughout the bargaining process, which was "in the nature of a proposed ground rule itself, i.e., a guide for the conduct of the negotiations." EPA, 16 FLRA at 613.
The Respondent ignored the Union's ground rules proposals
entirely. In addition, the Respondent short-circuited the Union's
attempts to meet face-to-face. Such a face-to-face negotiation
session might possibly have allowed the parties to move beyond
their negotiability concerns to address the underlying negotiable
interests expressed through the Union's proposals. The parties'
apparent continuing disagreement over their right to submit
additional proposals throughout the bargaining process could also
conceivably have been resolved through appropriate ground rules
negotiations. The Respondent claims that the Union's ground rules
did not include dates to commence bargaining. This, too, could have
been resolved at the time by the Respondent's response or by
appropriate counter proposals. The Union's substantive Proposal
25.B, which the Respondent failed to address, also covered the
matter in providing, in part, "[u]pon one (1) week of receipt of
Ground Rules . . . both parties meet to negotiate such Ground
Rules." (Jt. Exh. 5 at 3).
There is no indication that the Union sought, by its ground
rules proposals, "'to delay, or avoid, the bargaining process.'"
U.S. Department of the Air Force, Headquarters, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 36
FLRA 912, 917 (1990)(quoting U.S. Department of the Air Force,
Headquarters, Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 36 FLRA 524, 533 (1990)). Accordingly, by its
failure to respond to the Union's ground rules document, and by its
wholesale refusal to discuss the Union's proposals dealing with the
conduct of the negotiations, the Respondent has bargained in bad
faith in violation section 7116(a)(1) and (5) of the Statute.
2. Respondent bargained in bad faith in violation
of section 7116(a)(1) and (5) of the Statute by
refusing to meet face-to-face to negotiate as
the Union requested
Section 7103(a)(12) of the Statute defines "collective
the performance of the mutual obligation of the
representative of an agency and the exclusive
representative of employees in an appropriate unit in
the agency to meet at reasonable times and to consult
and bargain in a good-faith effort to reach agreement
with respect to the conditions of employment . . . .
This concept is further defined in section 7114(b)(3), which
obligates the parties, in carrying out their duty to negotiate, "to
meet at reasonable times and convenient places as frequently as may
In McClellan AFB, 35 FLRA at 769, the Authority found
it unnecessary to decide "whether face-to-face bargaining is
required under the meaning of section 7114(b)(3) of the
Statute."(3) In the absence of
Authority precedent, "[a]ttention may properly be given . . . to
interpretations of the same language as found in the National Labor
Relations Act (NLRA), section 8(d), 29 U.S.C. § 158(d)." Id.
at 778. To that end, the National Labor Relations Board has
construed section 8(d) to require face-to-face negotiations. The
Westgate Corp., 196 NLRB 306, 313 (1972); see also Twin City
Concrete, Inc., 317 NLRB 1313, 1313-14 (1995); Alle Arecibo
Corp., 264 NLRB 1267, 1273 (1982).
Here, the evidence establishes that the Union requested
several times to meet face-to-face to negotiate and that the
Respondent flatly refused each time. The Union made such a request
in paragraph IV of its ground rules document and in paragraph C of
its original bargaining proposals. As shown above, the Respondent
ignored the ground rules document entirely, and it declared that no
response was required to paragraph C of the bargaining proposals.
The Union reiterated its request in paragraphs 2.j and 2.k of its
first set of counter proposals, to which the Respondent declared:
"There is no need to meet or negotiate I&I proposals." (Jt.
Exh. 10 at 2.k). Finally, the Union asked the Respondent for formal
clarification as to whether it was "refusing to bargain per . . .
the Statute" (G.C. Exh. 3 at 2.k), but the Respondent never
By its refusal to meet face-to-face to negotiate the
appropriate arrangements and procedures involved in the
reorganization of the Facilities Engineering Service, the
Respondent has failed to perform its duty to negotiate as defined
in section 7114(b)(3) of the Statute, and has therefore, bargained
in bad faith in violation of section 7116(a)(1) and (5).
3. Respondent violated section 7116(a)(1) and (5) of
the Statute by unilaterally implementing the
reorganization of the facilities engineering
service while there were negotiable proposals on
the bargaining table
"It is long established [under the Statute] that an agency
'must meet its obligation to negotiate prior to making changes in
established conditions of employment[.]'" U.S. Department of
Justice, Immigration and Naturalization Service, Washington,
DC, 56 FLRA 351, 356 (2000)(INS)(quoting Department of the
Air Force, Scott Air Force Base, Illinois, 5 FLRA 9, 11
(1981)). It is equally well settled that "[w]here a union submits
bargaining proposals and an agency refuses to bargain over them
based on the contention that they are nonnegotiable, . . . the
agency acts at its peril if it then implements the proposed change
in conditions of employment." U.S. Department of Health and
Human Services, Social Security Administration, Baltimore,
Maryland, 39 FLRA 258, 262-63 (1991)(SSA). If it is
determined that there are negotiable proposals on the table, "the
agency will be found to have violated section 7116(a)(1) and (5) of
the Statute by implementing the change without bargaining over the
negotiable proposal[s]." Id. at 263.
The Respondent contends that all the proposals received in
the Union's March 2, 1999, counter proposals letter are "new"
proposals and thus, nonnegotiable. However, the Respondent's Chief
of Human Resources Management admitted that some of the proposals
in that letter were indeed counter proposals. (Tr. 81-83).
Nevertheless, even if some of the March 2, counter proposals were
in fact new proposals, that does not mean those new proposals are
nonnegotiable. The parties' contract is silent as to the parties'
ability to present new proposals throughout the bargaining process.
In addition, as explained above, the Respondent refused to
negotiate over the Union's ground rules proposal that it be allowed
to submit new proposals during the bargaining process. Those new
proposals were, therefore, on the table in accordance with the
contract and with the Union's stated intention to reserve its right
to present them.
The Union submitted its last communication on March 12,
1999. The Respondent failed to respond and implemented the
reorganization on March 28, 1999. As the Authority stated in
INS, 56 FLRA at 357:
The bargaining process requires on-going communication,
so that the parties may avail themselves of appropriate
options [revised proposals, a request for assistance from
FMCS or FSIP, a negotiability appeal, or a preimplementa-
tion ULP charge, if necessary], ultimately leading to
Proposal 5 is a Negotiable Appropriate
Proposal 5 states:
All employees who are requested to work out of the
trade area will be properly trained. . . . Employee's
Position Description[s] will reflect all duties and
responsibilities prior to having employee work out of
(Jt. Exh. 9). The Respondent admitted that this proposal is a
counter proposal (Tr. 82), so there is no issue as to whether it
was properly on the bargaining table. As to the negotiability of
the proposal, in a nearly identical situation, the Authority has
found that proposals requiring adequate training where a
reorganization required employees to be assigned new tasks was
negotiable as an appropriate arrangement. American Federation of
Government Employees, Local 3231 and Social Security
Administration, 22 FLRA 868, 872-74 (1986). In addition, "[t]he
Authority has consistently held that a position description does
not constitute an assignment of duties but merely reflects the
duties which have been assigned to a position or an employee."
National Federation of Federal Employees, Local 1497, 9 FLRA
151, 152 (1982)(NFFE); see also Patent Office
Professional Associationand U.S. Department of Commerce, Patent and
Trademark Office, Washington, DC, 47 FLRA 10, 28-29
(1993)(POPA). The Union's proposal did not seek to interfere
with the assignment of work, but rather sought to ensure that the
assigned work was adequately reflected in the employees' position
descriptions. Therefore, Proposal 5 is negotiable and was properly
on the bargaining table when the Respondent implemented the
Proposal 9 is a Negotiable Appropriate
Proposal 9 states:
All Shop areas will have break rooms, computer access,
men's & women's bathrooms, men's & [sic] shower areas,
locker facilities, telephones, coffeepots and
(Jt. Exh. 9). Though this proposal did not appear as part of the
Union's original proposal package, as discussed above, the Union
reserved its right to submit proposals during the bargaining
process, and the Respondent refused to bargain over this ground
rule. In addition, the parties' contract is silent on the matter.
Therefore, Proposal 9 was properly on the bargaining table when the
Respondent implemented the reorganization.
As to the proposal itself, the Authority has consistently
held that amenities such as break rooms are negotiable conditions
of employment. See, e.g., National Association of Government
Employees, Local R1-144 and U.S. Department of the Navy, Naval
Underwater Systems Center, Newport, Rhode Island, 43 FLRA 1331,
1345-46 (1992); Department of the Treasury, Internal Revenue
Service, (Washington, DC) and Internal Revenue Service, Hartford
District, (Hartford, Connecticut), 27 FLRA 322, 325 (1987);
American Federation of Government Employees, Social Security
Local 3231, AFL-CIO and Department of Health and Human
Services, Human Services, Social Security Administration, 16
FLRA 47, 48-49 (1984)(finding negotiable a proposal requiring the
employer to provide a refrigerator, stove and/or microwave oven,
utensils, phone, coffee maker or dispensing machine, sink and/or
dishwasher). Inasmuch as reassigning employees to different shops
would adversely affect their conditions of employment vis à
vis these amenities, the Union's proposal is negotiable as an
Proposal 13 is a Negotiable Appropriate
Proposal 13 states:
All employees under the same trade Position Description
rotate job assignments in a fair & equitable manner with
appropriate records being kept (recording of job
(Jt. Exh. 9). The Respondent's Chief of Human Resources
Management admitted that this proposal is a valid counter proposal,
so there is no issue as to whether it was properly on the
bargaining table. "It is well established that proposals which
accomplish a distribution 'fairly and equitably' are negotiable."
Illinois Nurses' Association and Veterans Affairs Medical
Center, Illinois, 28 FLRA 212, 229 (1987)(Illinois Nurses'
Association). These proposals are negotiable procedures that
"ensure fairness and equity in the assignment of duties" and do not
interfere with management's right to assign such duties. Id.
at 229; see also American Federation of Government Employees,
AFL-CIO, General Committee of AFGE for SSA Locals and Social
Security Administration, 23 FLRA 329 (1986)(Proposal 4 &
7)(AFGE General Committee); American Federation of
Government Employees, AFL-CIO, Local 32, 3 FLRA 784, 792-94
(1980). In this case, such a proposal also amounts to a negotiable
appropriate arrangement for employees adversely affected by
management exercising its right to organize employees by criteria
other than trade.
Proposal 16 is a Negotiable Appropriate
Proposal 16 states:
All employees who are required to clean-up service rooms
or shop areas will not have this time held against their
performance standards and that these responsibilities be
rotated in a fair & equitable manner among all shop
(Jt. Exh. 9). This counterproposal is clearly related to the
original Proposal 16, and the Respondent did not contend that it
was a new proposal and thus nonnegotiable. It was therefore
properly on the bargaining table when the Respondent unilaterally
implemented the reorganization.
The second part of this proposal is negotiable for the same
reasons as Proposal 13, in that it requires a fair and equitable
assignment of work. The first part of the proposal - that time
spent cleaning up service rooms not be held against an employee's
performance standards - is negotiable because it "deals with
consequences arising from the nature of the work assigned." AFGE
General Committee, 23 FLRA at 337 (Proposal 7). In AFGE
General Committee, the Union proposed that employees who deal
primarily with non-English speaking claimants not be disadvantaged
by their less frequent ability to be evaluated using the Agency's
telephone monitoring techniques. The Authority found that proposal
bargainable as an "appropriate arrangement for employees adversely
affected by management's exercise of a reserved right." Id.
at 338. Similarly, in the instant case, employees who are assigned
to clean up service rooms would have less time to perform the work
on which their ratings are based. The Union's proposal is therefore
an appropriate arrangement protecting employees from the possible
negative effects of their taking time to perform assigned duties
for which they will not be rated.
Proposal 19 is a Negotiable Appropriate
Proposal 19 states:
All employees' Position Descriptions will reflect their
job responsibilities and assignments and those job
assignments be provided in a fair & equitable manner.
(Jt. Exh. 9). Though this proposal is related to the Union's
original Proposal 19, and the Respondent does not contend that it
is a new proposal. The first part of the proposal - requiring
accurate position descriptions - directly mirrors Proposal 5 and is
thus negotiable for the reasons stated above. See NFFE, 9
FLRA at 152; POPA, 47 FLRA at 28-29. The second part of the
proposal - requiring fair and equitable assignment of work - is
identical to Proposal 13 and is thus, negotiable as described
above. See Illinois Nurses' Association, 28 FLRA at 229.
As the record establishes that there were negotiable
proposals on the bargaining table when the Respondent implemented
the reorganization of the Facilities Engineering
Service(5), the Respondent violated
section 7116(a)(1) and (5) of the Statute by implementing the
reorganization without completing the negotiation process.
SSA, 39 FLRA at 262-63.
When an Agency, in the exercise of a management right, changes a condition of employment without fulfilling its obligation to bargain over the appropriate arrangements for affected employees and the procedures management will use to exercise its right, the Authority assesses the appropriateness of a status quo ante remedy using the criteria set forth in Federal Correctional Institution, 8 FLRA 604 (1982)(FCI). The FCI factors involve balancing the nature and circumstances of the violation against the degree of the disruption in government operations that would be caused by a status quo ante remedy. Id. at 606. Accordingly, in determining whether a status quo ante remedy would be appropriate in cases such as this, the Authority considers, among other things:
(1) whether, and when, notice was given to the union by the agency concerning the action or change decided upon; (2) whether, and when, the union requested bargaining on the procedures to be observed by the agency in implementing such action or change and/or concerning appropriate arrangements for employees adversely affected by such action or change; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. FCI, 8 FLRAat 606.
In the instant case, the Union responded to the Respondent's
proposed change within the specified contractual time limits, yet
the Respondent ignored its bargaining obligations by failing to
respond at all to the Union's ground rules proposals and by either
severely limiting the bargaining process or failing to engage in
bargaining at all. The Respondent refused to meet as requested and
then unilaterally declared the negotiations to be over.
The Authority requires that any conclusion that a status quo ante remedy would be disruptive to the operations of an agency be "based on record evidence." Army and Air Force Exchange Service, Waco Distribution Center, Waco, Texas, 53 FLRA 749, 763 (1997). In the absence of such record evidence, "the Authority 'should' restore the status quo." U.S. Department of Justice, Immigration and Naturalization Service, 55 FLRA 892, 906 (1999)(quoting National Treasury Employees Union v. FLRA, 910 F.2d 964, 969 (D.C. Cir. 1990)). The Respondent has offered no evidence of any disruption that a status quo ante remedy would cause. The FCI factors overwhelmingly favor a status quo ante remedy in this case.
Based on the above findings and conclusions, it is
recommended that the Authority 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
U.S. Department of Veterans Affairs, Veterans Affairs Medical
Center, Coatesville, Pennsylvania, shall: