10:0167(35)CA - VA, VA Regional Office (Buffalo, NY) and AFGE Local 3314 -- 1982 FLRAdec CA

 10 FLRA No. 35
 
 VETERANS ADMINISTRATION
 VETERANS ADMINISTRATION REGIONAL OFFICE
 (BUFFALO, NEW YORK)
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3314
 Charging Party
 
                                            Case No. 1-CA-824
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1 OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 STIPULATION OF FACTS AND THE PARTIES' CONTENTIONS, THE AUTHORITY FINDS:
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
 AND (5) OF THE STATUTE BY REFUSING TO BARGAIN WITH THE UNION CONCERNING
 THE UNION'S PROPOSAL THAT CERTAIN PROPOSED ACTIONS BASED ON
 UNSATISFACTORY EMPLOYEE PERFORMANCE BE STAYED PENDING ARBITRATION OF ANY
 RELATED GRIEVANCE, AND BY UNILATERALLY IMPLEMENTING A NEW PERFORMANCE
 APPRAISAL SYSTEM ON OR ABOUT OCTOBER 1, 1981 WITHOUT HAVING BARGAINED
 OVER THE UNION'S PROPOSAL.
 
    THE UNDISPUTED FACTS, AS ALLEGED IN THE COMPLAINT, ARE SUBSTANTIALLY
 IDENTICAL TO THOSE FOUND IN DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE
 ACADEMY, 6 FLRA NO.  100(1981), APPEAL DOCKETED, NO. 81-2244 (10TH CIR.
 NOV. 3, 1981).  FOR THE REASONS SET FORTH IN THAT CASE, THE AUTHORITY
 FINDS THAT THE RESPONDENT HEREIN, BY REFUSING TO BARGAIN REGARDING THE
 UNION'S PROPOSAL, HAS VIOLATED SECTION 7116(A)(1) AND (5) OF THE
 STATUTE.  /1/ FURTHER, THE AUTHORITY FINDS THAT RESPONDENT ALSO VIOLATED
 SECTION 7116(A)(1) AND (5), BY IMPLEMENTING THE NEW PERFORMANCE
 APPRAISAL SYSTEM WITHOUT BARGAINING WITH THE UNION OVER ITS PROPOSAL.
 CF. SOCIAL SECURITY ADMINISTRATION, 8 FLRA NO. 102(1982), APPEAL
 DOCKETED, NO. 82-1483 (4TH CIR. JUNE 4, 1982), WHEREIN A VIOLATION WAS
 FOUND BASED ON THE AGENCY'S REFUSAL TO BARGAIN REGARDING THE
 IMPLEMENTATION AND IMPACT OF THE CHANGES IN BASIC PERFORMANCE
 REQUIREMENTS FOR CERTAIN UNIT EMPLOYEES;  AND DEPARTMENT OF THE
 INTERIOR, U.S. GEOLOGICAL SURVEY, CONSERVATION DIVISION, GULF OF MEXICO
 REGION, METAIRIE, LOUISIANA, 9 FLRA NO. 65(1982), WHEREIN A VIOLATION
 WAS FOUND BASED ON THE AGENCY'S FAILURE TO GIVE NOTICE AND THE
 OPPORTUNITY TO REQUEST BARGAINING CONCERNING THE IMPACT OVER THE CHANGE
 IN PRACTICE OF PAYING OVERTIME TO ITS EMPLOYEES.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 AUTHORITY AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE VETERANS ADMINISTRATION, VETERANS ADMINISTRATION REGIONAL
 OFFICE (BUFFALO, NEW YORK) SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO BARGAIN REGARDING A PROPOSAL MADE IN THE COURSE OF
 NEGOTIATIONS BY THE
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3314,
 WHICH INVOLVES A MATTER
 
    PREVIOUSLY DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR RELATIONS
 AUTHORITY.
 
    (B) UNILATERALLY IMPLEMENTING A NEW EMPLOYEE PERFORMANCE APPRAISAL
 SYSTEM WITHOUT
 
    BARGAINING OVER A RELATED PROPOSAL BY THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 
    AFL-CIO, LOCAL 3314, WHICH INVOLVES A MATTER PREVIOUSLY DETERMINED TO
 BE NEGOTIABLE BY THE
 
    FEDERAL LABOR RELATIONS AUTHORITY.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3314,
 
    NEGOTIATE CONCERNING THE UNION'S PROPOSAL THAT FINAL ACTION TO
 TRANSFER, DEMOTE, OR REMOVE AN
 
    EMPLOYEE FOR UNSATISFACTORY PERFORMANCE WILL BE STAYED UNTIL ANY
 PENDING DECISION OF AN
 
    ARBITRATOR, RELATING TO THE ACTION IS RENDERED, AND WHICH ALSO
 REQUIRES THAT THE GRIEVANCE
 
    WHICH PROVIDED THE BASIS FOR THE ARBITRATION MUST HAVE BEEN FILED BY
 THE EMPLOYEE PRIOR TO THE
 
    30 DAYS ADVANCE WRITTEN NOTICE OF THE PROPOSED ACTION.
 
    (B) UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3314,
 
    GIVE ANY AGREEMENT REACHED IN THIS REGARD RETROACTIVE EFFECT, AND
 INCORPORATE IT INTO THE
 
    PREVIOUSLY IMPLEMENTED EMPLOYEE PERFORMANCE APPRAISAL SYSTEM.
 
    (C) POST AT THE FACILITIES OF THE VETERANS ADMINISTRATION, VETERANS
 ADMINISTRATION REGIONAL
 
    OFFICE (BUFFALO, NEW YORK), COPIES OF THE ATTACHED NOTICE ON FORMS TO
 BE FURNISHED BY THE
 
    FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY
 SHALL BE SIGNED BY THE
 
    DIRECTOR OF THE VETERANS ADMINISTRATION REGIONAL OFFICE (BUFFALO, NEW
 YORK), AND SHALL BE
 
    POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
 CONSPICUOUS PLACES, INCLUDING
 
    BULLETIN BOARDS AND ALL OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE
 
    DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
 NOT ALTERED, DEFACED, OR
 
    COVERED BY ANY OTHER MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND
 
    REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION I, FEDERAL LABOR
 RELATIONS AUTHORITY, 441
 
    STUART STREET, 9TH FLOOR, BOSTON, MASSACHUSETTS 02116, IN WRITING
 WITHIN 30 DAYS FROM THE DATE
 
    OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN BY COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
                                 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT REFUSE TO BARGAIN REGARDING A PROPOSAL MADE IN THE COURSE
 OF NEGOTIATIONS BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3314, WHICH INVOLVES A MATTER PREVIOUSLY DETERMINED TO BE
 NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    WE WILL NOT UNILATERALLY IMPLEMENT A NEW EMPLOYEE PERFORMANCE
 APPRAISAL SYSTEM WITHOUT BARGAINING OVER A RELATED PROPOSAL BY THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3314, WHICH
 INVOLVES A MATTER PREVIOUSLY DETERMINED TO BE NEGOTIABLE BY THE FEDERAL
 LABOR RELATIONS AUTHORITY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL, UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3314, NEGOTIATE TO THE EXTENT CONSONANT WITH
 LAW AND REGULATION CONCERNING THE UNION'S PROPOSAL THAT FINAL ACTION TO
 TRANSFER, DEMOTE, OR REMOVE AN EMPLOYEE FOR UNSATISFACTORY PERFORMANCE
 WILL BE STAYED UNTIL ANY PENDING DECISION OF AN ARBITRATOR, RELATING TO
 THE ACTION, IS RENDERED, AND WHICH ALSO REQUIRES THAT THE GRIEVANCE
 WHICH PROVIDED THE BASIS FOR THE ARBITRATION MUST HAVE BEEN FILED BY THE
 EMPLOYEE PRIOR TO THE 30 DAYS ADVANCE WRITTEN NOTICE OF THE PROPOSED
 ACTION.
 
    WE WILL, UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3314, GIVE ANY AGREEMENT REACHED IN THIS
 REGARD RETROACTIVE EFFECT AND INCORPORATE IT INTO THE PREVIOUSLY
 IMPLEMENTED EMPLOYEE PERFORMANCE APPRAISAL SYSTEM.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:  . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH
 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, REGION I, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS
 441 STUART STREET, 9TH FLOOR, BOSTON, MASSACHUSETTS 02116 AND WHOSE
 TELEPHONE NUMBER IS (617) 223-0920.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SIMILAR "STAY" PROPOSALS PREVIOUSLY HAVE BEEN DETERMINED TO BE
 NEGOTIABLE BY THE AUTHORITY.  SEE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE,
 DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA NO. 152(1980),
 ENFORCED SUB NOM DEPARTMENT OF DEFENSE, (DIX-MCGUIRE EXCHANGE) V.
 FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981);
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 547, AFL-CIO AND
 VETERANS ADMINISTRATION MEDICAL CENTER, TAMPA, FLORIDA, 4 FLRA NO.
 50(1980), ENFORCED SUB NOM VETERANS ADMINISTRATION MEDICAL CENTER,
 TAMPA, FLORIDA V. FEDERAL LABOR RELATIONS AUTHORITY, 675 F.2D 260 (11TH
 CIR. 1982).