Veterans Administration Medical Center, Northport and NFFE Local 387 (Authority decision, December 23, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice complaint under 5 U.S.C. § 7116. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Northport VA Medical Center refused to bargain with NFFE Local 387 over the scope of its negotiated grievance procedure. It argued that an appeal and a reconsideration request excused compliance with an earlier Authority negotiability ruling. The Authority found no stay had been ordered and held that the refusal violated the federal labor statute. It ordered the medical center to bargain on request and post a notice.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(1).
• Outcome: Unfair labor practice found; bargaining and notice ordered.
• Key point: An appeal or reconsideration request does not itself stay an Authority order.

Full text (FLRA public release)

[ v10 p675 ]

10:0675(114)CA

The decision of the Authority follows:

10 FLRA No. 114

VETERANS ADMINISTRATION MEDICAL CENTER,
NORTHPORT, NEW YORK
Respondent

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 387, INDEPENDENT
Charging Party

Case No. 2-CA-729

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1 of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the stipulation of facts and the parties' contentions, the Authority finds:

As stipulated by the parties, the issue before the Authority is whether Respondent's refusal on or about November 5, 1980, and at all times thereafter, to negotiate in good faith with the Charging Party on the scope of the negotiated grievance procedure, notwithstanding a determination by the Federal Labor Relations Authority in American Federation of Government Employees, Local 3669, AFL-CIO and Veterans Administration Medical Center, Minneapolis, Minnesota, 4 FLRA No. 53 (1980), appeal docketed, No. 80-2081 (8th Cir. Nov. 20, 1980), /1/ that said subject is within the duty to bargain violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). Although admitting such refusal, the Respondent contends that it did not violate the Statute since such refusal occurred during the pendency of a judicial appeal and a request for reconsideration of that decision. The Authority finds such contention to be without merit. Thus, section 7123(c) of the Statute states in pertinent part that "(t)he filing of a petition under subsection (a) or (b) of this section shall not operate as a stay of the Authority's order unless the court specifically orders the stay." No stay has been ordered. Furthermore, section 2429.17 of the Authority's Rules and Regulations, relied upon by the Respondent in its brief, provides that the filing of a motion for reconsideration with the Authority shall not operate as a stay of the order. /2/

The issue presented herein is substantially identical to that found in Department of the Air Force, U.S. Air Force Academy, 6 FLRA No. 100 (1981), appeal docketed, No. 81-244 (10th cir. Nov. 3, 1981) in which the Authority found where the negotiability of a proposal is established by Authority precedent, it is a refusal to bargain in good faith in violation of section 7116(a)(5) of the Statute to maintain that the proposal is non negotiable. For the reasons set forth in that case, the Authority finds that the Respondent has violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate with regard to a proposal concerning the scope of the negotiated grievance procedure, a matter previously determined to be negotiable by the Authority. See also, American Federation of Government Employees, Interdepartmental Local 3723, AFL-CIO, 9 FLRA No. 93 (1982), appeal docketed, No. 82-2182 (D.C. Cir. 1982).

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Veterans Administration Medical Center, Northport, New York, shall:

1. Cease and desist from:

(a) Refusing to negotiate with regard to a proposal concerning the scope of the negotiated grievance procedure, made in the course of negotiations by the National Federation of Federal Employees, Local 387, Independent, which involves a matter previously determined to be negotiable by the Federal Labor Relations Authority.

(b) In any like or related matter interfering with, restraining, or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Upon request of the National Federation of Federal Employees, Local 387, Independent, negotiate, to the extent consonant with law and regulations, with respect to a proposal concerning the scope of the negotiated grievance procedure.

(b) Post at the Veterans Administration Medical Center, Northport, New York facility, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Director of such facility, or his designee, and shall be posted and maintained by this official for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices are customarily posted. The Director shall take reasonable steps to insure that such Notices are not altered, defaced or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., December 23, 1982

Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY

NOTICE TO ALL EMPLOYEES

PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to negotiate with regard to a proposal concerning the scope of the negotiated grievance procedure, made in the course of negotiations by the National Federation of Federal Employees, Local 387, Independent, which involves a matter previously determined to be negotiable by the Federal Labor Relations Authority.

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

WE WILL upon request of the National Federation of Federal Employees, Local 387, Independent, negotiate, to the extent consonant with law and regulations, with respect to a proposal concerning the scope of the negotiated grievance procedure. (Agency or Activity)

Dated: . . . By: (Signature)

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 question concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region II, Federal Labor Relations Authority, whose address is: Room 24-102, 26 Federal Plaza, New York, New York 10278 and whose telephone number is: (212) 264-4934.

--------------- FOOTNOTES$ ---------------

/1/ In that case the Authority found negotiable proposals to expand the scope of the negotiated grievance procedure to include disciplinary and adverse actions taken against Veterans Administration Department of Medicine and Surgery employees hired under title 38 of the United States Code.

/2/ The motion for reconsideration in that case was denied by the Authority on April 28, 1982.