31:1244(111)CA - Missouri NG, Office of the Adjutant General, Jefferson City, MO and NAGE Locals R14-68, 71, 73 and 97 -- 1988 FLRAdec CA



[ v31 p1244 ]
31:1244(111)CA
The decision of the Authority follows:


31 FLRA NO. 111

MISSOURI NATIONAL GUARD
OFFICE OF THE ADJUTANT
GENERAL, JEFFERSON CITY,
MISSOURI

                    Respondent

      and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCALS R14-68, 71, 73 and 97

                    Charging Party

                                          Case No. 7-CA-30494
                                              (18 FLRA 340)

                  DECISION AND ORDER ON REMAND

     I. Statement of the Case

     This case is before the Authority pursuant to a remand from
the United States Court of Appeals for the District of Columbia
Circuit. The court set aside the Authority's original decision
and remanded the case for further proceedings consistent with its
decision in NTEU v. FLRA,  810 F.2d 295 (D.C. Cir. 1987).

     The issue is whether the Respondent violated section
7116(a)(1) and (5) of the Federal Service Labor - Management
Relations Statute (the Statute) by refusing to bargain concerning
flexitime when the Charging Party (Unions) requested to do so
during the term of the parties' collective bargaining agreement.
Consistent with the court's decision in NTEU v. FLRA,  and in
accordance with our recent Decision and Order on Remand in
Internal Revenue Service, 29 FLRA  162 (1987), we conclude that
the Respondent did not violate the Statute as alleged.

     This case resolves only the question of whether the Agency
has a duty to bargain at all under the circumstances involved. It
does not present questions as to whether or not particular
proposals are negotiable. The Union requested to bargain over the
general subject matter of flexitime. From the record it
appears that no  specific proposals were presented by the Union,
and the Respondent refused to bargain over any flexitime plan.

     II. History of the Case

     A. Background

     The Respondent and the Unions, which comprise the Missouri
council of Locals, National Association of Government Employees
(the Council) were parties to a collective bargaining agreement
effective on November 28, 1979. The agreement was renewed in
November 1982 for another 3-year term.

     In January 1983, the Council sought to negotiate over a
flexitime proposal, claiming that the passage in 1982 of the
Federal Employees Flexible and Compressed Work Schedules Act,
Public Law 97-221, had changed the law applicable to employees in
the bargaining unit. The Respondent asserted that the Act did not
apply to unit employees. It, therefore, declined to bargain
because it claimed that there had been no  change of existing law
which would give the Council the right to reopen the parties'
agreement in accordance with its terms. An unfair labor practice
(ULP) charge was filed based on this refusal to bargain but was
withdrawn by the Council.

     Subsequently, by letter dated June 21, 1983, the Council
requested "to negotiate a flexitime plan under the FLRA's 
doctrine of mid-term negotiations." The Council stated that it
would "forward proposals in the near future." The agreement has
no  provisions for flexitime, and the subject was neither raised
nor discussed during negotiations for the agreement. The
Respondent refused to bargain over any flexitime plan and stated
that its "position remains unchanged." Exhibit 10. Based on this
refusal to bargain, the Council filed the ULP charge which led to
the complaint in this case.

     B. Previous Decision and Order of the Authority

     On June 6, 1985, the Authority issued its previous Decision
and Order in this case, Missouri National Guard, Office of the
Adjutant General, Jefferson City, Missouri, 18 FLRA  340 (1985).
The Authority relied on its previous decision in Internal Revenue
Service, 17 FLRA  731 (1985), where the Authority determined that
except for union proposals related to changes in established
conditions of  employment made by management, an agency
did not have an obligation under the Statute to bargain over
union-initiated proposals during the term of a collective
bargaining agreement.

     The Authority determined that the Respondent had no  duty to
bargain over a flexitime plan because the matter was unrelated to
any management-initiated changes in unit employees' conditions of
employment and was raised during the term of the parties'
negotiated agreement. Further, the Authority determined that the
request was not submitted in accordance with the reopener
provision of the agreement. In view of that conclusion, the
Authority found it unnecessary to address the Respondent's
contention that the Council had waived any right to bargain over
flexitime by the terms of the negotiated agreement. The Authority
dismissed the complaint.

     C. The Court's Decision

     In NAGE Locals R14-68, 71, 73 and 96 v. FLRA,  No.  85-1463
(D.C. Cir. Aug. 19, 1987) the court reversed and remanded this
case to us for proceedings consistent with its decision in NTEU
v. FLRA,  810 F.2d 295 (D.C. Cir. 1987). In that case, the court
set aside the Authority's decision in Internal Revenue Service
and remanded the case. The court concluded that the Authority's
decision was contrary to the intent of Congress and the purposes
of the Statute.

     D. The Authority's Decision and Order on Remand in Internal
Revenue Service

     in our Decision and Order on Remand in Internal Revenue
Service, 29 FLRA  162 (1987), we concluded that the duty to
bargain in good faith imposed by the Statute requires an agency
to bargain during the term of a collective bargaining agreement
on negotiable union-initiated proposals concerning matters which
are not contained in the agreement, unless during negotiation of
the agreement, the union clearly and unmistakably waived its
right to bargain about the subject-matter involved.

     III. Positions of the Parties

     The General Counsel argued that flexitime is negotiable,
citing Social Security Administration, 11 FLRA  390 (1983).
Further, the General Counsel argued that the Council did not
waive its right to initiate mid-term bargaining by the wording of
the agreement, the negotiations or past practice. 

     The Charging Party argued that mid-term bargaining is
appropriate in this case, and that it did not waive its right to
initiate the bargaining.

     The Respondent argued that the Council had no  right to
demand mid-term bargaining except in the case of a
management-initiated change in conditions of employment. In
addition, it argued that the Council had waived any right to
initiate mid-term bargaining.

     IV. Analysis

     Consistent with the court's remand here as well as our
Decision on Remand in Internal Revenue Service, the Respondent
had a duty to bargain over a negotiable proposal by the Council
regarding flexitime, unless (1) the matter is covered by the
parties' agreement or (2)  the Union clearly and unmistakably
waived its right to bargain. Such a waiver may be established by
express agreement or by bargaining history. There is no 
assertion in this case that the matter is covered by the
agreement.

     We find, as explained below, that the Council clearly and
unmistakably waived its right to bargain under the terms of the
parties' agreement. Therefore, we conclude that the complaint
must be dismissed.

     A union's waiver of employees' statutory rights must be
clear and unmistakable. Department of the Air Force, Scott Air
Force Base, Illinois, 5 FLRA  9 (1981). See also Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). In determining
whether a contract provision constitutes such a clear and
unmistakable waiver, we will examine the wording of the provision
as well as other relevant provisions of the contract, bargaining
history, and past practice. Internal Revenue Service, 29 FLRA  at
166.

     A. Express Waiver

     The preamble to the parties' negotiated agreement states, in
pertinent part:

     The following Articles constitute the entire Agreement, and
     there shall be no  side agreements or understandings, written or
     implied, other than those embodied in the Agreement. The Parties
     have had full opportunity to raise any and all issues during
     negotiations, and this Agreement represents the sum
     total of the terms and conditions which the Parties agree to
     abide by for its duration.

     The agreement also states that it can be reopened at any
time "as may become necessary due to changes of existing
regulations, policies, laws, or the Act, or the introduction and
implementation of new policies, laws or Executive Orders."
Article 23, Section 2. 

     The preamble is specific and inclusive. It states that the
contract constitutes the parties' "entire agreement" and that
during the term of the agreement, there would be no  other
agreements of any kind. After reciting that the parties "have had
full opportunity to raise any and all issues," the provision
concludes that "this agreement represents the sum total of the
terms and conditions" of the parties' agreement. We find that
this clause waives both parties' rights to negotiate over matters
which the parties did not incorporate in their agreement as well
as the provisions of the agreement itself. Compare, Columbus and
Southern Ohio Electric Company, 270 NLRB 686 (1984), aff'd sub
nom. International Brotherhood of Electrical Workers Local 1466
v. NLRB, 795 F.2d 150 (D.C. Cir. 1986) (where the broad scope of
the contract language had the effect of a waiver).

     The parties' intention that the preamble would serve as a
"zipper clause" waiving any further bargaining is reinforced by
the limited conditions permitted by Article 23, Section 2  for
reopening the agreement. Thus, after noting in the preamble that
the parties had full opportunity to raise "any and all issues,"
Article 23, Section 2  provides for reopening only as necessary
because of new or changed laws, policies or regulations.

     B. Bargaining History

     The stipulated record in this case shows that the agreement
contains no  provisions for flexitime and the subject was neither
raised nor discussed during negotiations. Stipulation, paragraph
13.

     The fact that the parties did not discuss the issue of
flexitime during negotiations does not require a finding that the
Union did not intend to waive the right to bargain on the subject
during the term of the contract. The Respondent acknowledges that
it possessed the authority to approve alternate or compressed
work schedules. Exhibit 8. It appears that at least
since March, 1982, there is documentation of a continuation of
such alternate/compressed work schedules. Id.

     V. Conclusion

     Based on the foregoing, we find that the parties clearly and
unmistakably waived their rights to reopen their agreement
mid-term, except "as may become necessary" for the reasons
specified in Article 23. The record does not indicate that the
Council's June 21, 1983, request to neg