20:0512(62)CA - Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia and AFGE Local 2047 -- 1985 FLRAdec CA
[ v20 p512 ]
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'