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  • United States, Department of Veterans Affairs, Washington Regional Office (Respondent) and American Federation of Government Employees, Local 25, AFL-CIO (Charging Party)

United States, Department of Veterans Affairs, Washington Regional Office (Respondent) and American Federation of Government Employees, Local 25, AFL-CIO (Charging Party)

[ v58 p261 ]

58 FLRA No. 61

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS,
WASHINGTON REGIONAL OFFICE
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 25, AFL-CIO
(Charging Party)

WA-CA-00229

_____

DECISION AND ORDER

December 23, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel filed an opposition to the exceptions.

      The Judge concluded that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing an operations policy without completing bargaining.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order. In so doing, we reject the Respondent's claim that its "sincere resolve" to reach an agreement during bargaining demonstrates that it fulfilled its duty to bargain in good faith under the Statute. Although parties must approach negotiations with a "sincere resolve" to reach an agreement, see § 7114(b)(1), an agency, nevertheless, violates the Statute by changing conditions of employment without completing bargaining. [n1]  See, e.g., Army and Air Force Exchange Serv., 52 FLRA 290 (1996). Here, the Judge found -- and the record demonstrates -- that the Respondent implemented the disputed policy without completing bargaining. [n2] 

      We also reject the Respondent's argument that the Judge erred in finding a violation of § 7116(a)(1) of the Statute. A violation of § 7116(a)(1) is commonly found as a "derivative violation," that is, an interference with employee rights that flows from another violation under the Statute. See, e.g., United States Dep't of Defense, Dep't of the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin Air Force Base, Tex., 18 FLRA 142, 167 (1985). It is well established that an agency commits a derivative violation of § 7116(a)(1) by violating § 7116(a)(5). See Dep't of the Air Force, Scott Air Force Base, Ill., 5 FLRA 9, 23 (1981). Thus, the Judge's finding that the Respondent violated § 7116(a)(1) of the Statute properly follows from his finding a violation of § 7116(a)(5).

      Finally, we reject the Respondent's claim that the Judge erred in finding a violation because, assuming that the Charging Party objected to the disputed policy, the objection was not made to the appropriate representative of the Respondent. In this regard, even if the objection was made to the wrong representative, the Respondent has not demonstrated the relevance of that fact to the issue of whether the parties reached an agreement. In fact, any objection by the Charging Party supports the Judge's conclusion that the parties did not reach a meeting of the minds.

II.     Order

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the United States Department of Veterans Affairs, Washington Regional Office, shall:

      1. Cease and desist from:

      (a) Failing and refusing to bargain with the American Federation of Government Employees, Local 25, AFL-CIO, the exclusive representative of a unit of [ v58 p262 ] employees, over the terms and implementation of the Veterans Service Center Operations Policy.

      (b) 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 actions in order to effectuate the purposes and policies of the Statute:

      (a) Rescind the Veterans Service Center Operations Policy implemented on January 18, 2000, to the extent that it applies to employees represented by the American Federation of Government Employees, Local 25, AFL-CIO.

      (b) Notify and upon request bargain with the American Federation of Government Employees, Local 25, AFL-CIO, over the terms and implementation of the Veterans Service Center Operations Policy.

      (c) Make whole all employees represented by the American Federation of Government Employees, Local 25, AFL-CIO, who were adversely affected by the implementation of the Veterans Service Center Operations Policy on January 18, 2000.

      (d) Post at its facilities where bargaining unit employees of the United States Department of Veterans Affairs, Washington Regional Office 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 Director, United States Department of Veterans Affairs, Washington Regional Office, 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.

      (e) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Washington Regional Office, 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 Authority has found that the United States Department of Veterans Affairs, Washington Regional Office, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT fail and refuse to bargain with the American Federation of Government Employees, Local 25, AFL- CIO, the exclusive representative of a unit of employees, over the terms and implementation of the Veterans Service Center Operations Policy.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL rescind the Veterans Service Center Operations Policy issued on January 18, 2000, to the extent that it applies to employees represented by the American Federation of Government Employees, Local 25, AFL-CIO.

WE WILL notify and upon request bargain with the American Federation of Government Employees, Local 25, AFL-CIO, over the terms and implementation of the Veterans Service Center Operations Policy.

WE WILL make whole all employees represented by the American Federation of Government Employees, Local 25, AFL-CIO, who were adversely affected by the implementation of the Veterans Service Center Operations Policy on January 18, 2000.

      _______________________
United States Department
of Veterans Affairs
Washington Regional Office

Date:_________ By:_________________________

      (Signature) (Title)

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 questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Washington Regional Office, whose address is: Tech World Plaza, 800 K Street, NW., Suite 910N, Washington, D.C. 20001, and whose telephone number is: (202) 482-6702.

File 1: Authority's Decision in 58 FLRA No. 61
File 2: ALJ's Decision

Footnote # 1 for 58 FLRA No. 61 - Authority's Decision

   There are limited circumstances, not relevant here, where an agency does not violate its duty to bargain in good faith by changing the conditions of employment prior to the completion of bargaining. For example, an agency may implement a change before bargaining is complete where there is no duty to bargain over the change or where the change is necessary to correct an unlawful practice. See United States Immigration and Naturalization Serv., Wash., D.C., 55 FLRA 69, 73 n.8 (1999).

Footnote # 2 for 58 FLRA No. 61 - Authority's Decision

   We note that the Respondent disputes the Judge's factual finding in this regard, which was based, in part, on his credibility determination. We will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. See United States Dep't of the Treasury, IRS, Austin Compliance Center, Austin, Tex., 51 FLRA 629 (1995), and cases cited therein. We have examined the record and find no basis for reversing the Judge's credibility determination.