U.S. Department of Veteran Affairs, Veterans Affairs Medical Center, Coatesville, Pennsylvania (Respondent) and National Association of Government Employees, Local R3-35, SEIU, AFL-CIO (Charging Party/Union)
[ v57 p662 ]
57 FLRA No. 132
U.S. DEPARTMENT OF VETERAN AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-35, SEIU, AFL-CIO
DECISION AND ORDER
January 8, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent.
The Judge found that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it implemented VA Directive 5451, Employees Recognition and Awards, and VA Handbook 5451, Employee Recognition and Awards Procedures and Guides without providing the Union with notice and an opportunity to bargain to the extent required by the Statute. The Judge also found that the Respondent violated § 7116(a)(1) and (5) of the Statute by failing to respond to the Union's bargaining request concerning proposed Medical Center Policy #ESD-11-99, and by failing to advise the Union it had decided not to implement the proposed policy.
Upon consideration of the Judge's decision and the entire record, we deny the Respondent's exceptions and adoptthe Judge's findings and conclusions and recommended Order to the extent consistent with this decision.
NAGE is the certified exclusive representative of a nationwide consolidated unit at the Department of Veterans Affairs (VA). The Charging Party (NAGE, Local R3-35 or the Union) is an agent of NAGE for the purpose of representing bargaining unit employees located at the Respondent's Medical Center in Coatesville (VA Coatesville).
In 1998, the VA changed from a five-tiered to a two-tiered (pass/fail) performance rating system for title 5 employees. As a result, performance awards were no longer linked to employee performance ratings for these employees. To bring VA's policy into alignment with the new performance rating system, the VA sought to implement VA Directive 5451 and VA Handbook 5451.
To accomplish this objective, on July 23, 1998, the VA negotiated a Memorandum of Understanding (MOU) with NAGE. Paragraph 4 of the MOU provides:
The parties agree that pending final and binding agreement over proposals relating to incentive awards and employee recognition, the [VA] may implement Directive 5451, subject to impact bargaining obligations at the facility level.
Judge's Decision at 3. VA Coatesville received VA Directive 5451 and the related new appendices to VA Handbook 5451 from the VA in August 1998. VA Coatesville did not notify NAGE, Local R3-35 that it had received these documents and that it planned to implement the new policy. Later, the local Union president received a communication from the Respondent's Chief of Human Resources Management Service (Chief of HRMS), on another matter that led him to believe VA Coatesville was still following its May 1993 policy, #05-16-93, on incentive awards.
On February 4, 1999, VA Coatesville's Performance Manager sent a copy of a draft of Medical Center Policy #ESD-11-99, Employee Recognition Program (Policy #ESD-11-99) to NAGE Local R3-35. The cover sheet to the policy stated that supervisors and employees would receive training on this "new policy" between March and June of 1999. Judge's Decision at 4. NAGE Local R3-35 responded with ground rules and bargaining proposals dated February 6, 1999, which VA Coatesville received within the time requirements of the parties' collective bargaining agreement. VA Coatesville did not respond to NAGE Local R3-35 proposals and bargaining requests. The Union later received further information concerning VA Coatesville's plans for implementing a new performance awards program through the minutes from a Chief of Information Office (CIO) staff meeting on February 11, 1999. The minutes, in part, stated:
The medical center is in the process of implementing the new performance awards program. Services will be allocated funds and will be in control [ v57 p664 ] of their own awards program. CIO has asked for suggestions from the staff on the type of awards that they prefer.
Id. at 5.
The President of NAGE Local R3-35 was also advised by two supervisors that they had received training on Policy #ESD-11-99. Thereafter, the Union filed the instant ULP charge, as amended.
In November 1999, VA Coatesville, in response to the ULP charge, advised the FLRA Boston Regional Office that there was "no active Medical Center Policy by that name or number [ESD-11-99]," that no such policy was listed on the current list of policies, and that "[m]anagement adheres to VA Handbook 5451 . . . regarding awards." Judge's Decision at 5-6 (quoting G.C. Exh. 2, 3; Jt. Exh. 6). At about the same time, the Respondent's Chief Executive Officer (CEO) advised NAGE Local R3-35 that no center policy "has yet been issued." Id. However, the Respondent's Chief of HRMS advised the local Union President that it had implemented VA Directive 5451.
The Judge found: (1) VA Directive 5451 brought VA's recognition and awards policy into alignment with the new two-tiered performance rating system, whereby performance awards were no longer linked to employee performance ratings as under VA Coatesville's policy #05-16-93; and (2) VA Handbook 5451 provided facilities with the procedures and guides for carrying out the policies provided in VA Directive 5451, and authorized on-the-spot and time-off awards as specifically included in the category of Special Contribution awards. According to the Judge, these awards were not included in the comparable section of VA Coatesville policy #05-16-93. The Judge also found that unit employees have since received on-the-spot awards.
Based on the evidence, the Judge found that the Respondent had changed unit employees' conditions of employment when on or after August 26, 1998, the Respondent implemented VA Handbook 5451 and VA Directive 5451. The Judge also found that under the Statute the Respondent was obligated to bargain prior to making changes in established conditions of employment. Accordingly, he found that the Respondent violated § 7116(a)(1) and (5) of the Statute when it implemented VA Handbook 5451 and VA Directive 5451 without providing the Union notice and an opportunity to bargain to the extent required by the Statute.
The Judge also found that the Respondent's failure to respond to NAGE, Local R3-35's bargaining request concerning VA Coatesville's Policy #ESD-11-99 and failure to advise the Union that it had decided to implement VA Handbook 5451 and VA Directive 5451 instead of VA Coatesville's Policy # ESD-11-99 amounted to a refusal to discuss or negotiate on conditions of employment in good faith, as required by § 7114(b)(1) and (2) of the Statute, and thereby violated § 7116(a)(1) and (5) as alleged.
As a remedy, the Judge recommended in addition to a cease and desist order and posting, a retroactive bargaining order.
III. Positions of the Parties
A. Respondent's Exceptions
Procedurally, the Respondent contends that the ULP charge in this case is barred under § 7116(d) of the Statute because the Union raised the issue involved here in a previously filed grievance. [n1] The Respondent also asserts that the Judge "would not allow . . . pertinent testimony [concerning this matter] at the hearing and [that] this significantly interfered with his judgment of th[e] case." Exceptions at 2. The Respondent contends that "subsequent to the . . . hearing," the Judge "decided to disallow testimony from the [Respondent's] Chief [of HRMS] that . . . indicated that the Union had circumvented the law by raising the issue during arbitration and filing a ULP charge." Id.
As to the merits, the Respondent asserts that the Judge erred by finding that it changed unit employees' conditions of employment by implementing VA Directive 5451 and Handbook 5451. According to the Respondent, "[i]t is undisputed" that the directive and handbook "[are] solely guidance and [are] not a policy or procedure that would affect any employee's working conditions." Id. at 2. The Respondent acknowledges that the DVA "changed from a five tier to a two tier performance appraisal system" for the subject employees and that as a result "performance awards were not linked to performance ratings." Id. However, the Respondent asserts that this change from a five tier to a two tier performance system was "the only substantive change the VA made" and that "there are no policies or procedures [in the directive or handbook] to implement." Id. [ v57 p665 ]
The Respondent contends that the only change to the VA Coatesville awards program the Union identified was the RN/LPN recruitment bonuses. However, according to the Respondent, this award was not a new initiative under VA Directive 5451 and VA Handbook 5451, but had been in place under policy #05-16-93. The Respondent noted that the "only change to have taken place . . . was the committee for awards that had not been utilized for at least five years." Id. at 3.
Concerning the Judge's finding that it failed to notify the Union of its decision not to implement VA Coatesville's Policy #ESD-11-99, the Respondent asserts that "[m]anagement understands, to some degree, the obligation it has to notify the Union that it planned not to implement a policy it had proposed. If a posting for that purpose is required, [m]anagement will adhere." Id. at 3. The Respondent excepts to the Judge's order requiring it to make whole unit employees for loss of pay and benefits, arguing that the General Counsel and the Charging Party did not identify any employees adversely affected by its action with respect to the Directive and Handbook.
B. General Counsel's Opposition
The General Counsel contends that the Respondent's exceptions fail to comply with § 2423.40(a) of the Authority's Regulations. The General Counsel asserts that the exceptions "neither cite to the record, articulate with specificity the findings and conclusions being challenged, set forth the issues to be addressed, nor provide a discussion of the applicable law, as required by § 2423.40(a) of the Regulations." [n2] Opposition at 3. The General Counsel asserts that it has been "prejudiced" by Respondent's failure to follow the regulations and requests the Authority to refuse to consider the exceptions. Id. at 4. The General Counsel also argues that the Respondent relies on certain "facts and documents not in evidence" before the Judge and requests that such not be considered under § 2429.5 of the Authority's Regulations. Id.
The General Counsel next contends that the Respondent's contentions concerning the Judge's rulings on its § 7116(d) objection are groundless. Among other things, the General Counsel asserts that the Respondent failed to raise the § 7116(d) defense prior to its post-hearing brief and, therefore, it was proper for the Judge to strike this defense as a sanction consistent with § 2423.24(e) of the Authority's Regulations. Alternatively, the General Counsel contends that the Judge found that the defense was not supported by a preponderance of the evidence.
Turning to the merits, the General Counsel asserts that contrary to the Respondent's contention, VA Directive 5451 and VA Handbook 5451 contain policies and procedures, not merely guidance. The General Counsel also contends that the record supports the Judge's finding and conclusion that the Respondent implemented these documents without satisfying its bargaining obligation. Id. (quoting Judge's Decision at 6). The General Counsel asserts that although it is not clear whether Respondent is challenging the Judge's finding that it violated the Statute by failing to notify the Union of its decision not to implement VA Coatesville's Policy #ESD-11-99, even if so, the Judge's decision is supported by the record and comports with Authority precedent. The General Counsel also contends that the Respondent's claim that the General Counsel and the Union failed to identify any employee adversely affected by the directive or the handbook "is of no consequence" because the Authority has issued retroactive bargaining orders in similar cases. Id. at 16.
IV. Analysis and Conclusions
A. Preliminary Issues
1. The Exceptions Comply with § 2423.40(a) of the Authority's Regulations
Section 2423.40(a)(1) of the Authority's Regulations states that exceptions shall consist of "[t]he specific findings, conclusions, determinations, rulings, or recommendations being challenged[.]" Section 2423.40(a)(2) states, in pertinent part, that exceptions shall consist of "[s]upporting arguments, which shall set forth, in order: all relevant facts with specific citations to the record; the issues to be addressed; and a separate argument for each issue, which shall include a discussion of applicable law."
We find that the exceptions adequately set forth relevant facts to support the arguments presented therein. Further, as to citations to the record, based on Authority precedent, the exceptions satisfy the requirements of § 2423.40. See, e.g., Dep't of the Treasury, United States Customs Service, El Paso, Texas, 56 FLRA 398, 402 (2000) (citing United States Dep't of [ v57 p666 ] Veteran Affairs, Medical Center, Long Beach, Cal., 39 FLRA 1347, 1347-48 n.* (1991)). Accordingly, we deny the General Counsel's request. [n3]
2. Information Contained in the Exceptions Not Considered by the Authority
Section 2429.5 of the Authority's Regulations provides that the Authority will not consider evidence that was not presented in the proceedings before the Administrative Law Judge. To the extent that the General Counsel contends that certain "state[ments]" of an arbitrator contained in an award attached to the exceptions, identified as Attachment 3; Attachment 4 and pages 1-24 of Attachment 2 to the exceptions were not presented before the Judge and, therefore, should not be considered, we find that, pursuant to § 2429.5 of the Authority's Regulations, the cited statements were not presented in the proceeding before the Judge. Exceptions at 2. Accordingly, we have not considered these statements and documents in this decision. The remaining statements challenged by the General Counsel, which describe the VA Directive and Handbook, constitute argument concerning the Judge's findings, and will be considered.
3. The ULP Charge Giving Rise to the Complaint Is Not Barred by a Previously Filed Grievance
The Respondent offers no citation to the transcript showing that the Judge excluded testimony concerning any grievance. A reading of the transcript reveals that the only witness who offered "vague references to a grievance and arbitration" was the Chief of HRM, and nothing in the record shows that any party objected to this witness testimony or that the Judge made any ruling disallowing this witness' testimony concerning the grievance. See Tr. at 89, 124-25.
To the extent that the Respondent claims that the Judge disallowed the testimony of its Chief of HRM subsequent to the hearing, this claim is construed as a challenge to the Judge's ruling, pursuant to § 2423.24(e) of the Authority's Regulations.
Pursuant to § 2423.24(e), the Judge struck, as a sanction, the Respondent's argument in its brief that the ULP charge is barred by section 7116(d) of the Statute due to a previously filed grievance on the same matter because the Respondent had not raised the argument in its answer, prehearing disclosure or opening statements. Notwithstanding the Judge's sanction, the Authority has a responsibility to determine whether the Authority has jurisdiction. Exceptions that challenge the Authority's jurisdiction under § 7116(d) of the Statute must be addressed although not raised by the Respondent as described above. See United States Dep't of Energy, Western Area Power Administration, Golden Colo., 27 FLRA 268 (1987), rev'd on other grounds, No. 87-2062 (10th Cir. Nov. 15 1989) (order) (§ 7116(d) issues must be addressed although not raised by the respondent because that issue concerns the Authority's jurisdiction). See, e.g., Puerto Rico Air National Guard, 156th Airlift Wing (AMC), Carolina, Puerto Rico, 56 FLRA 174, 177 (2000), review denied, AFGE, Local 3936, AFL-CIO v. FLRA, 239 F.3d 66 (1st. Cir. 2001) (notwithstanding the Judge's sanctions, the Authority found that the jurisdictional issue had to be examined). Accordingly, we must address the Respondent's § 7116(d) argument.
"In determining whether a ULP and a grievance involve the same issue, the Authority focuses on whether the ULP arose from the same set of factual circumstances as the grievance and whether the theories advanced in support of the ULP and the grievance are substantially similar." AFGE, Local 1917, 52 FLRA 658, 663 (1996); United States Dep't of the Army, Army Finance and Accounting Center, Indianapolis, Indiana and AFGE, Local 1411, 38 FLRA 1345, 1350-51 (1991), review denied, AFGE, Local 1411 v. FLRA, 960 F.2d 176 (D.C. Cir. 1992).
Although the Judge struck the Respondent's § 7116(d) defense, the Judge found that even if this defense was considered, a "preponderance of the evidence" does not support finding that the ULP was barred by the grievance because the evidence is insufficient for a determination that the ULP arose from the same set of factual circumstances as the grievance as well as insufficient to determine that the theories advanced in support of the ULP and the grievance are substantially similar. Judge's Decision at 2 n.1. We agree.
In this connection, the Respondent's witness testified that "[w]e had an arbitration case that said we were in violation of the contract, which said that we had a five-tiered system, and we implemented a two-tiered system." Tr. at 124. This testimony reveals that the "issue" involved in the arbitration concerned the litigation of a theory alleging a violation of the parties' agreement based upon the Respondent's change from "a five-tiered" performance appraisal system to "a two-tiered system." Id. at 89 and 124. See also [ v57 p667 ] Exceptions at 2 (indicating that the arbitration award concerned the "reinstatement of the 5 tier [performance] system"). The evidence shows that the arbitration case dealt with the circumstances of the Respondent's change from a five-tiered performance appraisal system to a two-tiered system, and whether doing so violated the parties' agreement. On the other hand, the ULP complaint litigated here alleges a violation of 5 U.S.C. § 7116(a)(1) and (5) because the Respondent implemented a policy on employee recognition and awards without notifying the Union or fulfilling its bargaining obligations under the Statute. See G.C. Exhibit 1(K).
Accordingly, we find, in agreement with the Judge, that the evidence is insufficient to establish that the ULP arose from the same set of factual circumstances as the grievance and to determine that the theories advanced in support of the ULP and the grievance are substantially similar. Consequently, the ULP charge is not barred by a previously filed grievance.
The Judge Did Not Err by Finding that the Respondent violated § 7116(a)(1) and (5) of the Statute When It Implemented an Agency Directive and Handbook Concerning Awards without Providing the Union Notice and an Opportunity to Bargain to the Extent Required by the Statute
The Respondent asserts that the Judge erred by finding that it changed unit employees' conditions of employment by implementing VA Directive 5451 and VA Handbook 5451. For reasons set forth below, we find, contrary to the Respondent's contention, the Judge's factual findings and the record as a whole support his conclusion that the Respondent violated § 7116(a)(1) and (5). See Air Force Materiel Command, Warner Robins Air Logistics Center, Robins AFB, Georgia, 53 FLRA 1092, 1093 (1998) (Authority looks to whether "the Judge's factual findings and the record as a whole" support the Judge's conclusions).
In asserting that the Judge erred, the Respondent contends that "[i]t is undisputed" that the directive and handbook "[are] solely guidance and [are] not a policy or procedure that would affect any employee's working conditions." Exceptions at 2. However, the Judge specifically found that: (1) VA Directive 5451 brought VA's recognition and awards policy into alignment with the new two-tiered performance rating system, whereby performance awards were no longer linked to employee performance ratings as under policy #05-16-93; and (2) VA Handbook 5451 provided facilities with the procedures and guides for carrying out the policies provided in VA Directive 5451, and authorized on-the-spot and time-off awards as specifically included in the category of Special Contribution awards, which were not included in such section in Policy #05-16-93. See Judge's Decision at 6.
The record further shows that the Judge did not credit the testimony of the Chief of HRM that policy #05-16-93 was the "current policy" and that there had been "no change" in the awards policy. Id. As found by the Judge, the record shows that the Respondent had made changes in the awards system from policy #05-16-93 and that the Respondent had admitted it was adhering to VA Handbook 5451. The Respondent's contention that the only change identified at the hearing was RN/LPN recruitment bonuses is not supported by the record, which shows that the Judge's determination was based on his findings of other changes to the award's system, including on-the-spot and time-off awards that had not been included in the previous Special Contributions awards policy.
Moreover, the Respondent acknowledges that a change did take place with respect to "the committee for awards" that had been "designated to review nominations and recommend monetary awards for performance" under policy #05-16-93, in that the committee no longer existed. Exceptions at 3 and Judge's Decision at 6.
Based on the above, we find that the Judge's factual findings and the record as a whole establish that the Respondent changed unit employees' conditions of employment by implementing VA Directive 5451 and VA Handbook 5451. Accordingly, the preponderance of the evidence supports the Judge's conclusion that the Respondent violated § 7116(a)(1) and (5) of the Statute when it implemented the directive and handbook without providing the Union notice and an opportunity to bargain to the extent required by the Statute. [n4]
Additionally, the Respondent's contention that the General Counsel and the Charging Party did not identify any employees adversely affected by its action with respect to the VA Directive and Handbook provides no basis for modifying the order because such employees can be identified through application of the retroactive bargaining order to which the Respondent does not object. See, e.g., United States Dep't of the Air Force, Air Force Materiel Command, 54 FLRA 914, 922-23 (1998); FDIC, Washington, D.C., 48 FLRA 313, 330-31 [ v57 p668 ] (1993), petition for review denied sub nom. FDIC v. FLRA, No. 93-1694 (D.C. Cir. 1994).
Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Veterans Affairs, Veterans Affairs Medical Center, Coatesville, Pennsylvania, shall:
1. Cease and desist from:
(a) Changing the conditions of unit employees by implementing VA Directives, VA Handbooks, or any related policy dealing with employee recognition and awards, without providing the National Association of Government Employees, Local R3-35, SEIU, AFL-CIO, the agent of the exclusive representative of unit employees, with notice and an opportunity to negotiate to the extent consistent with the Statute.
(b) Failing or refusing to respond to a bargaining request from the National Association of Government Employees, Local R3-35, SEIU, AFL-CIO, and, if submitted in response to proposed policies, failing to advise the Union promptly of any substantive change in the status of its proposals.
(c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request, bargain with the National Association of Government Employees, Local R3-35, SEIU, AFL-CIO, to the extent consistent with the Statute over its implementation of VA Directive 5451 and VA Handbook 5451, concerning the employee recognition and awards policy, and apply retroactively to the date of implementation the terms of any agreement that may result.
(b) Make whole any bargaining unit employee for any loss of pay and/or benefits suffered as a result of its failure to negotiate with the National Association of Government Employees, Local R3-35, SEIU, AFL-CIO, over the implementation of VA Directive 5451 and VA Handbook 5451, concerning the employee recognition and awards policy. Any such payment will be made in accordance with the Back Pay Act, 5 U.S.C. § 5596, as amended, and will include the payment of interest.
(c) Post at its facilities at the Coatesville Medical Center, where bargaining unit employees represented by the National Association of Government Employees, Local R3-35, SEIU, AFL-CIO are located, 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 Chief Executive Officer, and they shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Boston Region, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Auth