38:1136(91)CA - - Air Force, 416 CSG, Griffiss AFB, Rome, NY and AFGE Local 2612 - - 1990 FLRAdec CA - - v38 p1136

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[ v38 p1136 ]
38:1136(91)CA
The decision of the Authority follows:


38 FLRA No. 91

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

416 CSG, GRIFFISS AIR FORCE BASE

ROME, NEW YORK

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2612

(Charging Party)

1-CA-80341

DECISION AND ORDER

December 21, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge (the Judge). The General Counsel filed an opposition to the Respondent's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing the working conditions of unit employees by changing the core hours for employees on flexitime in the Respondent's Management and Systems Branch without providing the Union with notice of the change and an opportunity to bargain over the change and/or its impact and implementation. The Judge found that the Respondent's conduct violated section 7116(a)(1) and (5) of the Statute as alleged.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the following reasons, we agree with the Judge that the Respondent violated the Statute by failing to provide the Union an opportunity to bargain over the substance and the impact and implementation of the change. We adopt the Judge's findings, conclusions, and recommendations to the extent consistent with this decision.

II. Background

During negotiations for the parties' 1979-81 agreement, the Union submitted a proposal concerning flexitime. While negotiations were proceeding, a committee, which included a Union member, developed a trial flexitime plan. The plan was implemented and the Union withdrew its flexitime proposal from bargaining. In 1981, the flexitime plan was issued as Griffiss Air Force Base Regulation 40-5 (GAFBR 40-5). The Union was sent a copy of the regulation for coordination prior to publication. The Union made no demand to bargain over the matter and the regulation was thereafter published. The regulation was republished in 1987 without any changes affecting unit employees and without notification to the Union, and remained in effect thereafter.

The flexitime plan in GAFBR 40-5 defines several terms and concepts. It defines "core time" as the time when all personnel will be at their duty stations or otherwise accounted for and establishes the core time as the hours between 0900-1100 and 1300-1500. It also defines "flex time" as the times from 0630-0900, 1100-1300 and 1500-1800, and specifies that flex times must be scheduled in 15-minute increments. Section 1.b. of GAFBR 40-5 states in pertinent part:

The Flexitour Program applies to personnel assigned to the 416 Bomb Wing and 416 Combat Support Group units and those organizations not having a separate flexitour program regulation but elect to go on flexitour. However, specific individuals may be excluded by their supervisor or organization due to mission requirements.

Joint Exhibit 1 at 2.

Section 3 (PROCEDURES) of GAFBR 40-5 states in pertinent part:

a. Supervisors may approve employee requests to vary their work schedule within Flexitour hours. Variations in an employee's schedule may be approved for different periods of time.

(1) The supervisor and employee may agree to a time of arrival for any period of time (e.g., one day, one week, one month, etc.). The employee must begin at this time for a period approved (e.g., 0730 each day for one week). If the employee fails to begin at the agreed upon time, he/she is considered to be tardy. The supervisor may then exercise any of the options specified in para 3.d.

(2) In these [sic] cases where agreement between the employee and the supervisor cannot be reached, supervisors may disapprove or terminate Flexitour requests when approval would be detrimental to mission accomplishment or a previously approved Flexitour has been abused.

. . . .

f. Personnel on Flexitours are required to be present during Core Time and otherwise account for an 8 hour day [plus] lunch break. A supervisor may require an individual to be present at other times. If a change in work schedule is necessary due to mission requirements, notice of the change will be accomplished in accordance with established procedures.

. . . .

h. Any change to customer service hours will be advertised in the Griffiss Bulletin by the OPR.(1) Supervisors will insure that sufficient personnel are available to provide services during these hours.

Joint Exhibit 1 at 3, quoted in Judge's Decision at 4-5.

The employees in the Management and Systems Branch, not including computer section employees, had worked under the flexitime provisions of GAFBR 40-5 since at least January 1988. Under these provisions, Branch employees had their work schedules established by mutual agreement with their supervisors and were allowed to begin their workday as early as 0630 and end it as early as 1500.

On May 27, 1988, the Branch Chief wrote a memorandum to the personnel office asking whether it was possible to change the earliest permissible starting time from 0630 to 0715 hours and the earliest permissible quitting time from 1500 to 1600 hours, effective the first pay period in September. The Branch Chief explained in the memorandum that the changes were required because workload is heavier toward the end of the day and an adequate work force must be available during peak customer support hours. The Branch Chief also noted that if a midnight shift is not scheduled in the computer operations, the employees may not have access to the building until 0700 hours.

At the hearing before the Judge, the Branch Chief testified that he had received complaints that there were insufficient personnel available in the administrative and inventory sections towards the end of the duty day to provide adequate customer support. The Branch Chief explained the support performed by the administrative and inventory sections. According to the Branch Chief, the inventory section employees locate, by computer or personally, parts necessary for the repair of aircraft. If the parts are not located and an airplane is scheduled to fly, maintenance employees will "cannibalize" the item from an airplane not scheduled to fly to repair the aircraft which is scheduled to fly. Hearing Transcript at 38. This results in double maintenance work and one aircraft remains grounded until the part is installed.

In mid-June, the Branch Chief gave a copy of his May 27 memorandum to a Union steward. The Union steward gave it to the Union president. As the document indicated a September effective date, the Union president interpreted it to be a proposal to implement a change in working conditions. Accordingly, on June 17, 1988, the Union president made a written demand that the Respondent bargain on its attempt "to implement a change in the start and stop times of flex[i]time hours." Joint Exhibit 3.

On June 21, 1988, the Respondent's labor relations officer replied that because the flexitime policy and its procedures had not changed, bargaining over those matters was not necessary or appropriate, and he denied the request to bargain. The labor relations officer stated that, "[n]otwithstanding the denial of your request, please submit any comments or proposals you wish to have considered relative to this matter to me in writing to be received by 30 June 1988." Joint Exhibit 4. On June 28, 1988, the Union filed the instant unfair labor practice charge.

On July 11, 1988, the Branch Chief notified employees within the Branch that effective September 4, 1988, flexitime tours for all personnel assigned to the Branch could not begin before 0715 hours or end before 1600 hours. The notice stated that "[t]his change is necessary to ensure personnel are available during peak customer service hours." General Counsel Exhibit 3.

The Union president wrote to the labor relations officer on July 19, 1988, and requested an opportunity to bargain over the impact and implementation of "this new policy" to resolve the unfair labor practice charge that had been filed. General Counsel Exhibit 4. The labor relations officer responded on July 26, stating that management continued to maintain that bargaining was not required or appropriate because the policy and procedures of flexitime had not changed. General Counsel Exhibit 5. On September 4, 1988, the flexitime tour changes for the Management and Systems Branch became effective.

III. The Judge's Decision

Before the Judge, the General Counsel contended that the Respondent's altering of the flexitime core starting and quitting times and denying the Union an opportunity to bargain on the matter constituted a unilateral change in established working conditions of employees in the Management and Systems Branch and constituted a violation of section 7116(a)(1) and (5) of the Statute. The General Counsel requested that a status quo ante remedy be ordered, even if the Respondent's obligation to bargain were found to be limited to impact and implementation bargaining. Judge's Decision at 9.

The Respondent contended before the Judge that the complaint and underlying charge were not sufficient to support a finding that an unfair labor practice occurred on May 27, 1988. The Respondent asserted that no change occurred on May 27, 1988, and that events subsequent to that date should be included in a separate charge and complaint if they are to be litigated. Id. at 9, 10-11.

The Respondent also contended that: (1) the change was privileged under the regulation because the regulation allows management to make changes in employees' flexitime hours to meet mission requirements; (2) the Union waived its right to bargain over the application of the regulation by participation and acquiescence in the terms of the regulation; (3) even if the change were not permitted under the regulation, the dispute merely involved a question of differing interpretations of the regulation; and (4) the change was de minimis. Id. at 10.

The Judge stated that under Authority precedent applying the Federal Employees Flexible and Compressed Work Schedules Act of 1982,(2) alternative work schedules, including their institution, implementation, administration and termination, are negotiable. The Judge concluded that any change in the work schedules or tours of duty of employees working under flexitime arrangements would be negotiable not only as to the impact and implementation of the change but also regarding the decision to change itself, unless the agency was otherwise privileged to effectuate the change. Id.

As to the Respondent's argument that the unfair labor practice complaint and underlying charge were not sufficient to encompass the issue in this case, the Judge found that the Respondent was correct in stating that no change occurred on May 27. However, the Judge found that the Branch Chief's May 27 memorandum "signaled" a clear intent to change core hours effective in September. Id. at 11. The Judge found that: (1) the unfair labor practice charge was specifically directed to the Respondent's June 21, 1988, refusal to bargain; (2) the Respondent's May 27, 1988, memorandum was merely the first in a chain of events leading to the change; (3) "it is quite apparent that Respondent was not misled by the [c]omplaint"; (4) the allegations of the complaint were sufficiently specific and reasonably related to the ultimate issue in this case; and (5) that the matter was fully litigated. Id. In these circumstances, the Judge concluded that the complaint and the underlying charge were sufficient to support a finding of an unfair labor practice with regard to the Respondent's refusal to bargain with the Union on the change in flexitime core hours. Id. at 12.

The Judge also rejected the Respondent's contention that the change was privileged under the terms of the regulation. The Judge held that the regulation set forth the flexitime practice in existence prior to the change. The Judge stated that "[u]nlike a contractual provision, under the Statute a practice can be changed by management without the agreement of the Union." Id. The Judge also pointed out, however, that a practice cannot be changed without providing the Union with notice and an opportunity to bargain over the change. The Judge stated that "[a]lthough various provisions of the regulation indicate changes in particular employee[s'] hours may be required to be changed to accomplish the mission of the agency, in my view those provisions are not addressed to changing the flexitime core hours set forth in the regulation and applicable to all employees. Rather, I view those provisions as directed to modifying individual employee hours within the specified beginning and ending flexitime core hours." Id.

The Judge found that the "Respondent's conduct of changing flexitime core hours for all Management and Systems Branch unit employees was a departure from the regulation constituting a significant modification of the Flex[i]time Program for these employees and therefore a change in practice[.]" Id. at 12-13. Accordingly, the Judge found that the Agency was required to bargain over the change and the impact and implementation of the change. Id. at 13.

The Judge also rejected the Respondent's argument that the Union had waived its right to bargain on the change and matters concerning the application of the Flex[i]time Program because the Union had withdrawn its bargaining proposal in the 1979-81 bargaining sessions, and had participated in the "ad hoc committee" which developed the current flexitime plan published in GAFBR 40-5. The Judge found that the Union's conduct did not constitute a clear and unmistakable waiver of its right to bargain. Id. at 13-14. The Judge further stated that "even if the Union were found to have 'agreed to' the Flex[i]time Program, this would not constitute a waiver to bargain on changes in that program[.]" Id. at 14.

Because the Judge found that the change in flexitime for the Management and Systems Branch employees was fully negotiable as to the change itself, and not just its impact and implementation, the Judge stated that he did not need to decide whether the effect of the change was de minimis because where the decision to make the change is negotiable, the extent of impact is irrelevant.

The Judge further determined that, in any event, he would reject the Respondent's argument that the change was de minimis. The Judge noted that 5 of the 27 employees in the Management and Systems Branch had their starting or quitting times changed from 15 minutes to 1 hour, and in the future all of the employees had limited options for their flexitime. The Judge also stated that there was no showing that a critical situation existed under the old system in carrying out the Respondent's mission. The Judge also found that the evidence did not demonstrate "the specific extent of aircraft being not flyable as a direct result of employees unavailability under the old starting or quitting times nor the particular need to have all aircraft flyable at any given time." Id. at 15.

Accordingly, the Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by changing the core hours of bargaining unit employees without negotiating with the Union. The Judge ordered, among other things, that the previous flexitime hours be reestablished, upon request, and that the Union be given the opportunity to bargain over the substance and the impact and implementation of any proposed changes.

IV. The Respondent's Exceptions

The Respondent raises two exceptions. First, the Respondent contends that the Judge erred when he determined that the complaint and underlying charge were sufficient to support a finding of an unfair labor practice on matters not included therein. Second, the Respondent claims that the Judge erred in concluding that the Respondent committed an unfair labor practice by changing the core hours for employees on flexitime in the Management and Systems Branch without providing the Union with notice and opportunity to bargain over the change and/or the impact and implementation of the change.

With respect to its first exception, the Respondent contends that only those events pertinent to the May 27, 1988, memorandum from the Branch Chief to the personnel office are relevant to this case. The Respondent maintains that subsequent events are not a part of this case and should not be considered. The Respondent asserts that where conduct is not alleged in the complaint to violate the Statute, its proof will not support a finding of an unfair labor practice. Respondent's Exceptions at 10 (citing Veterans Administration Hospital, Danville, Illinois, 4 FLRA 432, 433 (1980)). The Respondent asserts that the General Counsel's use of "boilerplate" terms such as "and continuing to date" in pleadings does not excuse the General Counsel from the failure to amend the charge and complaint if, in fact, events subsequent to May 27, 1988 were to be at issue. Id. at 12 n.3.

The Respondent notes that the Judge found that the Branch Chief's May 27, 1988, request did not, standing alone, constitute a violation of the Statute. The Respondent contends that the Judge's investigation into the matter should have stopped there because the charge and complaint refer only to the May 27, 1988, event. According to the Respondent, this is not a case in which there was merely an imprecise statement of the issue in the complaint, but rather one in which the allegation raised by the General Counsel at the hearing "in no way relates to the gravamen of the charged violation, nor does it reasonably relate to any matter which could plausibly be inferred from the complaint." Id. at 13.

As its second exception, the Respondent takes issue with the Judge's conclusion that it committed an unfair labor practice by changing employees' core hours without notice and an opportunity to bargain over the change and/or the impact and implementation of the change. According to the Respondent, the Judge "simply misread the GAFB regulation and misinterpreted the impact of its developmental history when he concluded that the change announced in July, 1988 was not one which management [was] privileged to make." Id. at 16. The Respondent asserts that it merely followed the plan's procedures, which had been in existence for a number of years, for restricting the flexible band available to employees. The Respondent states that the same procedures had been used at least twice before, without any comment from the Union. Id. at 16-17.

The Respondent also claims that the Judge erred in relying on the absence of a separate negotiated agreement concerning flexitime in holding that there was no waiver of bargaining rights in this case so long as the procedures outlined in the flexitime program were followed. Id. at 17. Noting that at no time prior to the implementation of the flexitime program did the Union demand bargaining or submit proposals, the Respondent contends that "[t]here is no clearer waiver of a right than when it is not exercised after having had the opportunity." Id. The Respondent maintains that the facts in this case are similar to those in Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia, 20 FLRA 512 (1985) (DGSC Richmond) in which the Authority dismissed a complaint alleging that the respondent had failed to bargain with the union over a decision to remove three employees from flexitime schedules, because the Authority found that the Union had clearly and unmistakably waived its right to bargain over such decisions. Id. at 19-20.

V. The General Counsel's Opposition to the Exceptions

The General Counsel contends that the Respondent's exceptions are based on the same arguments which the Judge considered and rejected. With regard to the Respondent's first exception, the General Counsel states that "it is significant that the Respondent has not disagreed with the Judge's conclusion that '. . . it is quite apparent that the Respondent was not misled by the [c]omplaint and that if a violation of the Statute occurred, it would be grounded in the refusal to bargain and subsequent implementation of the change. Such was evident throughout the hearing.'" General Counsel's Opposition at 2 (quoting Judge's Decision at 11).

The General Counsel argues that the Respondent was not surprised at the hearing, and was not prejudiced in presenting its case because the complaint referred to the May 27, 1988 date, rather than subsequent events. The General Counsel asserts that the Judge was correct in concluding that "the allegations of the [c]omplaint are sufficiently specific and reasonably related to the ultimate issue herein - the refusal to bargain on the change and its implementation - and the matter was fully litigated." Id. at 3 (quoting Judge's Decision at 11). Citing the Authority's decision in U.S. Customs Service (Washington, D.C.); and U.S. Customs Service Northeast Region (Boston, Massachusetts), 29 FLRA 891, 901 (1987) (Customs Service), the General Counsel maintains that the Respondent understood the "ultimate issue" at all times during the processing of this case, and participated fully in developing the case record. Id. at 3.

Further, as to the merits, the General Counsel contends that the Respondent is merely disagreeing with the Judge's findings of fact. The General Counsel asserts that "the record in this proceeding clearly supports the Judge's conclusion that the Respondent was obligated to negotiate over the change in the flex[i]time core hours applicable to the employees in the Management and Systems Branch." Id. at 4. The General Counsel argues that the Authority precedent raised by the Respondent in its exception is distinguishable because in the cases mentioned, the parties had negotiated a collective bargaining agreement. According to the General Counsel, the Authority found in those cases that the parties had waived a right to again negotiate over the flexitime policy. The General Counsel argues that the fact that no agreement had been negotiated about flexitime in this case distinguishes it from Authority precedent. Id.

VI. Analysis and Conclusions

We find that the complaint issued in this case was sufficient to encompass the inquiry into related subsequent events, which included the decision to implement the limitation on flexitime starting and quitting times for employees in the Management and Systems Branch.

Further, we conclude that the Respondent changed the hours during which Branch employees had to be present. We agree with the Judge that the Union did not clearly and unmistakably waive its right to bargain over this subject. We find that the Respondent was obligated to provide the Union notice of its decision and an opportunity to engage in substance and impact and implementation bargaining.

Although the Respondent provided the Union notice of its decision, it improperly refused to enter into substance and impact and implementation bargaining over the decision with the Union. We find that the Respondent's refusal to enter into bargaining with the Union over the change constitutes a violation of section 7116(a)(1) and (5) of the Statute.

A. The Complaint Is Sufficient

We have reviewed the record in this case, and find that the complaint was sufficient to support an unfair labor practice finding.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute on or about May 27, 1988, "and continuing to date" by "unilaterally chang[ing] the working conditions of bargaining unit employees by changing the 'core' hours for employees on flexitime in the Respondent's Management and Systems Branch without providing the Union with notice of the change and without providing the Union an opportunity to bargain over the change and/or the impact and implementation of the change." General Counsel Exhibit E. We find that through the specific allegations in the complaint regarding the actions alleged to constitute the unfair labor practice and the addition in the complaint of the phrase "and continuing to date," the Respondent was on notice that the activity of May 27 was not the lone event at issue in the complaint. Moreover, issues relating to events subsequent to May 27, 1988, were fully litigated at the hearing. Accordingly, and in agreement with the Judge's reasoning, we conclude that the use of the May 27, 1988, date and the reference to "core hours" in the complaint were not so limiting as to deprive the Respondent of notice of the matters at issue. See Customs Service, 29 FLRA at 901. Consequently, the Respondent's first exception is denied.

B. A Change Occurred

We agree with the Judge that the Respondent violated the Statute by unilaterally changing the earliest times employees in the Management and Systems Branch could start work and by requiring employees of the Branch to remain at work until 1600 hours instead of 1500 hours, without providing the Union an opportunity to bargain over the change and its impact and implementation.

In Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532, 542-43 (1988), the Authority stated that, generally, a change in employees' starting and quitting times is a change in their tours of duty within the meaning of section 7106(b)(1) of the Statute and an agency may decline to bargain on the decision to make the change. However, the Authority noted that some instances, including bargaining over flexible work schedules which are authorized by statute, are not affected by that decision. Id. at 543 n*.

Alternate work schedules are negotiated under the Federal Employees Flexible and Compressed Work Schedules Act. The Work Schedules Act provides that an exclusive representative can negotiate with an agency for the establishment of flexible and compressed work schedules for bargaining unit employees. 5 U.S.C. § 6130(a)(1). Alternate work schedules for bargaining unit employees are fully negotiable within the limits set by the Work Schedules Act. American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872 (1986) (Lowry AFB). In that case, the Authority held that an alleged conflict between an alternate work schedule and the Statute does not create a negotiability dispute which the Authority will consider under section 7117 of the Statute. However, proposals that are alleged to be inconsistent with the Work Schedules Act itself or with other laws superseding the 1982 Act are subject to the negotiability appeal procedures of section 7117 of the Statute. Id. at 874. See also National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, 32 FLRA 879, 881-83 (1988) (Internal Revenue Service).

Accordingly, matters which pertain to the institution, implementation, administration and termination of alternate work schedules are negotiable. In the case before us, the Respondent sought to make changes in the administration of the flexitime for employees in the Management and Systems Branch. Consistent with our holdings in Lowry AFB and Internal Revenue Service, those changes are negotiable matters.

Based on the foregoing, we conclude that management proposed and implemented a change in the flexitime schedules available to employees in the Management and Systems Branch. That change limited employees' choice of early starting and quitting times. The effect of the change was to preclude employees from commencing their workday earlier and to extend the hours that employees in the Branch had to be present during the afternoon from 1500 to 1600 hours. We find that the provisions of GAFBR 40-5 did not permit the elimination or limitation on flexitime for entire organizational components, as occurred in this case. Consistent with our decisions in Lowry AFB and Internal Revenue Service, we find that the Respondent was required to bargain over the substance and the impact and implementation of its decision to restrict the available flexitime schedules for employees in the Management and Systems Branch, unless the Union had waived its right to bargain over the issue.

C. The Union Did Not Waive Its Right to Bargain

When the Union president learned of the Branch Chief's proposal contained in the May 27, 1988, memorandum, he interpreted it as an attempt "to implement a change in the start and stop times of flex[i]time hours." Joint Exhibit 3. The Respondent's labor relations officer replied that no change to the Flexitime Plan or policy or its procedure was being made and, accordingly, denied the request to bargain. Judge's Decision at 7. The Respondent took the position that the Union waived its right to bargain on the change based on evidence that the Union had proposed a flexitime article in the negotiations for the 1979-81 agreement but withdrew its proposal after the flexitime plan devised by the committee was adopted.

The Authority has held that "[t]he duty to bargain in good faith under the Statute 'applies whenever management changes an established policy or practice pertaining to conditions of employment whether or not the matter is covered by a provision in the existing collective bargaining agreement.'" Customs Service, 29 FLRA at 900 (citations omitted). In this case, the Respondent changed an established practice pertaining to a condition of employment which was covered by a regulation, GAFBR 40-5. Thus, the Agency had a duty to bargain unless the Union had waived its right to bargain.

The Authority has long held that a waiver of the statutory right to bargain must be clear and unmistakable. See, for example, Internal Revenue Service, 29 FLRA 162, 167 (1987). The Judge stated that "[a]lthough various provisions of the regulation indicate changes in particular employee[s'] hours may be required to be changed to accomplish the mission of the agency, in my view those provisions are not addressed to changing the flex[i]time core hours set forth in the regulation and applicable to all employees. Rather, I view those provisions as directed to modifying individual employee hours within the specified beginning and ending flex[i]time core hours." Judge's Decision at 12. We agree with the Judge that although the provisions of the regulation permit supervisors to change employees' hours for mission requirements, the regulation does not permit managers to change or limit employees' flexitime hours for entire organizational components such as the Management and Systems Branch. We also agree with the Judge that "all that has been established [in this case] is that Respondent put into effect and maintained a regulation dealing with flex[i]time and the Union, prior to the case herein, made no demand to bargain on the matter." Id. at 14. Accordingly, in agreement with the Judge, we find that the Union has not waived its bargaining rights in this matter.

We find that the facts in this case are distinguishable from those in DGSC Richmond. In DGSC Richmond, the agency removed unit employees from flexitime work schedules, applying the terms of an existing flexitime policy that was set forth in an agency regulation. There is a key distinction between that case and the case here, however. In DGSC Richmond, the parties had negotiated a local supplemental agreement that incorporated agency policy to the extent that the policy was not inconsistent with the agreement. Therefore, the Authority found that by incorporating the flexitime policy in the supplemental agreement, the union had clearly and unmistakably waived its right to bargain over the flexitime policy. In the facts before us in this case, agency regulation or policy has not been included in a subsequent negotiated agreement. Accordingly, DGSC Richmond is not applicable here.

In agreement with the Judge, we find that the record does not demonstrate that the Union clearly and unmistakably waived its right to bargain over the issue of flexitime. Therefore, the Respondent's argument that the Union waived its right to bargain over the flexitime change is without merit.

D. Summary

We conclude that the Respondent provided the Union notice of its decision to remove certain employees in the Management and Systems Branch from their established flexitime schedules. However, the Respondent refused to bargain over the decision and its impact and implementation with the Union, as requested. The Respondent's refusal to bargain with the Union about the substance and the impact and implementation of the decision to restrict the use of flexitime by employees in the Management and Systems Branch constitutes a violation of section 7116(a)(1) and (5) of the Statute.(3)

VII. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Department of the Air Force, 416 CSG, Griffiss Air Force Base, Rome, New York shall:

1. Cease and desist from:

(a) Unilaterally instituting any change in the starting and quitting flexitime hours of its employees represented by the American Federation of Government Employees, Local 2612, AFL-CIO, the exclusive representative of certain of its employees, without affording the exclusive bargaining representative the opportunity to negotiate with respect to any proposed changes.

(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Upon request, reestablish the previous starting and quitting flexitime hours for employees in the Management and Systems Branch and afford the American Federation of Government Employees, Local 2612, AFL-CIO, the exclusive representative of certain of its employees, the opportunity to negotiate with respect to any proposed changes.

(b) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Base Commander and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, 10 Causeway Street, Room 1017, Boston, MA 02222-1046 in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally institute any change in the starting and quitting flexitime hours of our employees represented by the American Federation of Government Employees, Local 2612, AFL-CIO, the exclusive representative of certain of our employees, without affording the exclusive bargaining representative the opportunity to negotiate with respect to any proposed changes.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request, reestablish the previous starting and quitting flexitime hours for employees in the Management and Systems Branch and afford the American Federation of Government Employees, Local 2612, AFL-CIO, the exclusive representative of certain of our employees, the opportunity to negotiate with respect to any proposed changes.

_______________________________
(Activity)

Dated:__________ By:_____________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region I, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046 and whose telephone number is: (617) 565-7280.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The abbreviation "OPR" is not identified in the record.

2. Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. §§ 3401, 6101 and note, 6106, 6120-6133), which was made permanent in Pub. L. No. 99-196, 99 Stat. 1350 (1986).

3. We also conclude that the remedial Notice should be signed by the Base Commander and will modify the Judge's Order accordingly. See Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 32 FLRA 277, 280-81 (1988).