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



[ 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'