Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina (Respondent) and National Association of Government Employees, Local R5-150, SEIU, AFL-CIO (Charging Parties/Unions)
[ v57 p495 ]
57 FLRA No. 91
DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-136, SEIU, AFL-CIO
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-150, SEIU, AFL-CIO
DECISION AND ORDER
September 26, 2001
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members. [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the Judge's decision filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.
The consolidated complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to recognize and refusing to deal with a National Association of Government Employees (NAGE) National Representative, as the designated representative of NAGE Locals R5-136 and R5-150 (Unions). The complaint also alleges that the Respondent's failure to recognize the National Representative as the Unions' representative constituted an independent violation of § 7116(a)(1) of the Statute. For the reasons stated below, we deny the exceptions and adopt the Judge's findings and affirm the Judge's determination that the Respondent committed an unfair labor practice.
II. Background and Judge's Decision
As more fully described in the attached Decision of the Administrative Law Judge, the facts show that NAGE is the certified exclusive representative of a nationwide consolidated unit that includes employees at the Respondent's facility. One of the two unions involved in this case, Local R5-150, represents the Respondent's registered nurses. The second union, Local R5-136, represents the Respondent's professional and non-professional employees (excluding the registered nurses).
Local R5-150 and the Respondent are parties to a master collective bargaining agreement and a supplemental agreement. Local R5-136 and the Respondent are also parties to a master bargaining agreement and a supplemental agreement.
Article VII, Section A of the Labor-Management Agreement executed by Local R5-150 and the Respondent specifically provides:
The union shall be entitled to act for and to negotiate on behalf of all employees covered by this agreement. The employer agrees to recognize representatives designated by the union including officers and representatives, local unit officers, and non-VA employee officials as duly authorized NAGE representatives for carrying out representational activities consistent with the Act and the terms of this agreement.
Joint Exh. 3. at 5. Local R5-150's supplemental agreement does not limit this provision of the master agreement in any way. There is no similar provision in the master agreement executed by Local R5-136 and the Respondent.
In the spring of 1999, the Presidents of both locals were appointed to the NAGE national negotiating team. Because these negotiations were conducted in Baltimore, Maryland, the Presidents were required to be away from the workplace for two weeks on three separate occasions during the summer of 1999: June 14-25, July 12-23, and August 9-20.
During the first negotiating session conducted in June, the Presidents both designated other local union officials to act as their representatives during the period they were away. However, upon their return, they were advised that their designated representatives had encountered difficulty in obtaining official time in order to carry out their representational duties. [ v57 p496 ]
As a result of the problems with official time during their absence in June, the Presidents requested that all labor-relations matters be held in abeyance during the time they were in Baltimore for negotiations in July. The Respondent, however, was unhappy with this arrangement and accused the local Unions of attempting to avoid their bargaining obligations.
Prior to the third negotiating session in August, the Presidents of the Unions met with the Respondent's Chief Executive Officer and a Labor Relations Specialist. Also present at this meeting was the NAGE National Representative. The purpose of this meeting was to reach a solution to the Unions' problems of designating a representative and the receipt of official time. During the meeting, the National Representative suggested that he be designated as the Acting President for each of the local Unions and neither the Chief Executive Officer nor the Labor Relations Specialist raised any objections. Thereafter, on August 2, both Unions provided the Respondent with a letter designating the National Representative as their Acting President during the period of August 9-20. Two days later, the Respondent's Chief Executive Officer asked both local Unions for clarification as to who would be representing them for routine labor relations matters such as picking up the mail, responding to bargaining requests, and attending meetings. On August 6, the Union Presidents each responded in writing that the National Representative was designated as their Acting President. Both letters advised:
All matters involving labor-management relations are to be forwarded to [the National Representative] in Hampton[,] Virginia. He will be responding to bargaining requests. Telephone and fax provided previously.
G.C. Exh. 4, 12.
Prior to the departure of one of the Presidents for Baltimore, the Labor Relations Specialist sent him an e-mail explaining that the Labor Relations Specialist wanted to begin bargaining on a number of issues. The following day the Labor Relations Specialist talked with the President in the Union office. The Labor Relations Specialist inquired about who would negotiate on behalf of the Union locally in Charleston while the President was away. The President informed the Labor Relations Specialist that he should contact the National Representative. The Labor Relations Specialist never did so.
On Saturday August 14, while the Local Presidents were in Baltimore, the Labor Relations Specialist sent them an e-mail on the Respondent's internal e-mail system. Despite the fact that the Labor Relations Specialist had been repeatedly advised that he should contact the National Representative the e-mail to the Union Presidents, stated that "[t]he Agency will meet to bargain as follows: Tuesday 8-17-99 @ 10:00 [am], Room A573, on GU Clinic Move." G.C. Exh. 8. Neither Union President read the e-mail until after their return. The National Representative was never notified of the negotiating sessions and, as neither Union was aware of them, they did not send representatives.
The Judge found that the Respondent violated § 7116(a)(1) and (5) of the Statute, as alleged, by failing and refusing to recognize the Unions' designation of the National Representative during the period of August 9-20. The Judge further found that by its actions, the Respondent interfered in the Unions' internal affairs, in violation of §7116(a)(1).
The Judge found that in this case both Local R5-136 and Local R5-150 clearly designated the National Representative as their Acting Presidents for the period of August 9-20. In addition, the Judge found that the National Representative was ready and able to travel to the Respondent's facility to negotiate on behalf of both Unions during this period of time. Notwithstanding the Unions' designations, the Judge found that the Respondent, through the Labor Relations Specialist, refused to contact the National Representative. The Judge, therefore, concluded that the Respondent ignored the Unions' statutory right to designate their representatives in violation of § 7116(a)(1) and (5).
III. Positions of the Parties
A. Respondent's Exceptions
In its exceptions, the Respondent contends that the Judge ignored the plain and unambiguous language of the parties' agreement and, instead, erroneously credited the testimony of the National Representative to change the agreement's meaning. [n2] More specifically, the Respondent asserts that the clear language of Article 9 pertains to recognition and does not reference in any way the subject of official time. According to the Respondent, "[t]o specify one thing is to omit another." Exceptions at 3.
The Respondent also asserts that in relying on the testimony of the National Representative in assessing the applicable contract language, the Judge "failed to apply any normal test of credibility." Id. The Respondent [ v57 p497 ] submits that despite the National Representative's inability to testify with any specificity, and despite the fact that the instant proceeding involved "[the National Representative's] personal recognition", the Judge erroneously credited his testimony. Id.
The Respondent claims that the Judge erred in his analysis of various facts that form the basis for some of the practices between the Respondent and the Unions. For example, the Respondent contends that the Judge misinterpreted the timing of the e-mails from the Labor Relations Specialist to the Union Presidents. In particular, the Respondent claims that the Judge failed to account for the Labor Relations Specialist's practice of working on weekends and sending e-mails to the Unions during those off-duty hours. Id. at 4. The Respondent contends that the Judge erred in inferring that Respondent had contacted the National Representative in Hampton, VA when it had negotiated with him on I&I matters in Charleston. Id. The Respondent also claims that the Judge failed to attribute to the Unions their real motive for designating the National Representative, which the Respondent claims was to impede progress while the Presidents were out of town. Id. at 5.
The Respondent claims that the Judge was wrong when he failed to determine that the Union would not answer the e-mails about bargaining from the Labor Relations Specialist. Id. at 6. The Respondent also contends that the Judge erred in determining that the Unions were not aware of the negotiations sessions and that the Respondent had refused to notify the National Representative of the sessions. Id. at 7.
In addition, although "generally acknowledg[ing]" the parties' statutory right to designate their representatives, the Respondent asserts that the parties' agreements and the practices established under their agreements are equally applicable in determining whether the Respondent committed a ULP. Id. at 8. The Respondent contends that the Judge's evaluation of the facts revealed his bias for the union. Id. at 7.
According to the Respondent, the Judge's failure to recognize that the Unions' statutory right to designate a representative was impacted by the parties' negotiated agreements was in error. The Respondent explains that "[a]bsent a negotiated [a]greement, the statutory provisions would stand alone; not the case herein." Id. at 9.
The Respondent also asserts that the Judge erred in failing to find that the Unions had waived their statutory rights to designate the National Representative through the establishment of past practice. According to the Respondent, the parties had developed two longstanding practices with regard to "[U]nion notice." Id. The Respondent maintains that these practices were: (1) dealing with Union officers in Charleston, and (2) the exchange of notices and labor-management documents through a receipt book at the Respondent's Personnel Office window. In connection with the first practice, the Respondent contends that the Judge misinterpreted its position on the designation of the National Representative as a local Union officer. The Respondent explains that in the past, the Unions had designated other local Union officials to act in their stead. However, the Respondent points out that in the instant proceeding, the Unions designated a national representative instead of a local official. The Respondent maintains that "a national representative is not an elected [U]nion officer and cannot be installed as such, and to do so would violate federal laws, particularly the Labor Management and Disclosure Act of 1959." Id. at 15.
In connection with the second practice, the Respondent contends that the use of receipt books evidences the Unions' practice of designating others to pick up labor-management documents in the absence of the Unions' Presidents. Id. at 17. According to the Respondent, the Judge's failure to mention these books to establish such a practice was in error.
Next, the Respondent challenges the Judge's finding that the language of the master agreement pertaining to Local R5-136 does not bar the designation of the National Representative. Contrary to the Judge, the Respondent asserts that the express language of this agreement requires only that it recognize local Union officers and stewards. In addition, the Respondent acknowledges that the language of the master agreement pertaining to Local R5-150 is more specific and required it to recognize the National Representative. The Respondent submits that it "was prepared to do so" if the National Representative had been present at the Charleston facility. Id.
Finally, the Respondent claims that the Judge sidestepped a key issue that the unfair labor practice charges filed in this case "were inappropriately raised in the ULP forum." Id. at 18. According to the Respondent, the charges filed in the instant proceeding should instead have been raised under the grievance/arbitration procedures of the parties' agreements. In support, the Respondent asserts that in United States Dep't of Veterans Affairs, Case No. AT-CA-90578, the judge found that under the language of the parties' agreement, the grievance procedure constituted the sole and exclusive means of resolving the parties' claim. However, despite this previous determination, the Judge in this case reached a contrary result. [ v57 p498 ]
B. General Counsel's Opposition
The General Counsel maintains that the Respondent's exceptions merely challenge the Judge's credibility determinations and distort the record in this case. According to the General Counsel, having failed to offer any evidence or testimony to counter that of the National Representative, the Respondent now claims that the Judge was biased, that the National Representative failed to testify with specificity, and that the National Representative's testimony had not been credited in other proceedings. The General Counsel also points out that the Respondent cited no authority in support of its claims.
With regard to the Respondent's claim that the National Representative's testimony pertaining to Article 9 of Local R5-136's master agreement lacked specificity, as well as its claim that the National Representative had previously been discredited, the General Counsel notes that the Authority has long held that the demeanor of witnesses is an important factor in resolving credibility issues. Citing United States Dep't of the Treasury, IRS, Austin Compliance Center, Austin, Texas, 51 FLRA 629, 630 (1995), the General Counsel further notes that the Authority will not overrule a judge's credibility determinations unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. The General Counsel asserts that in this case, a review of the record demonstrates that the Judge's credibility determinations were correct.
The General Counsel also maintains that the Respondent's allegations concerning the Judge's bias are without merit. In particular, the General Counsel notes the Respondent's claim that the Judge ignored evidence that the Unions' purpose in designating the National Representative was to impede labor-management relations. The General Counsel points out that the Respondent ignores the issue in this case which is the Unions' fundamental right to designate a representative. According to the General Counsel, the Respondent's position was fully considered and ultimately rejected.
Finally, the General Counsel asserts that the Respondent's exceptions raise numerous facts and arguments that were not previously raised. The General Counsel submits that such matters include the Respondent's contentions that NAGE has rejected partnership and uses tactics of militancy (Exceptions at 2); that after the hearing, the National Representative traveled to Charleston and participated in labor-management relations that were uneventful; and that it was not required to recognize the National Representative because he was not an elected Union official. The General Counsel argues that pursuant to § 2429.5 of the Authority's Regulations, these matters should not be considered.
IV. Analysis and Conclusions
A. The Judge Correctly Interpreted Article 9 of the Master Agreement Pertaining to Local R5-136
1. Analytical Framework
A union's right to designate its own representatives is a statutory right under § 7114 of the Statute. See 5 U.S.C. § 7114; Am. Fed'n of Gov. Employees, Local 1738, 29 FLRA 178, 188 (1987) (agencies and unions have the right to designate their respective representatives when fulfilling their responsibilities under the Statute). Consequently, an agency's failure to recognize the duly authorized representative of a union violates § 7116(a)(1) and (5) of the Statute. Federal Emergency Management Agency, Headquarters, Washington, D.C., 49 FLRA 1189, 1201 (1994).
Moreover, when an unfair labor practice case is governed by the interpretation and application of specific terms of a collective bargaining agreement, the Authority must ascertain the meaning of the provision. When a judge's interpretation of a collective bargaining agreement is challenged on exceptions, the Authority must decide whether the judge's determination is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts. See, e.g., United States Dep't of Justice, INS, Washington, D.C., 52 FLRA 256, 261 (1996) (INS); IRS, Washington, D.C., 47 FLRA 1091, 1111 (1993). Therefore, the issue to be resolved in this case is whether the Judge's interpretation of the parties' master agreement is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts.
2. The Judge's Credibility Determination With Respect to The National Representative
In its exceptions, the Respondent first contends that the Judge improperly credited the testimony of the National Representative. In particular, the Respondent challenges the Judge's reliance on the National Representative' testimony concerning Article 9 of Local R5-136's master bargaining agreement.
The Authority has stated that it will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. 24th Combat Support [ v57 p499 ] Group, Howard AFB, Republic of Panama, 55 FLRA 273, 279 (1999). The Authority has noted that credibility determinations may be based on a number of considerations. Such considerations may include, but are not limited to: 1) the witness's opportunity and capacity to observe the event in question; 2) the witness's character as it relates to honesty; 3) prior inconsistent statements by the witness; 4) the witness's bias or lack thereof; 5) the consistency of the witness's testimony with other record evidence; 6) the inherent improbability of the witness's testimony; and 7) the witness's demeanor. See United States Dep't of Commerce, NOAA, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, 54 FLRA 987, 1006 n.11 (1998) (Dep't of Commerce) (citing Hillen v. Dep't of the Army, 35 M.S.P.R. 453, 458 (1987)).
"[W]here a party raises exceptions to credibility determinations based on considerations other than witness demeanor, [the Authority] will review those determinations based on the record as a whole." Dep't of Commerce, 54 FLRA at 1007. A review of the record in this case shows that the Judge's credibility determination was not based on demeanor. Therefore, consistent with Dep't of Commerce, we will review the Judge's determination based on the record as a whole.
A review of the Judge's decision shows that he specifically rejected the Respondent's claim that the National Representative's testimony lacked credibility. In so doing, the Judge noted that the National Representative was the Union's chief negotiator during negotiations for the parties' 1992 master agreement. See Judge's Decision at 3. The Judge further noted that in this capacity, the National Representative drafted the Union's proposals and attended all of the parties bargaining sessions. See id. With respect to negotiations concerning Article 9, the Judge found that the National Representative's unrebutted testimony shows that the sole purpose of the Union's proposal was to articulate how officers and stewards obtain official time and the amount of official time available for various positions. See id. at 4. The Judge further found that according to the National Representative, the intent behind its proposal for Article 9, Section 1, was to keep the local facility advised in writing of the names of the officers and stewards for obtaining official time. [The Union's] proposal was not intended to apply to NAGE national representatives . . . since such representatives do not need official time. Id. The Judge added that the National Representative's testimony shows that it was not the intent of the Union that Article 9 limit who it could designate as its representatives.
As found by the Judge, the Respondent offered no testimony or other evidence to rebut the testimony of the National Representative. Instead, the Respondent contends that the National Representative's testimony should not have been credited because, inter alia, he was unable to testify with specificity and was personally involved in this case. Notwithstanding these contentions, the Respondent has offered no argument or evidence to show which aspects of the National Representative's testimony lacked specificity or how the National Representative's involvement in the events of this proceedings tainted the Judge's credibility determination. We find that a clear preponderance of all the relevant evidence does not demonstrate that the Judge's credibility determination was incorrect. Therefore, we deny this exception. [n3]
3. The Judge's Interpretation of Article 9
The Respondent additionally challenges the Judge's finding that Article 9, Sections 1 and 4 of the master agreement pertaining to Local R5-136 does not prohibit the National Representative's designation. The Respondent maintains that the Judge's finding ignores the express language of these provisions and should therefore be set aside.
The language of Article 9, Section 1 specifically provides:
[t]he Employer shall recognize the officers and stewards of the Union. The Union will keep the local facility advised in writing of the names of its officers and stewards. Any changes will be reported to management in writing. A complete revised listing will be provided by the Union at least annually. Management officials of the Employer will officially recognize only those Union representatives who have been appointed and reported in keeping with this article.
Joint Exh. 1 at 6. The language of Article 9, Section 4 also provides that "Representatives of the national office for NAGE will be allowed to visit the facilities on appropriate union business." Id. [ v57 p500 ]
The Judge found that under Article 9, Section 1 the Respondent is required to recognize officers and stewards of the Union. The Judge also found that the Union is required to advise the Respondent, in writing, of the names of such individuals, as well as any changes. Based on the express language of this provision, the Judge concluded that nothing precluded Local R5-136 from designating a NAGE national representative as its Acting President. The Judge further observed that under Article 9, Section 4, NAGE national representatives are permitted to visit the Respondent's facilities on appropriate Union business. As previously discussed above, the Judge additionally credited the testimony of the National Representative that Article 9, Section 1 was not intended to limit those whom the Union could designate as its representatives.
Based on credited testimony and the entire record, we find that the Judge's interpretation of the parties' master agreement is fully supported by the record. We therefore deny this exception.
B. Judge Correctly Concluded that the Unions' Statutory Right to Designate the National Representative had not been Waived Through an Established Past Practice
The Respondent further claims that the Unions waived their statutory right to designate the National Representative as their Acting Presidents because of the practice of dealing only with Union officers and stewards at the Charleston facility. The Respondent maintains that as a result of this practice, it could refuse to deal with non-local officials even after a clear delegation of authority has been made.
In order to establish the existence of a past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. See United States Dep't of Justice, Executive Office for Immigration Review, Board of Immigration Appeals, 55 FLRA 454, 456 (1999); Marine Corps Logistics Base, Barstow, California, 46 FLRA 782, 798 (1992) (MCLB).
In this case, the Judge found that a relevant past practice had not been established. The Judge determined in this regard that "[t]he only practice that would be relevant to this case would . . . be one where [the Respondent] had dealt with local officials when the [Union] Presidents were unavailable." Judge's Decision at 22. Although the Judge found that there was at least one occasion during which the Unions had designated local officials to represent them, the Judge concluded that this did not create a practice, but instead created a problem that the parties later sought to avoid. A review of the record fails to reveal any further evidence that would establish an applicable past practice. Nor have the Respondent's exceptions offered any additional argument or evidence to support this claim.
We find that the Judge's findings are supported by the entire record. We therefore deny this exception. See, e.g., MCLB, 46 FLRA at 799. [n4]
C. The Judge Did Not Err in Assessing Various Facts
As noted above, the Respondent contests the Judge's assessment of certain facts. In this connection, the Respondent claims that the Judge: incorrectly inferred that the Respondent had contacted the National Representative in Hampton, VA for I&I bargaining on other matters; failed to note that the Labor Relations Specialist often sent e-mails to the union during off-duty hours; failed to determine that the Union wanted to impede labor-management relationships while the Presidents were out of town; failed to find that the Union did not respond to the Respondent's e-mails about bargaining; incorrectly characterized the Respondent's actions as refusing to notify the National Representative about bargaining, instead of maintaining the status quo practices. Exceptions at 4-8. None of these claims affects the grounds for the Judge's decision, which we have determined are correct.
The record is clear: the Agency did not contact the National Representative regarding the bargaining at issue. That failure to contact the designated representative of the Unions was not sanctioned by the collective bargaining agreement or past practice with respect to the conduct of negotiations. The fact that the Respondent stated that it would work with the National Representative when he arrived at the Charleston location but would not telephone or fax to him a notice of a bargaining obligation does not relieve the Respondent of liability of for failure to send notice to the representative. The Respondent's reliance on the exchange of labor-management communications through the receipt book at the Personnel Office window is unpersuasive. The Labor Relations Specialist frequently communicated by means other than the receipt book at the window, i.e., via e-mail. Moreover, the Respondent's refusal to communicate with the designated representative deprived him of the chance to have a steward or other agent at the [ v57 p501 ] Charleston location pick up or drop off documents at the Personnel Office window.
Based on the entire record, we find that the Judge did not err in assessing certain facts. We therefore deny these exceptions.
D. The Judge Correctly Concluded that the Unions' Statutory Right to File Unfair Labor Practice Charges had not been Waived in the Parties' Master Agreements
As a final ground for its exceptions, the Respondent maintains that the issues in this proceeding were inappropriately raised and addressed through the filing of an unfair labor practice charge. In support of this position, the Respondent cites the judge's decision in United States Dep't of Veterans Affairs, Case No. AT-CA-90578. [n5]
The record shows that prior to the hearing in this case, the Respondent filed a Motion for Summary Judgment. In its motion, the Respondent argued that the allegations set forth in the consolidated complaint were contractual disputes and that the grievance procedures included in the parties' master agreements were the sole forum for their resolution. See Motion for Summary Judgment; Judge's Decision at 2 n.1. The Respondent, therefore, maintained that the unfair labor practice proceedings were "contractually barred." Motion for Summary Judgment at 1.
In denying the Respondent's motion, the Judge noted its reliance on Dep't of Veterans Affairs. However, the Judge found that Dep't of Veterans Affairs is inapplicable to the instant proceeding because the primary issue in that case involved the interpretation of Article 47 of Local R5-136's master bargaining agreement. According to the Judge, the primary issue in this case only involves an alleged violation of a union's statutory right to designate its representatives.
We reject the Respondent's reliance on the judge's decision in Dep't of Veterans Affairs, and we find, for the reasons set forth below, that the Judge correctly concluded that the Unions had not waived their right to file an unfair labor practice charge.
In IRS, Washington, D.C., 47 FLRA at 1106, the Authority rejected the respondent's claim that merely because the parties incorporate a statutory right in a collective bargaining agreement, the Authority's jurisdiction to resolve unfair labor practice complaints involving that right is supplanted by the coverage of the negotiated grievance procedure. The Authority explained that under § 7121 of the Statute, every collective bargaining agreement must contain a grievance procedure that provides for binding arbitration of all disputes within its coverage that have not been satisfactorily settled. The definition of grievance includes violations of law. 5 U.S.C. § 7103(a)(9). However, the Authority concluded that there is no basis in the federal sector for viewing a grievance arbitration clause as constituting a waiver of the right to file an unfair labor practice charge with respect to statutory matters also covered by the grievance procedure. The Authority stated that [i]f such were the case, the choice given to the aggrieved party to raise issues either as an unfair labor practice or as a grievance [set forth in § 7116(d)] would be illusory. IRS, Washington, D.C., 47 FLRA at 1106.
The complaint in this case alleges that the Respondent engaged in an unfair labor practice as set forth in § 7116(a)(1) and (5) of the Statute and does not involve the resolution of a grievance. In addition, a review of Article 47 entitled "Grievance Procedure," which the Respondent cites, shows that it is the grievance clause mandated by § 7121 of the Statute. The Respondent argues that the reference to the procedure's "sole" and "exclusive" coverage for resolving disputes regarding the collective bargaining agreement precludes the charging party from seeking redress in an unfair labor practice case. Exceptions at 19. However, this case concerns a violation of the Statute, and the Respondent's contractual defenses do not change a statutory violation subject to the unfair labor practice procedure into a contract violation claim that must be grieved. No other arguments with regard to waiver were advanced during the course of this proceeding. Accordingly, we conclude that the parties' master agreements do not contain a waiver of their statutory rights to file an unfair labor practice charge. [n6] We, therefore, deny this exception.
Consistent with the foregoing, we find that the Respondent violated § 7116(a)(1) and (5) when it failed to recognize and refused to deal with the Unions' designated representative. [ v57 p502 ]
Pursuant to § 2423.41 of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, S.C. shall:
1. Cease and desist from:
(a) Failing and refusing to recognize the designated representatives of the National Association of Government Employees, Local R5-136, SEIU, AFL-CIO and the National Association of Government Employees, Local R5-150, SEIU, AFL-CIO, including national representatives from the National Association of Government Employees.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and