Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina (Respondent) and National Association of Government Employees, Local R5-136, SEIU, AFL-CIO (Charging Party/Union)

[ v60 p446 ]

60 FLRA No. 87

DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
(Respondent)

and

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R5-136, SEIU, AFL-CIO
(Charging Party/Union)

AT-CA-00101
AT-CA-00198
(58 FLRA 432 (2003))

_____

DECISION AND ORDER
ON REMAND

November 30, 2004

_____

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

I.     Statement of the Case

      This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in National Association of Government Employees, Local R5-136 v. FLRA, 363 F.3d 468 (D.C. Cir. 2004) (NAGE v. FLRA). The case concerns two consolidated unfair labor practice (ULP) complaints -- Case Nos. AT-CA-00101 and AT-CA-00198. The complaint in Case No. AT-CA-00101 alleges that the Respondent (Medical Center) violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain in good faith over the Union's proposals concerning parking at the facility; by declaring that no further action was required on these proposals; and by declaring that the Respondent intended to proceed with proposed changes in parking without negotiation. In Case No. AT-CA-00198, the complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Statute by unilaterally changing a condition of employment by permitting patients to park in an employee parking lot. In both cases, the Authority held that the Respondent did not violate the Statute as alleged and dismissed the complaints. Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, 58 FLRA 432 (2003) (Member Pope dissenting) (VA). The court reversed the Authority's determination in Case No. AT-CA-00101 that the Respondent did not violate the Statute as alleged and upheld the Authority's order in Case No. AT-CA-00198 dismissing the complaint.

      Consistent with the court's decision discussed below, we conclude that in Case No. AT-CA-00101, the Respondent violated § 7116(a)(1) and (5) of the Statute as alleged. [n1] 

II.     Background

      With respect to Case No. AT-CA-00101, the court found, for reasons stated fully in its opinion, that the Medical Center implemented the proposed changes without ever bargaining over the Union's proposals, and by doing so, the Medical Center violated the collective bargaining agreement (CBA) and committed a ULP under § 7116(a)(1) and (5) of the Statute by refusing to bargain in good faith over a condition of employment.

      Accordingly, the court granted the Union's petition for review in part and set aside that portion of the Authority's order that pertained to this complaint.

III.     Analysis and Conclusions

      Consistent with the court's opinion discussed above, we find that the Respondent implemented the proposed changes without ever bargaining over the Union's proposals and, by doing so, violated the CBA and § 7116(a)(1) and (5) by refusing to bargain in good faith over a condition of employment. Accordingly, we find that the Respondent violated § 7116(a)(1) and (5) of the Statute by refusing to negotiate over the Union's timely submitted proposals.

      With regard to the remedy to address the violations of the Statute found in this case, we adopt the Judge's proposed order recommending, among other things, a status quo ante remedy, noting that the Respondent did not except to the remedy and that compliance proceedings are available as necessary to resolve disputes involving the Respondent's ability to implement the status quo ante remedy[n2] 

IV.     Order

      Pursuant to section 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service [ v60 p447 ] Labor-Management Relations Statute, the Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina shall:

      1.      Cease and desist from:

           (a)      Refusing to bargain in good faith with the National Association of Government Employees, Local R5-136, SEIU, AFL-CIO, the exclusive representative of certain employees, concerning employee parking.

           (b)      In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights under the Federal Service Labor-Management Relations Statute.

      2.      Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)      Upon request, bargain in good faith with the National Association of Government Employees, Local R5-136, SEIU, AFL-CIO, to the extent required by law, concerning employee parking.

           (b)      Rescind any changes to parking policy or practice along Bravo Street.

           (c)      Post at its facilities 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, Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their employees are customarily posted. Rea