[ v20 p516 ]
20:0516(63)CA
The decision of the Authority follows:
20 FLRA No. 63
DEFENSE GENERAL SUPPLY CENTER
RICHMOND, VIRGINIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2047, AFL-CIO
Charging Party
Case No. 34-CA-30226
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, based on a stipulated record, finding that
the Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in its
entirety. Thereafter, the Charging Party filed exceptions to the
Judge's Decision and the Respondent filed an opposition. /1/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), as amended, the Authority has considered the
Judge's Decision and the entire record, and hereby adopts the Judge's
findings, conclusions and recommended Order, as modified herein.
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Statute by failing and refusing to negotiate with the
American Federation of Government Employees, Local 2047, AFL-CIO,
concerning the introduction of flexitime for bargaining unit employees
in one of the Respondent's subdivisions. The Judge recommended
dismissal of the complaint on the basis that issues raised therein
involved questions of contract interpretation. The Authority agrees
with the Judge's conclusion that the complaint should be dismissed. In
so concluding, the Authority notes that the Master Agreement (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. The record indicates that,
as a result of the findings and recommendations of an ad hoc committee,
which included Union representatives, a flexitime policy was established
at the Respondent's facility which has been in effect since May 11,
1976. This policy provides that "Directors/Major Office Chiefs will . .
. determine what positions will not participate in flexitime." The
record further shows that the flexitime policy is incorporated into the
parties' local collective bargaining agreement. The record fails to
establish that this agreement is in conflict with the MA. In this
regard, although the MA authorizes local negotiations over the
installation of flexitime, as noted, the MA also provides that the
parties' local agreement, which incorporates the current flexitime
policy, remains in effect until a supplementary local agreement has been
negotiated. The record clearly demonstrates that by its request to
bargain, the Union was not trying to negotiate a new flexitime agreement
but merely was attempting to revise the coverage of its employees under
the parties' existing local agreement. Therefore, in denying flexitime
to certain employees as requested by the Union, the Respondent was
merely applying the terms of the parties' existing flexitime policy,
and, by entering into such policy embodied in the local agreement, the
Union clearly and unmistakably waived its right to bargain over the
introduction of flexitime for previously uncovered employees. See
Defense Logistics Agency, Defense General Supply Center, Richmond,
Virginia, 20 FLRA No. 62(1985). Accordingly, the Authority concludes
that the Respondent's refusal to bargain herein did not constitute a
violation of section 7116(a)(1) and (5) of the Statute. Moreover, to
the extent that the Union sought to bargain over the introduction of
flexitime for previously uncovered unit employees during the term of an
existing agreement, the Authority has previously held that agency
management is not obligated to bargain over union-initiated proposals
during the term of existing agreements which are not related to changes
initiated by the agency. See Internal Revenue Service, 17 FLRA No.
103(1985), petition for review filed sub nom. National Treasury
Employees Union v. FLRA, No. 85-1361 (D.C. Cir. June 14, 1985). See
also Missouri National Guard, Office of the Adjutant General, Jefferson
City, Missouri, 18 FLRA No. 44(1985).
ORDER
IT IS ORDERED that the complaint in Case No. 34-CA-30226 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
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 34-CA-30226
William C. Walker, Esquire
For the Respondent
Bruce D. Rosenstein, Esquire
Wendy B. Finck, Esquire
For the General Counsel
Richard M. Earl, Sr., Esquire
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter referred to as "the
Statute"), and the Rules and Regulations issued thereunder.
The case was referred to the Office of Administrative Law Judges on a
stipulated record. The complaint alleged that on or about December 15,
1982, the Defense General Supply Center (DGSC), Richmond, Virginia
(Respondent), a Primary Level Field Activity (PLFA), of the Defense
Logistics Agency, violated Sections 7116(a)(1) and (5) of the Statute by
failing and refusing to negotiate with the American Federation of
Government Employees, Local 2047, AFL-CIO (Charging Party or Union),
concerning the introduction of flexitime for bargaining unit employees
in the Respondent's Processing and Final Distribution Section, Shipment
Planning Branch, Transportation Warehouse 61, Directorate of Storage and
Transportation.
Counsel representing the Respondent argues that the Union waived the
right to negotiate concerning flexitime; and further that issues posed
by the complaint should be resolved through the parties' grievance and
arbitration procedure rather than unfair labor practice procedures,
because they involve arguable and variable interpretations of applicable
collective bargaining agreements.
Based upon the entire record herein, including the stipulations of
fact, the exhibits, and the briefs filed by the parties, I make the
following findings of fact, conclusions and recommendation.
Findings of Fact
The following stipulations of fact entered into the record are
accepted as true: /2/
1. At all times material to the issues raised in the
complaint, Brigadier General Atrilio Pedroli, USAF; and Captain
R. E. Steidle, were supervisory or management officials within the
meaning of Sections 7103(a)(10) and (11) respectively, of the
Statute; and were agents of Respondent at its Richmond, Virginia
location (Stip. 4).
2. By memorandum dated February 19, 1976, the Defense
Logistics Agency, /3/ pursuant to 5 U.S.C. 6101(a)(2)(A),
authorized each PFLA, including Respondent, to use flexible work
schedules (Stip. 10, Jt. Exh. No. 11).
3. After receipt of the February 19, 1976, Defense Logistics
Agency letter authorizing flexitime, an ad hoc committee was
formed to develop procedures for administering flexitime at
Respondent's Richmond location (Stip. 11). Representatives of the
Union served on this ad hoc committee. The findings and
recommendations of the committee were incorporated into DGSC
Regulation No. 1422.3, dated May 11, 1976 (Stip. 11, Jt. Exh. No.
12).
4. From about May of 1976 through the present time /4/
employees assigned to the following of Respondent's Directorates
and Offices have been working flexible schedules:
A. Directorate of Storage and Transportation
1. Inventory Control Office, Warehouse 65.
2. Quality Control Office, Warehouse 65.
3. Document Control Office, Warehouse 59.
4. Mechanization Branch of OP&M., Warehouse 59.
5. Traffic Management Office of Transportation, Warehouse 60.
B. Contracting and Production
C. Supply Operations
D. Technical Operations
E. Comptroller
F. Civilian Personnel
G. Installation Services
H. Office of Command Security, Officer Personnel
I. Safety Office (Stip. 15).
5. Respondent's Directorate of Storage and Transportation
presently has the following numbers of employees on flexitime:
Inventory Control Office-54 employees
Quality Control Office-17 employees
Document Control Office-18 employees
Mechanization Branch of OP&M-9 employees
Traffic Management Office-9 employees (Stip. 15).
6. From May 11, 1976 until June 4, 1979, flexitime was
administered pursuant to DGSC Regulation No. 1422.3 (Stip. 12, Jt.
Exh. No. 12).
7. Since December 1, 1976, the Respondent and the Union have
been governed by the provisions of a local collective bargaining
agreement. This agreement currently remains in effect as a
supplement to a Master Agreement executed on August 12, 1980, by
the American Federation of Government Employees, AFL-CIO, and the
Defense Logistics Agency (Jt. Exh. Nos. 3 and 4, Respondent's
Brief at 2, and General Counsel's Brief at 6-8).
8. Since approximately January 1, 1977 until the present time,
employees of the Processing and Final Distribution Section,
Shipment and Planning Branch, Directorate of Storage and
Transportation, have been on a fixed shift as opposed to a
flexible shift (Stip. 16).
9. On February 27, 1979, the Union was provided with a copy of
proposed DGSC Supplement 1, relating to Defense Logistics Agency
Regulation 1422.1, captioned "Hours of Duty." (Stip. 13).
10. On May 9, 1979, the American Federation of Government
Employees, AFL-CIO, was certified as the exclusive representative
of a consolidated unit of nonprofessional employees, including
those located at Respondent's Richmond, Virginia facilities (Stip.
5).
11. DGSC Supplement 1, relating to Defense Logistics Agency
Regulation 1422.1, was published on June 4, 1979 (Stip. 13, Jt.
Exh. No. 5).
12. From June 4, 1979 until the present, flexitime was
administered in accordance with Defense Logistics Agency
Regulation 1422.1, and DGSC Supplement 1, published on June 4,
1979 (Stip. 14, Jt. Exh. Nos. 5 and 6).
13. Since August 12, 1980, the American Federation of
Government Employees, AFL-CIO, and the Defense Logistics Agency
have been parties to a Master Agreement which delegated to the
Union and the Respondent the right to negotiate over the
installation of Flexitime (Stip. 6, Jt. Exh. No. 3).
14. On or about December 3, 1982, the Union submitted to
Respondent a written request to negotiate the installation of
Flexitime for bargaining unit employees in the Processing and
Final Distribution Section of the Shipment Planning Branch of
Transportation, Warehouse 61, Directorate of Storage and
Transportation (Stip. 7, Jt. Exh. No. 7).
15. On or about December 15, 1982, Respondent failed and
refused to negotiate with the Union over the installation of
Flexitime for bargaining unit employees in the Processing and
Final Distribution Section of the Shipment Planning Branch of
Transportation, Warehouse 61, Directives of Storage and
Transportation (Stip. 8, Jt. Exh. No. 8).
In addition to the specifically stipulated facts outlined above,
Joint Exhibits entered into the record and the stipulations referred to
herein reflect the following:
The Defense Supply Agency's February 19, 1976 memorandum of Heads of
PFLA's authorized flexitime when it was considered beneficial at the
PFLA level. Implementation was conditioned upon compliance with the
Federal Personnel Manual, and provision was made for the participation
of employee groups in planning flexitime programs at the PFLA level (Jt.
Exh. No. 11).
It appeared from the record that the Union was officially represented
on an ad hoc committee charged with the responsibility of developing a
flexitime program at Respondent's level of operation, and further that
the findings and recommendations of the committee were incorporated in
DGSC Regulation No. 1422.3, which went into effect on May 11, 1976 (Jt.
Exh. No. 12). /5/
Paragraph IV.A.3. of the DGSC Regulation 1422.3 reflects the
following policy:
RESPONSIBILITIES
A. Directors/Major Office Chiefs will:
. . . .
3. Determine what positions will not participate in flexitime.
These positions should be recorded by title, series, grade, and
position number, together with the reasons for their exclusion, if
not otherwise included by this regulation, . . . .
The December 1, 1976 local agreement, which is still in effect,
reflects that the parties intended to be governed by existing or future
laws, and then existing regulations. Article VI, Section 1(a) of the
agreement reflects the following:
Section 1. This agreement is subject to the following requirements:
(a) In the administration of all matters covered by this
agreement, officials and employees are governed by existing or
future laws and the regulations of appropriate authority,
including policies set forth in the Federal Personnel Manual; by
published Agency policies and regulations in existence at the time
the agreement was approved. . . .
Article X of the December 1, 1976 local agreement, entitled "Hours of
Work and Tours of Duty," indicates at least three references to
"flexitime" and (by implication) incorporates, the then existing
flexitime program by reference. As noted the then existing flexitime
program was spelled out in DGSC Regulation 1422.3 in specific terms.
On September 15, 1978, Congress passed the Federal Employees Flexible
and Compressed Work Schedules Act of 1978, Pub. L. No. 95-390, 92 Stat.
755(1978), (5 U.S.C. 6101 Note). The Act provided Federal agencies an
initial three-year period to experiment with varied work schedules to
evaluate the effectiveness and desirability of permanently maintaining
flexible or compressed work schedules within Federal executive agencies.
This Act did not affect the then existing flexitime program in effect
by reason of the provisions of DGSC Regulation No. 1422.3, and the
provisions of the December 1, 1976 local collective bargaining agreement
executed by the Union and the Respondent.
As of February 27, 1979, the Respondent commenced an effort to revise
regulations pertaining to Respondent's flexitime program then in place.
This was accomplished by supplying the Union with a copy of a proposed
DGSC Supplement 1, relating to Defense Logistics Agency Regulation No.
1422.1, captioned "Hours of Duty." /6/ The exact procedure utilized by
the parties to effect this regulatory change is not reflected in the
record. However, the Union did supply comments concerning certain
issues involved (Jt. Exh. No. 13). On June 4, 1979, a revised DGSC
Supplement 1, to Defense Logistics Agency Regulation No. 1422.1, was
issued. Through this issuance the Respondent utilized the format set
out in earlier Defense Logistics Agency Regulation No. 1422.1, to
"establish procedures and guidance for flexitime at the Defense General
Supply Center. . . . " (Jt. Exh. No. 5). This issuance replaced DGSC
Regulation No. 1422.3, dated May 11, 1976.
The June 4, 1979 issuance, identified as DGSC Supplement 1 to Defense
Logistics Agency Regulation 1422.1, reflects that the Supplement
operated to modify Defense Logistics Agency Regulation 1422.1 so as to
include the following as Paragraph IV.B.3.f.:
3. Directors and Major Office Chiefs will:
. . . .
f. Determine what positions will not participate in flexitime.
These positions should be recorded by title, series, grade, and
position number, together with the reasons for their exclusion, if
not otherwise excluded by this regulation. . . .
It was clear that the quoted language was identical to that used in
Paragraph IV. A. 3. of DGSC Regulation 1422.3 issued on May 11, 1976.
There is no indication in the record that the Union interposed objection
to continuation of this terminology in the newly revised Defense
Logistics Agency Regulation 1422.1, nor does the record otherwise
reflect that the revised Regulation, as finally issued, was materially
different.
The May 9, 1979 certification of the American Federation of
Government Employees, AFL-CIO as the exclusive representative of a
consolidated unit eventually led to the execution of the August 12, 1980
Master Agreement. The terms of the Master Agreement were applicable to
both professional and nonprofessional consolidated units of Defense
Logistics Agency employees, including those represented by the Union in
this case.
The subject of flexitime is addressed in Article 20, Section 4 of the
Master Agreement in the following terms:
Subject to restrictions of Article 2, /7/ installation of
flexitime within the administrative work week and basic work week
stipulations set forth in Section 2 may be negotiated by the PLFA
and the DLA Council Local.
The cited Master Agreement provision operates to delegate to the
Union and the Respondent the right to negotiate over issues relating to
the "installation of flexitime." However, Article 44, Section 3 of the
Master Agreement provides:
All 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.
Those provisions of currently existing local labor-management
agreements which are in conflict with this Master Agreement are
hereby superseded.
On July 12, 1982, Congress passed the Federal Employees Flexible and
Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227,
5 U.S.C. 6101 et seq. This enactment replaced the Federal employees
Flexible and Compressed Work Schedules Act of 1978. Sections 6130(a)(1)
and (2) of the 1982 enactment provide:
(a)(1) In the case of employees in a unit represented by an
exclusive representative, any flexible or compressed work
schedule, and the establishment and termination of any such
schedule, shall be subject to the provisions of this subchapter
and the terms of a collective bargaining agreement between the
agency and the exclusive representative.
(2) Employees within a unit represented by an exclusive
representative shall not be included within any program under this
subchapter except to the extent expressly provided under a
collective bargaining agreement between the agency and the
exclusive representative.
By memorandum dated December 3, 1982, Mr. Richard M. Earl, Sr.,
President and Executive Secretary of the Union addressed a request to
Captain R. E. Steidle, Director of the Directorate of Storage and
Transportation, for the purpose of requesting negotiations relating to
"the installation of Flexitime in the Processing and Final Distribution
Section of Shipment Planning Branch of Transportation, Whse. 61, Storage
and Transportation." The Union proposed using "the present type of
Flexitime i.e. core time 9:00 a.m. to 3:00 p.m. with 8 hours of duty
between the hours of 6:30 a.m., and 5:30 p.m." (Jt. Exh. No. 7).
By letter dated December 15, 1982, addressed to Mr. Earl, Captain
Steidle responded that flexitime would not be introduced in the
Processing and Final Distribution Section because it might interfere
with the smooth functioning of the Section, and the support that the
Section provided to the mission of the Directorate of Storage and
Transportation (Jt. Exh. No. 8). By letter dated February 9, 1983,
Brigadier General Attilio Pedroli, Commander, Defense General Supply
Center, wrote to Mr. Earl and reiterated this position. He stated
further that the flexitime schedule proposed was impractical; that the
December 1, 1976 agreement, and Defense Logistics Agency Regulation
1422.1 covered this matter; that these documents were executed with
Union concurrence; and that these documents did "not require management
to negotiate, at the request of AFGE Local 2047, changes in tours of
duty which are desired by bargaining unit employees." (Jt. Exh. No. 9).
Discussion and Conclusions
It is well settled that alleged unfair labor practices which
essentially involve differing and arguable interpretations of a
negotiated agreement, as distinguished from alleged actions which
constitute clear and patent breaches of a negotiated agreement, are not
deemed to be violative of the Statute. In such cases the aggrieved
party's remedy lies within the grievance and arbitration procedures in
the negotiated agreement rather than through unfair labor practice
procedures. Harry S. Truman Memorial Veterans Hospital, Columbia,
Missouri, 11 FLRA No. 90, 11 FLRA 516 (March 9, 1983); Iowa National
Guard and National Guard Bureau, 8 FLRA No. 101, 8 FLRA 500 (May 7,
1982); Division of Military and Naval Affairs, State of New York,
Albany, New York, 8 FLRA No. 71, 8 FLRA 307 (March 26, 1982); Social
Security Administration, District Offices in Denver, Pueblo and Greely,
Colorado, et al., 3 FLRA No. 10, 3 FLRA 61 (April 14, 1980); U.S.
Patent and Trademark Office, 3 FLRA No. 123, 3 FLRA 823, (July 31,
1980); Oklahoma City Air Logistics Center, Tinker Air Force Base,
Oklahoma, 3 FLRA No. 82, 3 FLRA 511 (June 27, 1980); Department of
Health, Education and Welfare, Social Security Administration, 1 FLRA
No. 37, 1 FLRA 297 (May 9, 1979).
The disposition of issues posed in this case are inextricably tied to
questions of contract interpretation. That is, it would be necessary to
resolve these questions in order to determine the contractual rights of
the parties and to determine fully the respective rights of the parties
under the Federal Employees Flexible and Compressed Work Schedules Act
of 1982. Briefs filed by the parties clearly show that arguments
presented by the General Counsel and the Respondent turn upon their
respective interpretations of relevant provisions in the Master
Agreement, and the December 1, 1976 local agreement.
Section IV.A.3. of DGSC Regulation No. 1422.3 expressly gave
Directors and Major Office Chiefs employed by the Respondent, authority
to "(d)etermine what positions will not participate in flexitime." The
parties stipulated that the flexitime program set out in Regulation No.
1422.3 embraced the findings and recommendations of an ad hoc committee
formed to develop procedures for administering flexitime at the DGSC,
and further that representatives of the Union served on the ad hoc
committee.
The program spelled out in Regulation No. 1422.3 was incorporated
into the December 1, 1976 local agreement by reference. This
incorporation by reference is reflected in Article VI, Section 1(a)
which provides that, "(i)n the administration of all matters covered by
this agreement, officials and employees are governed by existing or
future laws and the regulations of appropriate authority, including . .
. published Agency policies and regulations in existence at the time the
agreement was approved. . . . " Article X of the December 1, 1976 local
agreement also refers specifically to "flexitime," and was thus
necessarily referring to the then existing flexitime program in place by
virtue of the provisions of Regulation No. 1422.3, dated May 11, 1976.
The flexitime regulations set out in DGSC Regulation No. 1422.3, did
undergo some revision; however, the substance of the provision involved
herein (IV.A.3.) remained unaltered in the June 4, 1979 issuance of DGSC
Supplement 1 to Defense Logistics Agency Regulation 1422.1. Moreover,
the record strongly suggests Union involvement prior to issuance of the
June 4, 1979 Supplement. As early as March 5, 1979, the Union supplied
proposals relating to the Respondent's plan to recodify the existing
flexitime program into Defense Logistics Agency Regulation 1422.1. It
is not contended that the revision of Regulation 1422.1 was issued in
derogation of Union rights, or that unilateral changes in the flexitime
program were effectuated. The facts reflect that the flexitime program
promulgated on May 11, 1976 with Union involvement, insofar as it is
relevant here, continued in effect for all intents and purposes, albeit
in the form of Defense Logistics Agency Regulation 1422.1.
The parties stipulated that since June 4, 1979, the program has been
administered under the amended version of Defense Logistics Agency
Regulation 1422.1. It appears that the parties considered the latter
regulatory provision binding upon them for a period of about four and
one half years prior to the alleged refusal to bargain. That is, for
this period of time the provisions of Paragraph IV.B.3.f. of revised
Defense Logistics Agency Regulation 1422.1 governed. This Paragraph
reposed in the Respondent the right to determine which positions would
be eligible to participate in flexitime. It is noted that Mr. Earl's
December 3, 1982 bargaining request alluded to "the present type of
flexitime" in his effort to expand coverage through negotiation. In
doing so he was referring to the flexitime program prescribed in Defense
Logistics Agency Regulation 1422.1.
Although Article 20, Section 4 of the Master Agreement arguably
imposes a new bargaining obligation upon the Respondent in the flexitime
area, it is also true that Article 44, Section 3 of the Master Agreement
may be utilized as a basis for arguing that the December 1, 1976 local
agreement, together with flexitime as prescribed in regulations, both
survived after execution of the Master Agreement. That is, although
Article 20, Section 4 of the Master Agreement did provide for future
PLFA, and Local 2047 negotiations relating to the "installation of
flexitime" it must be noted that a flexitime program had already been
installed at Respondent's Richmond location. Respondent might arguably
contend that Article 20, Section 4 did not operate to abrogate what had
previously been installed by the parties.
Respondent may also contend that the flexitime program stemmed
initially from the efforts of the ad hoc committee, which included Union
participation; that it was continued in effect by the terms of the
December 1, 1976 local agreement, and regulatory provisions endorsed by
the Union; that it was given continued legal status by the Master
Agreement and long-standing practice of the Parties over a period of
years; and lastly, that the program in place specifically conferred
upon the Respondent a clearly articulated contractual right to determine
whether Processing and Final Distribution Section employees should be
included under flexitime. All of these issues relate to variable and
arguable interpretations of the two collective bargaining agreements in
evidence. /8/
Heavy reliance is placed upon the Federal Employees Flexible and
Compressed Work Schedules Act of 1982 as a basis for the bargaining
obligation in this case. Section 6130(a)(1) of that Act provides that
"any flexible or compressed work schedule, and the establishment and
termination of any such schedule, shall be subject to the provisions of
this subchapter and the terms of a collective bargaining agreement
between the agency and the exclusive representative." At the outset
threshold questions are posed with respect to the meaning and/or legal
effect to be accorded pertinent provisions of the Master Agreement,
pertinent provisions of the December 1, 1976 local agreement, and the
regulatory scheme incorporated by reference. These would have to be
resolved in order to determine the applicability of the 1982 Act.
Section 6130(a)(2) provides that "(e)mployees within a unit
represented by an exclusive representative shall not be included within
any program under this subchapter except to the extent expressly
provided under a collective bargaining agreement between the agency and
the exclusive representative." Again, this language indicates that
interpretations of pertinent contract provisions would have to be
supplied before attempting to apply the provisions of the 1982
enactment.
Notwithstanding other provisions of the 1982 Act, or any collective
bargaining agreement, Section 6131 of Title 5 establishes criteria for
alternative work schedules and for Federal Service Impasses Panel review
of agency decisions terminating, or refusing to institute, alternative
work schedules. Counsel for the General Counsel argues that this
Section operates to impose a bargaining obligation in this case.
Section 6131(a) provides that if the head of an agency finds that a
particular schedule has had or would have an "adverse agency impact" as
defined in Section 6131(b), the agency shall promptly determine not to
establish such schedule. Section 6131(c)(1) and (2) provide that if an
agency and an exclusive representative reach an impasse in collective
bargaining with respect to an agency determination under subsection
(a)(1) not to establish a flexible or compressed schedule, the impasse
shall be presented to the Federal Service Impasses Panel, which shall
promptly consider the case and take final action consistent with the
requirements set forth in the Act. However, Section 6131(d) of the 1982
Act provides:
(d) This section shall not apply with respect to flexible
schedules that may be established without regard to the authority
provided under this subchapter.
Senate Report No. 97-365, 97th Congress, 2d Session 16, (1982), which
accompanied S. 2240, prior to enactment into law as the 1982 Act,
explained Section 6131(d) in the following terms:
Subsection (d) provides for a restricted definition of flexible
schedule. This restricted definition is only applicable to this
section and section 4 of this Act. . . . The intent of this
section is to constrict the normal negotiation process only over
alternative work schedules that could not have been established
prior to Public Law 95-390. . . .
In this case we are specifically dealing with a flexitime proposal
that could have been established prior to Public Law 95-390 (Federal
Employees Flexible and Compressed Work Schedules Act of 1978), inasmuch
as the proposal in issue would have merely extended the then existing
flexitime program to the Processing and Final Distribution Section. By
its terms the Union proposal in this case referred to flexitime of a
type which had been in existence at Respondent's Richmond, Virginia
location since May of 1976. Therefore, the provisions of Section 6131
may not be construed as imposing an independent bargaining obligation.
Upon the basis of the foregoing, it is recommended that the Authority
issue the following Order pursuant to 5 C.F.R. 2422.29.
ORDER
IT IS HEREBY ORDERED, that the complaint in Case No. 34-CA-30226, be,
and it hereby is, dismissed.
LOUIS SCALZO
Administrative Law Judge
Dated: February 22, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The Respondent's motion to dismiss the Charging Party's
exceptions as untimely filed is denied. The Charging Party's request
for an extension of time in which to file exceptions to the Judge's
Decision was previously granted by the Authority for good cause shown
within the meaning of section 2429.23(a) of the Authority's Rules and
Regulations, and the Charging Party's exceptions were filed within such
extension period.
/2/ Although not set out in detail herein, the parties also
stipulated to the truth of allegations in the complaint concerning the
filing and service of the charge, amended charge, complaint, answer, and
amended answer. Also, the parties stipulated that the Union was a
"labor organization" within the meaning of Section 7103(a)(4) of the
Statute; and that the Respondent was an "agency" within the meaning of
Section 7103(a)(3) of the Statute.
/3/ The record reflects that the Defense Logistics Agency was then
known as the Defense Supply Agency (Jt. Exh. Nos. 11 and 12).
/4/ The Stipulation was executed on September 2, 1983.
/5/ As of May 11, 1976, the parties were also governed generally by
Defense Supply Agency Regulation No. 1422.1 dated January 20, 1975,
entitled "Hours of Duty." (Jt. Exh. Nos. 5 and 6). This later became
known as Defense Logistics Agency Regulation No. 1422.1. Regulation No.
1422.1 did not then address flexitime issues. However, the power to fix
daily and weekly work schedules was specifically delegated to the Heads
of PFLA's.
/6/ As previously noted Defense Logistics Agency Regulation No.
1422.1 did not then specifically relate to flexitime.
/7/ Among other things, Article 2 of the Master Agreement reflects
the intent of the Defense Logistics Agency and Defense Logistics Agency
Council of AFGE Locals, to be governed by all applicable laws of the
United States whether enacted before or after the execution of the
Master Agreement.
/8/ The General Counsel's case is based largely upon Article 20,
Section 4, of the Master Agreement. The Authority has specifically
held, where there is a dispute as to whether a master agreement,
negotiated at the national level, authorizes bargaining at the local
level on certain matters contained therein, the proper forum in which to
resolve such disputes would be that which the parties themselves have
adopted for such purpose. American Federation of Government Employees,
AFL-CIO, Local 695, 3 FLRA No. 7(1980), 3 FLRA 42.
Issues involved in this case do not, as contended by the counsel for
the General Counsel, relate to the question of whether the Union clearly
and unequivocally waived bargaining rights. The record does in fact
reflect evidence of a clear and unequivocal waiver. However, in order
to determine the legal effect of the waiver, as of the date of the
refusal to bargain stipulated, it is necessary to resolve variable and
arguable interpretations of relevant contractual provisions.