File 2: ALJ's Decision
[ v57 p669 ]
Office of Administrative Law Judges
U.S. DEPARTMENT OF VETERANS AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-35, SEIU, AFL-CIO
Case No. BN-CA-90497
Stephen M. Pahides, Esquire
For the Respondent
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, as amended, alleges that the 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), when, on or after August 26, 1998, the Respondent implemented VA Handbook 5451, Employee Recognition and Awards Procedures and Guides and/or when, on or about March 1, 1999, the Respondent implemented Medical Center Policy #ESD-11-99, Employee Recognition Program, without providing the Charging Party (Union) with notice and an opportunity to bargain to the extent required by the Statute. The complaint further alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to respond to the Charging Party's request to bargain over Medical Center Policy #ESD-11-99 and accompanying proposals and at no time informed the Union that it had decided not to implement the change.
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. [ v57 p670 ]
A hearing was held in Philadelphia, Pennsylvania. 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. [n1] 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 the 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.
In 1998, the Department of Veterans Affairs (DVA) changed from a five-tiered performance rating system to a two-tiered (pass/fail) performance rating system for Title 5 employees.When this happened, performance awards for these employees were no longer linked to employee performance ratings. DVA then sought to implement two publications: VA Directive 5451, Employee Recognition and Awards, to bring VA's policy into alignment with the performance appraisal system, and VA Handbook 5451, Recognition and Awards Procedures, a related handbook for carrying out the policies in the directive.
To accomplish these matters, DVA negotiated a Memorandum of Understanding (MOU) with NAGE regarding the Employee Recognition and Awards Policy on July 23, 1998. Paragraph 4 of the MOU states:
The parties agree that pending final and binding agreement over proposals relating to incentive awards and employee recognition, the DVA may implement Directive 5451, subject to impact bargaining obligations at the facility level. (G.C. Exh. 4).
The negotiators for NAGE proposed this paragraph to ensure that NAGE Local Unions would retain their impact bargaining rights with regard to this new recognition program. The DVA negotiator accepted this proposal with no modifications. In drafting and signing the MOU, the parties did not intend to limit the Respondent's bargaining obligations to only the Directive and not to the accompanying Handbook, as the Handbook is the implementing tool for the Directive, and the two documents together make up DVA's new Employee Recognition and Awards Policy.
The Respondent received VA Directive 5451 and the related new appendices to VA Handbook 5451 from the DVA in August 1998. (Jt. Exh. 2 & 3). However, the Respondent did not notify the Union that it had received the Directive and Handbook or that it planned to implement the new policy at the Coatesville facility.
In an October 30, 1998 letter to the Union concerning a grievance (not further described in the record), the Respondent, through George R. Pearson, Chief of Human Resources Management Service, stated that it was still "following our existing incentive awards policy." Pearson added that "[i]t is unfortunate that local NAGE R3-35 refuses to recognize the [DVA's] new two tier rating system which no longer automatically compensates employees for a performance rating of Outstanding, Highly Successful or Fully Successful ratings." (G.C. Exh. 9). Pearson's letter went on to state:
As far as incentive awards are concerned, management has not made any changes. Employees still receive special contribution awards, time off awards, group awards, special advancement for [ v57 p671 ] achievement awards, employee of the month/year awards and special act awards. . . . (G.C. Exh. 9).
The incentive awards Pearson referred to were set forth in the Respondent's incentive awards policy, Medical Center Policy #05-16-93 of May 1993. (G.C. Exh. 10). It was the Union's understanding that Pearson meant that the Medical Center was still following its 1993 policy.
On February 4, 1999, Sue W. Scott, the Respondent's Performance Manager, sent a copy of Draft Medical Center Policy #ESD-11-99, Employee Recognition Program, to the Union. The transmittal slip that accompanied the policy stated that supervisors and employees would receive training on this "new policy" between March and June of 1999. (Jt. Exh. 4). The Union responded to this new policy with ground rules proposals and bargaining proposals dated February 6, 1999. (G.C. Exh. 5 & 6). The Respondent received the proposals on February 16, 1999 (G.C. Exh. 5 at 1; 6 at 8), well within the 15-day timelimit required by the parties' Master Agreement. [n2] (Jt. Exh. 1 at 8-9). Nevertheless, the Respondent did not respond to the Union's proposals and bargaining request.
The Union subsequently received further information regarding the Respondent's plans for implementing a new performance awards program. Paragraph 4(g) of the minutes from a Chief of Information Office staff meeting on February 11, 1999, 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 of their own awards program. CIO has asked for suggestions from the staff on the type of awards that they prefer. (G.C. Exh. 7).
Union President Bailey was also advised by Supervisors Lucille Williams, William Griffin, and Spence Sidkner that they had received training on ESD-11-99.
The Union filed an unfair labor practice charge. In response to the charge and an investigation by the Boston Region of the Authority, the Respondent advised the Boston Region in November 1999 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 Center list of policies, and that "[m]anagement adheres to VA Handbook 5451, Employee Recognition and Awards Procedures and Guides, regarding awards." (G.C. Exh. 2, 3; Jt. Exh. 6). At about the same time, the Respondent, by Chief Executive Officer Gary W. Devansky, advised Union President Bailey simply that no Center policy "has yet been issued." However, Pearson advised Bailey that the Respondent had implemented the VA Directive.
Mr. Pearson testified that a decision was made by the Chief Executive Officer not to implement ESD-11-99 and the VA Directive as it was concluded that the proposed policy "just parrot[ed] the [VA] Handbook." (Tr. 97, 116). Mr. Pearson testified that his understanding of the MOU executed at the national level required bargaining only if there was a change in conditions of employment. Pearson stated that Respondent's current policy is Medical Center Policy #05-16-93 of May 1993 and there has been no change.
I do not credit Mr. Pearson's testimony that Respondent's current policy is, or was at relevant times, the Medical Center's Policy #05-16-93 of May 1993 or that there has been no change in the awards policy. Medical Center Policy #05-16-93 states a mandatory reissue date of May 1996 (G.C. Exh. 10), and Respondent's own list of current Center policies does not include Medical Center Policy #05-16-93 (Jt. Exh. 6). Moreover, bargaining unit employees no longer receive performance-based awards, as authorized by Medical Center Policy #05-16-93, and the ad hoc awards committee designated to review nominations and recommend monetary awards for performance under Medical Center Policy #05-16-93 no longer exists.
The record reflects that Respondent has made changes in the incentive awards system from Medical Center Policy #05-16-93 in that it is now admittedly "adhering" to the VA Handbook 5451. A common dictionary meaning of "adhere" is "to follow without deviation." Websters II, New Riverside University Dictionary (1988). As noted, VA Directive 5451 brought VA's recognition and awards policy into alignment with the performance appraisal system, a two-tiered [ v57 p672 ] (pass/fail) performance rating system for Title 5 employees, whereby performance awards for Title 5 employees were no longer linked to employee performance ratings as under Medical Center Policy #05-16-93. VA Handbook 5451, Recognition and Awards Procedures, provided facilities with the procedures and guides for carrying out the policies in the directive. In addition, VA Handbook 5451 authorized On-the-Spot and Time-Off Awards as specifically included in the category of Special Contribution Awards. These awards were not specifically included in Special Contribution Awards in Medical Center Policy #05-16-93. Bargaining unit employees have since received On-the-Spot Awards.
Respondent did not notify the Union that it had made a decision not to implement Medical Center Policy #ESD-11-99, as had been proposed, nor did it notify the Union and afford it an opportunity to bargain concerning its decision to implement VA Handbook 5451 instead of Medical Center Policy #ESD-11-99.
Discussion and Conclusions
Unilateral Change in Conditions of Employment
The record reflects that the Respondent made a change in conditions of employment of bargaining unit employees when, on or after August 26, 1998 the Respondent implemented VA Handbook 5451 (and VA Directive 5451, the basis for the relevant provisions of the Handbook), concerning employee recognition and awards procedures and guides. Department of Veterans Affairs Medical Center, St. Louis, Missouri, 50 FLRA 378, 380 (1995)(award program a condition of employment); National Treasury Employees Union and Internal Revenue Service, 27 FLRA 132, 136-37 (1987)(proposals relating to incentive awards concern a condition of employment); National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 481 (1990)(performance awards concern a condition of employment).
The record establishes that the parties at the level of exclusive recognition - i.e., at the national level - planned to bargain over incentive awards and employee recognition. In the parties' MOU regarding VA Directive 5451, NAGE agreed to allow the DVA to implement the Directive pending final and binding agreement over proposals relating to incentive awards and employee recognition, subject to impact bargaining obligations at the facility level. Apart from the MOU, "[i]t 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)). Accordingly, Respondent violated section 7116(a)(1) and (5) of the Statute when, on or after August 26, 1998, the Respondent implemented VA Handbook 5451, Employee Recognition and Awards Procedures and Guides, and VA Directive 5451 on which it was based, without providing the Union with notice and an opportunity to bargain to the extent required by the Statute.
Failure to Respond to Bargaining Request
The record reflects that the Respondent started the bargaining process by sending to the Union a proposed change in working conditions in the form of Medical Center Policy #ESD-11-99. The Union responded with a request to bargain and a comprehensive set of bargaining proposals. [n3] The Respondent never responded to the Union's bargaining request or its bargaining proposals, and it never informed the Union that the Chief Executive Officer had decided not to implement Medical Center Policy #ESD-11-99 and had concluded that the proposed policy "just parrot[ed] the [VA] Handbook" to which it was "adhering."
The bargaining process requires on-going communications. INS, 56 FLRA at 357. While management certainly has the right to withdraw a proposed change in working conditions prior to implementation, it would frustrate the purposes of the Statute for management to withdraw a proposed change without notifying the union, especially once the bargaining process has begun. "[T]he statutory obligation to bargain includes, at a minimum, the requirement that a party respond to a bargaining request." Army and Air Force Exchange Service, McClellan Base Exchange, McClellan Air Force Base, California, 35 FLRA 764, 769 (1990); INS, 56 FLRA at 356; U.S. Department of Justice, Immigration and Naturalization Service, 55 FLRA 892, 901 (1999). It is not unreasonable to expect of a party to collective bargaining that he display a degree of diligence comparable to that which he would display in his other business affairs of importance. Cf. J.H. Rutter-Rex [ v57 p673 ] Manufacturing Company, Inc., 86 NLRB 470, 506 (1949).
The Respondent's failure to respond to the Union's bargaining request or its bargaining proposals and its failure to advise the Union that the Executive Officer had decided not to implement the proposed Medical Center Policy #ESD-11-99 amounted to a refusal to discuss or negotiate on conditions of employment in good faith, as required by section 7114(b)(1) and (2) of the Statute, and violated section 7116(a)(1) and (5) of the Statute, as alleged.
In addition to the usual cease and desist order and posting required of the Respondent, Counsel for the General Counsel requests a retroactive bargaining order and a make whole relief. Counsel for the General Counsel does not seek a status quo ante remedy because such a remedy would require the Respondent to rescind any awards it may have made to bargaining unit employees since implementing VA Handbook 5451.
The Authority has held that a retroactive bargaining order "is appropriate where a respondent's unlawful conduct has deprived the exclusive representative of an opportunity to bargain in a timely manner over negotiable conditions of employment affecting bargaining unit employees." United States Department of the Air Force, Air Force Materiel Command, 54 FLRA 914, 922 (1998)(quoting Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 51 FLRA 35, 37 (1995)(Renton FAA)). Such an order "approximate[s] the situation that would have existed had the Respondent fulfilled its statutory [bargaining] obligations." Renton FAA, 51 FLRA at 37. The Authority has also recently held that a make whole order regarding performance awards is appropriate under the Back Pay Act, 5 U.S.C. § 5596. Federal Aviation Administration, 55 FLRA 1271 (2000).
The Union's request for attorney fees for this proceeding should be initially addressed to the Authority pursuant to the Back Pay Act, 5 U.S.C. § 5596(b)(1), in the event the Authority, in its action on this decision pursuant to 5 C.F.R. § 2423.41, corrects or directs the correction of an unjustified or unwarranted personnel action. See U.S. Department of Veterans Affairs Medical Center, Allen Park, Michigan, 49 FLRA 405, 406 n.2 (1994); U.S. Customs Service, 46 FLRA 1080 (1992).
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:
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 its employees, with notice and an opportunity to negotiate to the extent consistent with the Federal Service Labor-Management Relations Statute.
(b) Failing or refusing to respond to a bargaining request from the National Association of Government Employees, SEIU, AFL-CIO, Local R3-35, and, if submitted in response to proposed policies, failing to advise the Union promptly of any substantive change in the status of the proposals.
(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order toeffectuate the purposes and policies of the Federal Service Labor-Management Relations 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 the 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. [ v57 p674 ]
(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 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 Rules and Regulations, notify the Regional Director, Boston Regional Office, in writing, within 30 days from the date of