10:0675(114)CA - VA Medical Center, Northport, NY and NFFE Local 387, Independent -- 1982 FLRAdec CA

 10 FLRA No. 114
 
 VETERANS ADMINISTRATION MEDICAL CENTER,
 NORTHPORT, NEW YORK
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 387, INDEPENDENT
 Charging Party
 
                                            Case No. 2-CA-729
 
                            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:
 
    As stipulated by the parties, the issue before the Authority is
 whether Respondent's refusal on or about November 5, 1980, and at all
 times thereafter, to negotiate in good faith with the Charging Party on
 the scope of the negotiated grievance procedure, notwithstanding a
 determination by the Federal Labor Relations Authority in American
 Federation of Government Employees, Local 3669, AFL-CIO and Veterans
 Administration Medical Center, Minneapolis, Minnesota, 4 FLRA No. 53
 (1980), appeal docketed, No. 80-2081 (8th Cir. Nov. 20, 1980), /1/ that
 said subject is within the duty to bargain violated section 7116(a)(1)
 and (5) of the Federal Service Labor-Management Relations Statute (the
 Statute).  Although admitting such refusal, the Respondent contends that
 it did not violate the Statute since such refusal occurred during the
 pendency of a judicial appeal and a request for reconsideration of that
 decision.  The Authority finds such contention to be without merit.
 Thus, section 7123(c) of the Statute states in pertinent part that
 "(t)he filing of a petition under subsection (a) or (b) of this section
 shall not operate as a stay of the Authority's order unless the court
 specifically orders the stay." No stay has been ordered.  Furthermore,
 section 2429.17 of the Authority's Rules and Regulations, relied upon by
 the Respondent in its brief, provides that the filing of a motion for
 reconsideration with the Authority shall not operate as a stay of the
 order.  /2/
 
    The issue presented herein is substantially identical to that found
 in Department of the Air Force, U.S. Air Force Academy, 6 FLRA No. 100
 (1981), appeal docketed, No. 81-244 (10th cir. Nov. 3, 1981) in which
 the Authority found where the negotiability of a proposal is established
 by Authority precedent, it is a refusal to bargain in good faith in
 violation of section 7116(a)(5) of the Statute to maintain that the
 proposal is non negotiable.  For the reasons set forth in that case, the
 Authority finds that the Respondent has violated section 7116(a)(1) and
 (5) of the Statute by refusing to negotiate with regard to a proposal
 concerning the scope of the negotiated grievance procedure, a matter
 previously determined to be negotiable by the Authority.  See also,
 American Federation of Government Employees, Interdepartmental Local
 3723, AFL-CIO, 9 FLRA No. 93 (1982), appeal docketed, No. 82-2182 (D.C.
 Cir. 1982).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority hereby orders that the
 Veterans Administration Medical Center, Northport, New York, shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to negotiate with regard to a proposal concerning the
 scope of the negotiated grievance procedure, made in the course of
 negotiations by the National Federation of Federal Employees, Local 387,
 Independent, which involves a matter previously determined to be
 negotiable by the Federal Labor Relations Authority.
 
    (b) In any like or related matter 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 effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Upon request of the National Federation of Federal Employees,
 Local 387, Independent, negotiate, to the extent consonant with law and
 regulations, with respect to a proposal concerning the scope of the
 negotiated grievance procedure.
 
    (b) Post at the Veterans Administration Medical Center, Northport,
 New York facility, copies of the attached Notice on forms to be
 furnished by the Authority.  Upon receipt of such forms, they shall be
 signed by the Director of such facility, or his designee, and shall be
 posted and maintained by this official for 60 consecutive days
 thereafter, in conspicuous places, including all bulletin boards and
 other places where notices are customarily posted.  The Director shall
 take reasonable steps to insure that such Notices are not altered,
 defaced or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, Federal Labor
 Relations Authority, in writing within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., December 23, 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 negotiate with regard to a proposal concerning
 the scope of the negotiated grievance procedure, made in the course of
 negotiations by the National Federation of Federal Employees, Local 387,
 Independent, 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 any employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL upon request of the National Federation of Federal Employees,
 Local 387, Independent, negotiate, to the extent consonant with law and
 regulations, with respect to a proposal concerning the scope of the
 negotiated grievance procedure.
                                       (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 any question concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Region II, Federal Labor Relations Authority, whose
 address is:  Room 24-102, 26 Federal Plaza, New York, New York 10278 and
 whose telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In that case the Authority found negotiable proposals to expand
 the scope of the negotiated grievance procedure to include disciplinary
 and adverse actions taken against Veterans Administration Department of
 Medicine and Surgery employees hired under title 38 of the United States
 Code.
 
 
    /2/ The motion for reconsideration in that case was denied by the
 Authority on April 28, 1982.