[ v20 p512 ]
20:0512(62)CA
The decision of the Authority follows:
20 FLRA No. 62
DEFENSE LOGISTICS AGENCY
DEFENSE GENERAL SUPPLY CENTER
RICHMOND, VIRGINIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2047, AFL-CIO
Charging Party
Case Nos. 4-CA-30515 and 4-CA-30519
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(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
parties' stipulation of facts, accompanying exhibits, and contentions of
the parties, the Authority finds:
The consolidated complaint herein alleges that the Respondent,
Defense Logistics Agency, Defense General Supply Center, Richmond,
Virginia, violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute), as amended, /1/ when
it unilaterally removed from flexitime three employees in the Base
Operations Division of its Installation Services and all employees in
the Facility Engineering Division of its Installation Services, without
providing the designated agent of the employees' exclusive
representative, the American Federation of Government Employees, Local
2047, AFL-CIO (the Union), an opportunity to negotiate concerning these
decisions. The record indicates that the Union is affiliated with the
American Federation of Government Employees, AFL-CIO (AFGE), which is
the exclusive representative of a consolidated unit of non-professional
employees of the Defense Logistics Agency (DLA), including those located
at the Respondent's Richmond, Virginia facility. The record further
indicates that the Defense General Supply Center (DGSC) is a Primary
Level Field Activity (PLFA) of DLA.
The stipulated record shows that since August 12, 1980, AFGE and DLA
have been parties to a master collective bargaining agreement (MA)
effective for a three year period and which remains in effect pending
negotiations and execution of a successor agreement. As here relevant,
Article 20, Section 4 of the MA provides that "installation of flexitime
. . . may be negotiated by the PLFA and the DLA Council Local." The MA
further provides in Article 44, Section 2 that "(a)ll local
labor-management agreements currently in effect which do not conflict
with this Master Agreement shall remain in full force and effect until a
supplementary agreement has been negotiated." The record indicates that
the Respondent and the Union have been parties to a local agreement
which has been in effect since December 1, 1976 and which acts as a
supplement to the MA. This local agreement provides in pertinent part
that "(i)n the administration of all matters covered by this agreement,
officials and employees are governed by . . . published Agency policies
and regulations in existence at the time the agreement was approved(.)"
(Article VI, Section 1.a.).
Prior to the effective date of the local agreement, DLA authorized
its PLFAs, including the Respondent, DGSC, to use flexible work
schedules when considered operationally beneficial. As a result of this
authorization, an ad hoc committee, which included representatives of
the Union, was formed at the Respondent's facility to develop procedures
for administering flexitime. The findings and recommendations of this
committee were incorporated into DGSC Regulation 1422.3, entitled
"Flexitime," which provided that "Directors/Major Office Chiefs will . .
. determine what positions will not participate in flexitime." This
regulation was in effect from May 1976 to June 1979. At that time, the
DGSC regulation was superseded by DGSC Supplement 1 to DLA Regulation
1422.1, entitled "Hours of Duty." The policy of permitting Directors and
Major Office Chiefs to determine what positions will not participate in
flexitime, as set forth initially in DGSC Regulation 1422.3, was also
contained in DGSC Supplement 1 to DLA Regulation 1422.1. The supplement
to the DLA regulation as well as the DLA regulation itself remain
applicable to the administration of flexitime work schedules at the
Respondent's facility.
In May 1983, three employees in the Base Operations Section, Supply
Division of Respondent's Installation Services were notified that they
would be removed from flexitime schedules. At no time prior to the
issuance of these notifications did the Respondent provide the Union
with notice and an opportunity to bargain concerning the decision to
effect such a change. Thereafter, the Executive Vice President of the
Union requested that the Respondent negotiate concerning the change in
flexitime eligibility, and asserted that restoration of flexitime to the
employees concerned was a prerequisite to the start of negotiations.
The Respondent's Director of Installation Services refused to bargain
concerning this decision, which was thereafter implemented.
Subsequently, on July 5, 1983, all employees in the Facilities
Engineering Division of Respondent's Installation Services were notified
that they would be removed from flexitime schedules. The President of
the Union requested that the Respondent bargain concerning its decision,
at which time the Respondent's Deputy Director of Installation Services
refused to negotiate, and the change was implemented.
The Respondent contends, inter alia, that the Union waived its right
to negotiate concerning management's decision to remove employees from
flexitime, and, alternatively, that the issues herein involve differing
and arguable interpretations of the parties' collective bargaining
agreements which should be resolved through the parties' negotiated
grievance procedure. On the other hand, the General Counsel argues,
inter alia, that there is no evidence that the Union clearly and
unmistakably waived its statutory right to bargain over the Respondent's
decision to remove employees from flexitime, and that the Respondent was
not free to change the hours of work of employees on an established
shift without affording the Union the opportunity to bargain concerning
its decision.
The Authority concludes that the Union clearly and unmistakably
waived its right to bargain over the Respondent's decision to remove
employees from flexitime, and, accordingly, the consolidated complaint
herein shall be dismissed. /2/ In so concluding, the Authority notes
that the MA binding on the parties herein provides that all local
labor-management agreements not in conflict with the MA remain in effect
until a supplementary agreement has been negotiated. In this
connection, the local agreement which acts as a supplement to the MA
provides that the Respondent and the Union are to be governed by
published agency policies and regulations in existence at the time the
agreement was approved, thereby incorporating the flexitime policy set
forth in DGSC Regulation 1422.3 into the terms of the local agreement.
By removing unit employees from flexitime work schedules, the Respondent
was merely applying the terms of the existing flexitime policy which
authorized Directors and Major Office Chiefs to determine what positions
would not participate in flexitime. In this regard, the Authority notes
that on three separate occasions prior to the actions giving rise to the
consolidated complaint herein-- on April 30, 1980, January 31, 1982, and
July 15, 1982, respectively-- the Union acquiesced in the Respondent's
unilateral removal of employees in its Directorate of Storage and
Transportation from flexitime. As the General Counsel has not
established that the local agreement incorporating this policy was in
conflict with the MA, the Authority finds that the terms of the local
agreement were binding on the Respondent and the Union. The Authority
concludes that by removing its employees from flexitime, the Respondent
was merely applying the terms of the parties' existing flexitime policy,
as incorporated in the local agreement, concerning which it had no duty
to bargain. /3/
ORDER
IT IS ORDERED that the consolidated complaint in Case Nos. 4-CA-30515
and 4-CA-30519 be, and it hereby is, dismissed.
Issued, Washington, D.C., October 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) of the Statute provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ See, e.g., U.S. Library of Congress, 18 FLRA No. 29(1985). See
also Department of the Treasury, United States Customs Service, Region
I, Boston, Massachusetts, and St. Albans, Vermont District Office, 10
FLRA 566(1982) and Department of the Air Force, Scott Air Force Base,
Illinois, 5 FLRA 9(1981).
/3/ The Authority finds it unnecessary to pass on whether the
Respondent was obligated to bargain over procedures and appropriate
arrangements for unit employees adversely affected by its decision to
remove the affected employees from flexitime inasmuch as the complaint
does not allege a refusal to bargain in this regard.