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57 FLRA No. 132
U.S. Dept. of Veteran Affairs, Veterans Affairs Medical Center, Coatesville, Pennsylvania and NAGE, Local R3-35, SEIU, AFL-CIO, Case No. BN-CA-90497 (Decided January 8, 2002)
The Judge found that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it implemented VA Directive 5451, Employees Recognition and Awards, and VA Handbook 5451, Employee Recognition and Awards Procedures and Guides without providing the Union with notice and an opportunity to bargain to the extent required by the Statute. The Judge also found that the Respondent violated § 7116(a)(1) and (5) of the Statute by failing to respond to the Union's bargaining request concerning proposed Medical Center Policy #ESD-11-99, and by failing to advise the Union it had decided not to implement the proposed policy. After considering the Judge's decision and the entire record, the Authority denied the Respondent's exceptions and adopted the Judge's findings, conclusions and recommended Order to the extent consistent with this decision.
Preliminary, the Authority concluded that the exceptions complied with § 2423.40(a) of its regulations. However, certain information contained in the exceptions were not considered by the Authority because the Authority will not consider evidence that was not presented in the proceedings before the Administrative Law Judge, as per section 2429.5 of its regulations.
The Authority also found that the ULP charge which gave rise to the complaint was not barred by a previously filed grievance. It noted that exceptions that challenge the Authority's jurisdiction under § 7116(d) of the Statute must be addressed although not raised by the Respondent. The Authority stated that in determining whether a ULP and a grievance involve the same issue, the Authority focuses on whether the ULP arose from the same set of factual circumstances as the grievance and whether the theories advanced in support of the ULP and the grievance are substantially similar. In this regard, the Authority found, in agreement with the Judge, that the evidence was insufficient to establish that the ULP arose from the same set of factual circumstances as the grievance and to determine that the theories advanced in support of the ULP and the grievance are substantially similar. Consequently, the ULP charge was not barred by a previously filed grievance. As to the merits, the Authority found that the Judge did not err by finding that the Respondent violated § 7116(a)(1) and (5) of the Statute when it implemented an agency directive and handbook concerning awards without providing the Union notice and an opportunity to bargain to the extent required by the statute.