U.S. DEPARTMENT OF VETERANS AFFAIRS BENEFITS DELIVERY CENTER PHILADELPHIA, PENNSYLVANIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 940, AFL-CIO
Office of Administrative Law Judges
U.S. DEPARTMENT OF VETERANS AFFAIRS
BENEFITS DELIVERY CENTER
Case No. BN-CA-90301
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 940, AFL-CIO
Julie C. McCarthy, Esquire Richard D. Zaiger, Esquire For the General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ Chief Administrative Law Judge
Statement of the Case
This case arose under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. § 7101 et seq. (the Statute),
and the revised Rules and Regulations of the Federal Labor
Relations Authority (FLRA/Authority), 5 C.F.R. § 2411 et
Based upon an unfair labor practice charge filed by the American Federation of Government Employees, Local 940, AFL-CIO (AFGE Local 940/Union), a Complaint and Notice of Hearing was issued on behalf of the General Counsel (GC) of the FLRA by the Regional Director of the Boston Regional Office of the FLRA. The Complaint alleges that the U.S. Department of Veterans Affairs (VA), Benefits Delivery Center, Philadelphia, Pennsylvania (VA Center/Respondent), committed an unfair labor practice in violation of 5 U.S.C. § 7116 (a)(1) and (5) of the Statute, when the VA Center implemented its decision to provide coverage for the Point of Presence Initiative ("POP"), for 24 hours a day, 7 days a week, without providing AFGE, Local 940 an opportunity to bargain to the extent required by law.
VA Center filed an answer denying the substantive
allegations of the Complaint. Respondent filed two Motions to
Dismiss, both Motions were denied.
A hearing was held in Philadelphia, Pennsylvania, at which
time all parties were afforded a full opportunity to be
represented, to be heard, to examine and cross-examine witnesses,
to introduce evidence and to argue orally. The GC of the FLRA and
the VA Center filed post-hearing briefs which have been fully
Based upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions, and recommendations.
Findings of Fact
The American Federation of Government Employees, AFL-CIO (AFGE) is the certified exclusive representative of a nationwide unit of employees appropriate for collective bargaining, including employees at the VA Center in Philadelphia, Pennsylvania. AFGE, Local 940 is the agent of AFGE for representing employees at VA Center. The Union represents approximately 750 employees and computer operators at VA Center. The VA Center serves as VA's computer center and is comprised of three divisions, the Operations Division, Network Systems Division, and the Technical Support Division.
Joseph Malizia serves as the President of the Union, a
position he has held since July 1999. Malizia served as the Union's
Executive Vice-President for approximately eight years before
becoming President. As Vice-President, Malizia handled the majority
of local negotiations. Tyrone Perkins served as the AFGE, Local 940
President from June 1, 1989 to May 30, 1999.
B. The Master Collective Bargaining Agreement
The Master Agreement (MA) between the AFGE and the
Department of Veterans Affairs was entered into on March 21,
Article 44 of the contract concerns mid-term bargaining and contains the following language in Section 1:
C. Recognizing that the Master Agreement cannot cover all aspects or provide definitive language on
each subject addressed, it is understood that mid-term agreements at all levels may include
substantive bargaining on all subjects covered in the Master Agreement, so long as they do not
conflict, interfere with, or impair implementation of the Master Agreement. However, matters that are
excluded from mid-term bargaining will be
identified within each Article.
D. As appropriate, the Union may initiate mid-term bargaining at all levels on matters affecting the
working conditions of bargaining unit
Article 20 of the parties' contract concerns hours of work
and overtime and contains the following language in Section 1:
A. A change in the administrative workweek and changes in the regularly scheduled administrative
workweek are considered changes in conditions of employment for purposes of the notice
requirement of Article 46, Rights and Responsibilities. . . .
Article 46 of the parties' contract, which is referred to in
Article 20, concerns notification of changes in conditions of
employment and contains the following language in Section 4:
The Department shall provide reasonable advance notice to the appropriate Union official(s) prior
to changing conditions of employment of bargaining unit employees. The Department agrees to
forward, along with the notice, a copy of any and all information/material relied upon to propose
the change(s) in conditions of employment. All notifications shall be in writing to the appropriate
Union official, with sufficient information to the Union for the purpose of exercising its full rights to
Negotiations of the contract began in approximately November 1994. Perkins served as a Union representative on the national negotiations team for twelve to fourteen months. John Gage, President of AFGE, Local 1923, Baltimore, Maryland, whose signature appears on the contract also served on the national negotiations team and was one of the final six union representatives at the time the contract was signed.(2)
AFGE proposed the language of the above cited Article 44,
Section 1(c), Mid-term Bargaining, to specifically address the
Authority's "covered by" doctrine that limited bargaining and the
local party's ability to address a subject that was already covered
in the existing collective bargaining agreement.(3) Gage led the debate for the union on the
covered by issue.
Perkins served on the break out team which was responsible
for Article 44. While serving as Union President under the previous
MA, his attempts to locally negotiate subjects that were already
contained in the parties' previous collective bargaining agreement
were thwarted because management asserted that there was no duty to
bargain because of the covered by doctrine. The intent of Article
44, Section 1(c) was to give local unions the right to negotiate
over subjects that were already covered in the MA. During
negotiations, AFGE made it clear that if Section 1(c) was not
included in the MA, AFGE would specifically add language in every
section of the contract to "cover just about every situation that
the Union could come up with, thereby creating a massive Master
In addition, VA was undergoing a major reorganization, in connection with Vice President Al Gore's reinventing government efforts. Under these circumstances, VA and AFGE wanted to give local unions flexibility to address the reorganization efforts as it effected their particular facility.
In order to address concerns about which, if any, articles
could not be bargained mid-term, the parties agreed in the last
sentence of Article 44, Section 1(c) of that if there was a subject
in the MA on which the parties wanted to prevent further
bargaining, there would be language contained in the specific
article to exclude bargaining of that particular subject.
C. The Point of Presence Initiative (POP)
On January 15, 1999, the Union received notice from the
Director of the VA Center, Thomas Lloyd, that the VA Center
intended to implement POP on or about February 15, 1999.
POP is a nationwide computer application, specific to the VA
and accessible via the Internet, which allows veterans and doctors
to access records of veteran's benefits, medical history, and other
files. POP requires monitoring for "crashes" 24 hours a day, 365
days a year.
Lloyd attached a schedule to the notice assigning Computer Operators from the Operations Division to cover POP, 7 days a week, 24 hours a day. The computer operators at the VA Center already worked shifts over a 24 hour period, Monday through Friday. However, they had never been assigned to a regular tour of duty on weekends. The new schedule did not specify which employees would be assigned to work POP.
AFGE, Local 940 and the employees had concerns about how the
inclusion of Saturday and Sunday in the regular workweek was going
to impact upon the computer operators. There were concerns about
general changes to employees' lifestyles and specific issues such
as baby-sitting arrangements, visiting elderly relatives, and
Therefore, on February 3, 1999, AFGE, Local 940 made a
formal request to bargain the impact and implementation of
Respondent's decision to implement POP under Article 44, of the
Mid-Term Bargaining Article of the parties' contract.(4) The parties each designated representatives
to negotiate. The parties met and exchanged proposals on three
dates, February 10, 11 and 16, 1999. On February 16, 1999, VA
Center presented AFGE, Local 940 with another proposal. After
caucusing on the issue of Federal holidays, the VA Center's Chief
Negotiator, Donald Taylor, stated that negotiations were "done,"
and he got up and walked out, even though the parties had reached
neither an agreement nor impasse. AFGE, Local 940 then requested to
resume bargaining with the help of a mediator. VA Center refused,
and on February 24, 1999, Taylor sent an e-mail to the Union
stating that the VA Center had no duty to bargain because the
matter was covered by an agreement.(5) In the e-mail, Taylor announced that the tour
of duty change for the computer operators would be effective March
Two days later, on February 26, 1999, Mazzulla sent an
e-mail to all computer operators with a copy to AFGE, Local 940.
The e-mail announced that POP was going to be implemented on March
15th, and it named the ten computer operators who had
been selected to provide coverage. The schedules of these ten
employees were permanently changed from Monday through Friday to
either Sunday through Thursday or Tuesday through
Saturday.(6) This was the first time
that AFGE, Local 940 learned the identity of those who had been
assigned to work on Saturdays and Sundays to cover POP.
Under the plan implemented by VA Center, the shift
assignments of the ten computer operators selected were permanent.
Employees could no longer socialize with family and friends for an
entire weekend. Moreover, the impact of the change also extended to
a number of practical concerns, such as caring for children or
visiting elderly parent, and, at least one employee's ability to
observe his religion was significantly curtailed since he was
required to work on Sundays.
Discussion and Conclusions of Law
A. VA Center Violated Section 7116(a)(1) and (5) of the
Statute On March 15, 1999, By Implementing the POP Initiative
Without Providing AFGE, Local 940 An Opportunity to Bargain to the
Extent Required By Law
When an agency exercises a management right under the
Statute, it still has an obligation to provide notice and an
opportunity to bargain over the procedures the agency will observe
in exercising its right under the Statute and appropriate
arrangements for employees adversely impacted by the change, if the
impact of the change on bargaining unit employees is more than
de minimis (I&I Bargaining). See U.S. Department of
Transportation, Federal Aviation Administration, Washington, DC and
Michigan Airway Facilities Sector, Belleville, Michigan, 44
FLRA 482, 492-93 (1992), and Department of Health and Human
Services, Social Security Administration, 24 FLRA 403
(1986). In the subject case VA Center changed the conditions
of employment of bargaining unit employees when it implemented its
decision requiring computer operators to work regular schedules on
weekends to cover POP. This change was implemented before the VA
Center satisfied its obligation to bargain under the Statute, and
the change had more than a de minimis impact on bargaining
Accordingly, unless the subject matter of the change was
covered by Article 20 of the parities' Master Collective Bargaining
Agreement, VA Center violated section 7116(a)(1) and (5) of the
1. The VA Center implemented POP prior to completing
On February 16, 1999, VA Center ended negotiations over its
decision to provide coverage for POP for 24 hours a day, 7 days a
week, when Taylor, VA Center's Chief Negotiator, abruptly announced
that the VA Center was "done" with negotiations. Almost
immediately, AFGE, Local 940 requested to continue negotiations
with the aid of a Federal Mediator. Taylor refused, claiming that
VA Center had no duty to bargain because the subject matter under
discussion was covered by an agreement. Thereafter, on March 15,
1999, VA Center implemented its decision when 10 of the 18 computer
operators qualified to perform this work were permanently assigned
to a new tour of duty which required them to work on weekends for
the first time. Prior to implementing this change computer
operators had worked a Monday through Friday schedule and had never
been permanently assigned to work on a weekend.
Accordingly, I conclude that the VA Center changed the
conditions of employment of bargaining unit employees and that the
change was implemented prior to the completion of bargaining.
2. The impact of the change on bargaining unit employees
was more than de minimis
The impact of the decision requiring computer operators to
provide coverage for POP 24 hours a day, 7 days a week, was more
than de minimis. The lives of bargaining unit employees were
substantially altered by the change. First, bargaining unit
employees no longer have the time that they once had to socialize
with family and friends. The impact of the change extends to
practical concerns, such as caring for children or visiting elderly
parents. In addition, as in the case of employee Raymond Wallace,
time for religious observance was greatly curtailed.
Accordingly, under Authority precedent, the VA Center's
conduct constituted a violation of section 7116(a)(1) and (5) of
the Statute. U.S. Customs Service, (Washington, DC); and U.S.
Customs Service, Northeast Region (Boston, Massachusetts), 29
FLRA 891, 898-900 (1987); OLAM Southwest Air Defense Sector
(TAC), Point Arena Air Force Station, Point Arena, California,
51 FLRA 797, 821-23 (1996).
B. The VA Center Waived Its Right to Rely on the "Covered By"
Doctrine to Defend Its Refusal to Bargain
In U.S. Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland, 47 FLRA 1004
(1993)(SSA), the FLRA stated that an agency had no duty to
bargain where the subject matter of a union's request to bargain is
covered by or contained in the parties collective bargaining
agreement. In Sacramento Air Logistics Center, McClellan Air
Force Base, California, 47 FLRA 1161 (1993), the Authority
stated that it would apply the "covered by/contained in" analysis
it established in SSA to cases involving alleged unilateral
changes in working conditions where an agency asserts that it has
no obligation to bargain over the subject because of the terms of a
negotiated agreement. The Authority described this approach as
[w]e will initially determine whether the matter is expressly contained in the collective bargaining
agreement. We also noted that we will not require an exact congruence of language, but will find
the requisite similarity if a reasonable reader would conclude that the provision settles the matter
in dispute. If we determine that the matter in dispute is not expressly contained in the collective
bargaining agreement, we will next determine whether the subject matter is inseparably bound up
with or commonly considered to be an aspect of the matter set forth in the provision such that the
negotiations will be presumed to have foreclosed further bargaining over the matter, regardless
of whether it is expressly articulated in the provision. If so, we will conclude that the subject
matter is covered by the agreement provision. Id. at
The FLRA has held, however, that parties may place
contractual limitations on their statutory rights, Internal
Revenue Service, Washington, DC, 47 FLRA 1091
(1993)(IRS), and in Social Security Administration,
Region VII, Kansas City, Missouri, 55 FLRA No. 95 (1999) and
Social Security Administration, 55 FLRA No. 62 (1999). The
FLRA made it clear that an agency may waive its statutory right to
assert "covered by" as a defense in a case involving an alleged
unilateral change in working conditions. See, U.S.
Department of Energy, Western Area Power Administration, Golden,
Colorado, 56 FLRA No. 2 (2000).
When parties negotiate limitations or conditions on the exercise of their statutory rights, the Authority has held that the "contract interpretation" test enunciated in IRS applies. Thus, the Authority must interpret the meaning of those collective bargaining clauses using the same standards and principles applied byarbitrators in interpreting contracts in both the Federal and private sectors and by the Federal courts under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The Authority in IRS emphasized that the meaning of the agreement must ultimately depend on the intent of the contracting parties. The parties' intent must be given controlling weight whether that intent is established by the language of the clause itself, by inferences drawn from the contract as a whole, or by extrinsic evidence. IRS, 47 FLRA at 1110.(7)
The relevant MA language as well as the bargaining history of those provisions makes it clear that VA Center waived its statutory right to assert "covered by" as a defense to its refusal to bargain.
The language of Article 44, Section 1 of the MA plainly
addresses the application of the "covered by" doctrine, and clearly
provides AFGE, Local 940 with the right to negotiate at the local
level over any and all matters covered in the parties' Master
Agreement as long as any matter agreed to is not inconsistent with
the Master Agreement.
Gage and Perkins were both heavily involved in the negotiations of Article 44. Their testimony makes it clear that the intent of the parties was to give the Union the right to negotiate at the local level over any and all matters covered in the contract. Gage testified that the ground work for Article 44 "covered by" waiver was set forth in Article 43, in which the Union was given the right to negotiate subjects in their local supplemental agreements, which were already covered by the contract. Gage and Perkins also explained how the parties agreed that local unions should have freedom to negotiate issues covered in the contract because of the expected local changes due to the VA's massive reorganization. The parties agreed that local facilities would benefit from freedom to negotiate at the local level. If a subject in the contract was going to be excluded from local bargaining, it would "be identified within each Article." (Article 44, Section 1). Article 20 contains no such restriction concerning tours of duty.(8) Indeed, to reach any other conclusion would render the parties' language in Article 44 meaningless and nullify the express purpose of Article 44.
VA Center argues that because Article 44, Sections 4A and
4C, dealing with local mid-term bargaining, provide that bargaining
should be conducted as "appropriate," it had no obligation to
bargain mid-term, about the implementation of POP and the changes
in the scheduled workweek. In effect, VA Center argues that this as
"appropriate" language in the MA negates the entire waiver of the
covered by defense. This interpretation turns the language of the
MA on its ear. Nothing in this language of the MA or in the
collective bargaining history justifies such a conclusion, and I
therefore, reject it.
Accordingly, I conclude that VA Center, in light of Article
44 cannot rely on the "covered by" doctrine to preclude bargaining
over management initiated mid-term changes in working conditions.
Article 44 is a clear and unmistakable waiver of the covered by
defense by VA.
1. Article 20
Further, any doubt that AFGE, Local 940 had the right to
negotiate in this case disappears upon review of Article 20. AFGE
reserved the right to bargain over changes to the administrative
workweek in Article 20, Section 1. Union Representative Raymond
Wallace cited this section in his February 1, 1999, e-mail to the
Respondent, stating in part that "After careful review of the
Master, I was advised that under Article 20, Section 1(a), these
schedules constitute a serious change to conditions of employment
in our normal work week." Indeed, Article 20, Section 1(a) concerns
general matters and states, in pertinent part, as follows:
A change in the administrative workweek and changes in the regularly scheduled administrative
workweek are considered changes in conditions of employment for purposes of the notice
requirement of Article 46, Rights and Responsibilities.
This is an obvious reference to Article 46, Section 4. That
section is entitled "Notification of Changes in Conditions of
Employment," and it guarantees the Union, at the local level, the
right to bargain over proposed changes in working conditions. In
addition, at Article 20, Section 3(f) states, in pertinent part,
that "Rotation of weekends and holidays will be on a fair and
equitable basis within a group and may be a subject for local
bargaining." In view of the fact that the change in this case can
and will involve a new workweek for bargaining unit employees from
their prior schedule and the clear statement that "Rotation of
weekends . . . may be a subject for local bargaining," it is
patently clear that the VA waived its right to assert a covered by
defense regarding the change that is the subject of this case.
In light of the foregoing, I conclude that the VA Center
violated section 7116(a)(1) and (5) of the Statute when it
unilaterally instituted the POP without affording AFGE, Local 940
an opportunity to bargain concerning the implementation of POP and
appropriate arrangements for employees adversely affected by the
1. Status quo remedy is appropriate
In determining the appropriateness of a status quo ante remedy, the Authority considers among other things: (1) whether, and when, notice was given to the union by the agency concerning the action or change decided upon; (2) whether, and when, the union requested bargaining on the procedures to be observed by the agency in implementing such action or change and/or concerning appropriate arrangements for employees adversely affected by such action or change; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. Federal Correctional Institution, 8 FLRA 604, 605-06 (1982)(FCI).
Applying the criteria set forth by the Authority in
FCI to the facts of this case, I conclude that a status
quo ante remedy is appropriate. VA Center's actions constituted
a willful failure to bargain. Thus, at the third bargaining
session, Taylor abruptly declared "we're done," and thereafter
rejected the Union's efforts to enlist the aid of a mediator. While
the VA Center based its conduct on its contention that the subject
matter of the change was covered by an agreement, the only
agreement cited by the Respondent to support its position was a
1995 MOU. Respondent's conduct suggested that VA Center knew this
position was specious because, at the hearing in this proceeding,
VA Center relied on Article 20 of the parties' current MA and did
not mention or introduce into evidence any 1995 MOU.
On the other hand, AFGE, Local 940's approach to the
announced intention to provide coverage for POP 24 hours a day, 7
days a week, was responsible. It immediately requested negotiations
and when negotiations were not successful, it requested to continue
negotiations with the aid of a mediator.
Finally, the impact of the change on bargaining unit
employees was immediate and substantial, given the disruption a
change of this sort has on the quality of life of a typical
2. A status quo ante remedy will not disrupt or impair the efficiency and effectiveness of the
According to Mazzulla, if the VA Center were ordered to return employees to their old schedules, it would not be able to staff on the weekends as required to do so. However, Mazzulla admitted that there would be nothing to prevent the VA Center from covering weekends by utilizing overtime or volunteers on a rotating basis to provide proper coverage.
Further, the Respondent would not be in any risk of "losing" POP(9) as long as it was staffed. In this regard, the VA Center has a pool of at least 18 computer operators who are qualified to cover POP on weekends and only 10 of these employees have been permanently assigned. Moreover, the record establishes that computer operators have actually been working more overtime on weekends since POP was implemented because of the relatively high years of Federal service and seniority of a number of the computer operators permanently assigned to work weekends. Accordingly, I conclude that the record does not establish that a status quo ante remedy would impair or disrupt POP.
3. Other requested relief
In addition to ordering the VA Center to return to the
status quo, it is appropriate to order VA Center to cease
and desist from engaging in conduct determined to be unlawful and
to post an appropriate notice to employees. The notice should be
posted at its facility in Philadelphia, Pennsylvania, and signed by
the Director of the facility.
Having founded that the VA Center violated section
7116(a)(1) and (5) of the Statute, it is recommended that the
Authority adopt 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, the U.S. Department of Veterans
Affairs, Benefits Delivery Center, Philadelphia, Pennsylvania,
1. Cease and desist from:
(a) Implementing a decision to provide coverage for
the POP Initiative for 24 hours a day, 7 days a week without
bargaining with the Union concerning the impact and implementation
of the POP Initiative, including the weekend scheduling of computer
(b) Refusing to bargain with the American Federation
of Government Employees, Local 940, over the impact and
implementation of any decision to implement POP.
(c) In any like or related manner, interfering with,
restraining, or coercing bargaining unit employees in the exercise
of their rights assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Rescind the change in the work schedules of
Computer Operators that became effective on March 15, 1999, with
the implementation of the POP Initiative, and return to the
preceding schedule which had been in effect.
(b) Notify, and upon request, bargain with the
American Federation of Government Employees, Local 940, concerning
the impact and implementation of the POP Initiative including any
proposed change in employees' work schedules.
(c) Post at its Benefits Delivery Center,
Philadelphia, Pennsylvania, were bargaining unit employees
represented by the American Federation of Government Employees,
Local 940 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, Thomas Lloyd, 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 2423.43(e) of the Authority's Rules and Regulations, notify the Regional Director, Boston Region, Fed