American Federation of Government Employees, Local 491, AFL-CIO (Union) and Veterans Administration Medical Center, Bath, New York (Agency) (Authority decision, September 29, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A union disputed a Bath VA medical center policy ending free noontime meals for certain medical officers. The agency agreed to bargain over impact and implementation, but the union submitted no specific proposal for a negotiability ruling. The Authority found that the alleged unilateral change and refusal to bargain belonged in an unfair labor practice proceeding. It dismissed the appeal without prejudice to a later proper petition or the pending charge.

Decision snapshot

• Authority: 5 U.S.C. § 7117, 5 U.S.C. § 7118.
• Outcome: Negotiability appeal dismissed without prejudice; meal-policy merits not decided.
• Key point: A negotiability appeal required a specific proposal.

Full text (FLRA public release)

[ v04 p358 ]

04:0358(45)NG

The decision of the Authority follows:

4 FLRA No. 45

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 491
Union

and

VETERANS ADMINISTRATION MEDICAL CENTER,
BATH, NEW YORK
Agency

Case No. O-NG-264

DECISION AND ORDER ON NEGOTIABILITY APPEAL

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).

THE RECORD IN THIS CASE SHOWS THAT IN 1971 THE VETERANS
ADMINISTRATION ESTABLISHED A POLICY OF NOT PROVIDING FREE NOONTIME MEANS
TO MEDICAL OFFICERS OF THE DAY DURING THE STANDARD 8:00 A.M.-- 4:30
P.M., MONDAY THROUGH FRIDAY WORKWEEK. THIS POLICY WAS NOT IMPLEMENTED
BY THE MEDICAL CENTER, BATH, N.Y. THE MEDICAL CENTER WAS INSTRUCTED TO
DO SO IN 1979 BY THE VETERANS ADMINISTRATION WITH THE ISSUANCE OF A
PROFESSIONAL LETTER. PURSUANT THERETO, THE DIRECTOR OF THE MEDICAL
CENTER ISSUED A MEMORANDUM DATED JANUARY 11, 1980, IMPLEMENTING THE
AFOREMENTIONED POLICY. IN THIS CONNECTION, IT APPEARS THAT THE PARTIES
ARE IN DISAGREEMENT CONCERNING WHETHER MEDICAL OFFICERS OF THE DAY ARE
ASSIGNED TO STANDARD (9 HOUR) OR IRREGULAR (24 HOUR) SHIFTS FOR PURPOSES
OF THE POLICY.

THE UNION MADE A REQUEST TO NEGOTIATE WITH THE AGENCY ON THE
DECISION, IMPACT AND IMPLEMENTATION OF THE NON-AUTHORIZATION OF FREE
NOONTIME MEALS TO THE MEDICAL OFFICERS OF THE DAY DURING THE STANDARD
WORKWEEK. THE AGENCY AGREED TO NEGOTIATE WITH THE UNION ON THE IMPACT
AND IMPLEMENTATION, BUT NOT ITS DECISION CONCERNING THE
NON-AUTHORIZATION OF FREE NOONTIME MEALS DURING THE STANDARD WORKWEEK.
DURING THE NEGOTIATIONS, HOWEVER, THE UNION DID NOT PRESENT A SPECIFIC
PROPOSAL TO THE AGENCY, AND IN CONNECTION WITH THE NEGOTIATIONS, HAS
FILED AN UNFAIR LABOR PRACTICE CHARGE.

THIS APPEAL, WHICH SEEKS A NEGOTIABILITY DECISION CONCERNING AN
AGENCY INITIATED CHANGE WITHOUT PRESENTING A SPECIFIC UNION PROPOSAL,
BEARS NO MATERIAL DIFFERENCE FROM THE APPEAL WHICH WAS BEFORE THE
AUTHORITY IN ASSOCIATION OF CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE
OF ALABAMA NATIONAL GUARD, 2 FLRA NO. 39(1979). IN THAT CASE, THE
AUTHORITY DETERMINED THAT A NEGOTIABILITY APPEAL WHICH DID NOT PRESENT A
PROPOSAL SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM AND CONTENT AS TO
PERMIT THE AUTHORITY TO RENDER A NEGOTIABILITY DECISION THEREON DID NOT
MEET THE CONDITIONS FOR REVIEW SET FORTH IN SECTION 7117 OF THE STATUTE
AND SECTION 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS (5 C.F.R.
2424.1), AND CONSEQUENTLY MUST BE DISMISSED.

ADDITIONALLY, INSOFAR AS IT APPEARS THAT THE ESSENCE OF THE UNION'S
APPEAL IN THE PRESENT CASE RELATES TO AN ALLEGED UNILATERAL CHANGE IN
WORKING CONDITIONS AND A REFUSAL TO BARGAIN WITH RESPECT THERETO, THE
PROPER FORUM IN WHICH TO RAISE THIS ISSUE IS NOT A NEGOTIABILITY APPEAL,
BUT RATHER WOULD BE AN UNFAIR LABOR PRACTICE PROCEEDING PURSUANT TO
SECTION 7118 OF THE STATUTE. IN THIS REGARD, RESOLUTION OF THE INSTANT
DISPUTE IS DEPENDENT UPON THE RESOLUTION OF FACTUAL ISSUES RELATED TO
THE PARTIES' CONDUCT. SUCH FACTUAL DETERMINATIONS CAN BEST BE
ACCOMPLISHED THROUGH USE OF THE INVESTIGATORY AND FORMAL HEARING
PROCEDURES SET FORTH IN PART 2423 OF THE AUTHORITY'S RULES AND
REGULATIONS WHICH GOVERN UNFAIR LABOR PRACTICE PROCEEDINGS (5 CFR 2423.1
ET SEQ.). (SEE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 95
AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, MIDWEST
REGION, 2 FLRA NO. 65(1980).)

ACCORDINGLY, FOR THE REASONS SET FORTH IN THE STATE OF ALABAMA
NATIONAL GUARD CASE, SUPRA, AND BECAUSE OF THE PRESENCE OF UNFAIR LABOR
PRACTICE ISSUES, IS IS ORDERED THAT THE UNION'S APPEAL BE DISMISSED. IT
IS FURTHER ORDERED THAT SUCH DISMISSAL SHALL BE WITHOUT PREJUDICE TO
EITHER: THE RENEWAL OF ITS CONTENTION THAT THE MATTERS IN DISPUTE, AS
PROPOSED TO BE NEGOTIATED, ARE NEGOTIABLE UNDER THE STATUTE IN A
PETITION DULY FILED WITH THE AUTHORITY; OR TO THE FURTHER PROCESSING OF
THE UNION'S PENDING UNFAIR LABOR PRACTICE CHARGE.

ISSUED, WASHINGTON, D.C., SEPTEMBER 29, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

CERTIFICATE OF SERVICE

COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED:

MR. RONALD A. GUNTON

CHIEF NEGOTIATOR

AFGE LOCAL 491

P.O. BOX 491

BATH, NEW YORK 14810

MR. FREDERIC L. CONWAY

ACTING DEPUTY ASSISTANT

GENERAL COUNSEL

VETERANS ADMINISTRATION

810 VERMONT AVENUE, N.W.

WASHINGTON, D.C. 20420