42:1226(85)CA - - Air Force Accounting and Finance Center, Lowry AFB, Denver, CO - - 1991 FLRAdec CA - - v42 p1226

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[ v42 p1226 ]
42:1226(85)CA
The decision of the Authority follows:


42 FLRA No. 85

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AIR FORCE ACCOUNTING AND FINANCE CENTER

LOWRY AIR FORCE BASE

DENVER, COLORADO

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 2040

(Charging Party/Union)

7-CA-90687

DECISION

October 29, 1991

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 (AFAFC) and the General Counsel to the attached Decision of the Administrative Law Judge. Neither party filed an opposition to the other party's exceptions.

The complaint alleged that AFAFC violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by: (1) implementing a change in the alternate work schedules (AWS) for employees assigned to AFAFC's Office of the Staff Judge Advocate (SJA Office) without providing the Union with prior notice of the change and an opportunity to negotiate concerning the substance and impact and implementation of the change; and (2) dealing directly with bargaining unit employees concerning the change.

The Judge found that AFAFC committed all of the unfair labor practices alleged in the complaint except for the alleged violation for failure to bargain concerning the substance of the change. Therefore, the Judge recommended dismissal of that portion of the complaint.

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. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order. We agree with the Judge that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to provide notice and an opportunity to bargain with the Union concerning the impact and implementation of the change in the AWS and bypassing the Union by dealing directly with bargaining unit employees. We also agree with the Judge that AFAFC did not violate section 7116(a)(1) and (5) by refusing to negotiate concerning the substance of the change.

II. Background

As a result of an interest arbitration award issued to the parties in 1986, the hours of work under AFAFC's AWS were established as follows:

Flexible Arrival Time                  0630-0830

Morning Core Time                    0830-1100

Flexible Lunch Time                   1100-1230

Afternoon Core Time                 1230-1500

Flexible Departure Time             1500-1730

This schedule was implemented on January 4, 1987, and was subsequently listed in a revision of AFAFC's 1984 regulation on work schedules, AFAFCR 11-7, issued on April 1, 1987. The only substantive change in the 1987 regulation was the revision to the work schedule established by the interest arbitration award. The Union was notified of AFAFCR 11-7, but did not submit a request to bargain. AFAFCR 11-7 includes the following provisions:

3. Policies:

a. Participation in flexitime or compressed work schedules is encouraged to the maximum extent possible. All employees must understand and accept the increased responsibilities incurred with flexitime and compressed work schedules and must be willing to adjust their work schedules to meet job requirements (deadlines, conferences, meetings, and other required duties).

b. Alternate work schedules may be terminated by the AFAFC Commander if it is determined it has had or would have an adverse agency impact; that is, a reduction of productivity of the agency; a diminished level of services furnished to the public by the agency; or an increase in the cost of agency operations.

c. Supervisors will permit employees to schedule working hours to best meet the employees' individual needs to the extent permitted by working situations. For those employees on the compressed schedule, the scheduled day off will be negotiated between the supervisor and the employee 1 week prior to the pay period it will be taken. The supervisor makes the final determination.

. . . .

g. Employees must notify their supervisor 1 week before the beginning of the pay period if they wish to select and begin a different work schedule. Established work schedule should be considered mandatory during that pay period. However, employees may be permitted to change from an established work plan or change their scheduled day off with the approval of the supervisor on a case-by-case basis. An employee who wishes to change must wait until the next selection period to reenter a different work schedule.

Judge's Decision at 3.

Under the AFAFC AWS program, employees could elect a flexitime work schedule that would permit them to vary their starting and quitting times and the length of their lunch periods for an 8-hour day. They could also elect a compressed work schedule consisting of a "5-4-9" plan. The "5-4-9" plan would permit employees to work 9 hours for 8 days, 8 hours for 1 day, and then take 1 day off in addition to weekends during the 80-hour biweekly pay period.

On January 3, 1989, AFAFC Commander Metcalf issued a memorandum to all AFAFC employees informing them of his decision to institute expanded office hours in order to provide adequate office coverage from 6:30 a.m. to 5:30 p.m. Commander Metcalf ordered directors and supervisors to organize new work schedules to meet the 6:30 a.m. to 5:30 p.m. coverage. The Union President received a copy of the memorandum in his capacity as an employee. Because the times in the memorandum coincided with the existing hours of work under AFAFC's AWS regulation, the Union believed that there was no change in working conditions involving bargaining unit employees.

The Union President discussed the memorandum with Edwin Mankey, AFAFC's Director of Management Services, who is the chief management spokesman for labor relations. Mankey informed the Union President that, because the memorandum did not change working conditions of bargaining unit employees, there was nothing to negotiate. Mankey told the Union President that due to the variety of ways in which each AFAFC directorate might handle providing coverage, the Union would need to receive notice from each directorate on how that particular directorate would effectuate the change before requesting bargaining.

The Deputy Director of the SJA Office arranged for coverage for the first 2 weeks after January 3, 1989, by recruiting two volunteers. Thereafter, the Deputy Director and AFAFC Staff Judge Advocate determined that late office coverage could be handled by one employee and that this duty should be shared by members of the administrative staff. Prior to arriving at a permanent arrangement to provide office coverage, the Deputy Director was approached by a unit employee, a Legal Clerk, asking permission to meet with other members of the administrative staff for the purpose of discussing ways to provide late coverage. The administrative employees met, on or about January 11, 1989, and determined that each administrative employee could provide the late coverage approximately once every 2 weeks through the use of a rotating schedule. The employees submitted a proposed rotating schedule to the SJA Deputy Director. The Deputy Director and Staff Judge Advocate agreed to adopt the proposed schedule. The Union was not notified of the meeting or the proposed change in the AWS.

The SJA Office implemented the rotating schedule to provide late coverage on January 16, 1989. Prior to January 16, the unit employees assigned to the SJA Office had been free to select, during the week prior to each pay period, any flexitime and compressed tour within the limitations set by the flexible and core time bands established by AFAFCR 11-7. Before the change, employees had been permitted to begin work at 6:30 a.m., take a one-half hour lunch break, and end their day at 3:00 p.m. Since January 16, 1989, administrative employees assigned to the SJA Office at the GS-5 level and below have participated in the rotating schedule program, which requires them to work until 5:30 p.m. once every 2 weeks. The effect of the new work schedule on the administrative employees was that on the day that they worked until 5:30 p.m. they were not able to choose an arrival time within the flexible band hours of the AWS program.

Other than the requirement to work until 5:30 p.m. once every 2 weeks, the regular AWS which had been selected by the administrative employees remained in effect. The hours of the new work schedule were within the core hours already set in AFAFCR 11-7, but no one was previously required to work until 5:30 p.m. on either a regular or rotating basis. After the change, no overtime or loss of work was involved and employees were free to switch days with each other without supervisory approval if they could find someone with whom to trade. However, the late schedule: (1) "created some parking difficulties and concomitant personal safety concerns for employees" for the first 6 to 7 months of the change; (2) "affected the ability of an employee to participate in a car pool"; (3) limited "employees' access to public transportation"; and (4) "interfered with the employees' ability to schedule and attend evening classes," and to participate in other after work activities. Id. at 6-7.

There was no Union official or representative in the SJA Office and AFAFC did not notify the Union of the change in the arrival and departure times for the administrative employees. The SJA Deputy Director took the position that notice to the Union was not required under the provision of AFAFCR 11-7 for the "inconsequential adjustment" to employees' schedules. Id. at 7. The Union President discussed several unfair labor practice charges with Mankey during the January/February 1989 period, including a discussion concerning a work schedule change in the Directorate of Comptroller Support that was the subject of an unfair labor practice charge filed in Case No. 7-CA-90220.  The discussion did not include any change of schedules in the SJA Office.

The Union became aware of the implementation of the change in arrival and departure times for employees assigned to the SJA Office from a bargaining unit employee on August 28, 1989. The Union requested, and AFAFC refused, to negotiate concerning the change. The Union filed the unfair labor practice charge in this case on September 19, 1989.

III. Administrative Law Judge's Decision

1. Change in Conditions of Employment

The Judge found that requiring bargaining unit employees to work until 5:30 p.m. once every 2 weeks resulted in the loss of the opportunity to work a flexitime schedule. The Judge concluded that this change in the arrival and departure times for administrative employees was "a change in an established condition of employment for employees within the SJA Office." Judge's Decision at 9.

The Judge relied on the decision of another administrative law judge in Air Force Accounting and Finance Center, Denver, Colorado, Case No. 7-CA-90220 (August 7, 1990). That case involved the same parties and a similar change in a different AFAFC directorate. In that case, employees were required to adjust their arrival times for approximately 1 week out of 12 up to 2 hours and adjust their departure times up to 2 and one-half hours. The judge in Case No. 7-CA-90220 held that management's decision to change the duty rosters was not subject to a duty to bargain under section 6122(a) of the Federal Employees Flexible and Compressed Work Schedules Act of 1982,(1) (Work Schedules Act) and was consistent with AFAFCR 11-7, which contemplated supervisory adjustments in employees' hours of work to meet job requirements.

The Judge in this case found, for the reasons given by the judge in Case No. 7-CA-90220, that although the Work Schedules Act requires collective bargaining over the establishment and termination of AWS programs, as well as their implementation and administration, an agency has the "right under 5 U.S.C. § 6122(a) to adjust the arrival and departure times that employees have elected, in order to ensure that the duties of their positions are fulfilled."(2) Id. at 10. The Judge found that such a change in the hours of work of employees did not impinge on the program itself. Therefore, the Judge found that AFAFC "did not change the AWS program in the SJA [Office] in a manner that required negotiations over the decision" and recommended dismissal of that portion of the complaint. Id. at 11.

2. Impact and Implementation

The Judge stated that where an agency exercises its right under section 7106(b)(1) of the Statute not to bargain over certain changes in conditions of employment, the agency still has an obligation to bargain under section 7106(b)(2) and (3) if the change affects the conditions of employment of unit employees or if such an effect is reasonably foreseeable. The Judge found that "[t]he appropriate inquiry involves an analysis of the reasonably foreseeable effect of the change in conditions of employment at the time the change was proposed and implemented, including temporary and transitory effects." Id. at 12.

The Judge found that the change in employee schedules had an effect or reasonably foreseeable effect on conditions of employment. First, the Judge found that because the change of scheduling required unit employees to work until 5:30 p.m. once every 2 weeks, it eliminated their ability to, among other things, finish work by 3 p.m. or 4 p.m. under either the flexitime or compressed work schedule on those days. The Judge also found that not only did the late schedule cause employees to have to park in remote areas where there were potential risks to their personal safety, it interfered with the ability of employees to retain their carpools and obtain public transportation. Therefore, the Judge concluded that the change in work schedules "had an impact or reasonably foreseeable impact on conditions of employment, particularly with respect to hours of work, parking, personal safety, and transportation, so as to give rise to a bargaining obligation." Id. at 13 (citing U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 36 FLRA 655, 666-69 (1990)). Therefore, the Judge concluded that AFAFC violated section 7116(a)(1) and (5) of the Statute by failing to provide the Union with prior notice and the opportunity to bargain concerning the impact and implementation of the change.

3. Clear and Unmistakable Waiver

The AFAFC contended before the Judge that the Union waived any right to notice when it failed to request bargaining over the implementation of AFAFCR 11-7 in December 1986. The Judge stated that it is well established under Authority precedent "that an exclusive representative's waiver of the statutory right to bargain must be 'clear and unmistakable.'" Id. at 13. The Judge noted that a waiver of a union's statutory bargaining rights may be established in various ways, including an express agreement surrendering a right or bargaining history indicating the surrender of a right.

The Judge found that AFAFCR 11-7 provided for adjustments to schedules by a supervisor due to the job requirements of particular work situations. However, the Judge found that although these adjustments were authorized by the regulation, there was no provision of the regulation that authorized permanent changes. The Judge found that the change in hours of work permanently restricted some employees from following their selected work schedules on 1 day during each pay period. Because the regulation did not provide for permanent changes, the Judge concluded that the Union's failure to request bargaining on AFAFCR 11-7 "was not a clear and unmistakable waiver of its right to bargain on the impact and implementation of a permanent change." Id. at 13.

4. Timeliness of the Charge

The Judge stated that under section 7118(a)(4) of the Statute an unfair labor practice charge must be filed with the Authority within 6 months of the alleged unfair labor practice. The Judge noted that the unfair labor practice charge in this case was filed on September 19, 1989, over 8 months after the January 16, 1989 change in the arrival and departure times of employment in the SJA Office.

The Judge concluded that, because of an express statutory exception, the 6-month limitation period was inapplicable in this case. That is, under section 7118 of the Statute, the 6-month time limit does not bar a charge where

the person filing [the] charge was prevented from filing the charge during the 6-month period [by reason of] any failure of the agency . . . against which the charge is made to perform a duty owed to the person [or] any concealment which prevented discovery of the alleged unfair labor practice during the 6-month period.

Id. at 14. The Judge found that although AFAFC did not conceal the change in hours, AFAFC's failure to notify the Union prevented it from acting timely, whether it might have been to request bargaining or to file a charge during the 6-month period.

Furthermore, the Judge rejected AFAFC's argument that the Union had timely knowledge of the matter. The Judge found that Mankey, AFAFC's chief management spokesman for labor relations, assured the Union President in January 1989, that AFAFC's memorandum of January 3, 1989, did not describe a change in working conditions. The Judge credited the Union President's testimony that he did not have a discussion with Mankey concerning schedule changes in the SJA Office. The Judge found that, even assuming the Union President heard of rumors of the change in the SJA Office, the rumors did not constitute sufficient notice to the Union to discover the alleged unfair labor practice. Therefore, the Judge concluded that the charge was timely filed.

5. Bypass of the Union

The Judge found that the SJA Deputy Director gave a unit employee permission to meet with other unit employees to decide how to provide late office coverage. As a result of the meeting, the employees developed a rotating schedule as a means of providing the desired coverage. The employees' proposal was approved and implemented by AFAFC. The Union was not notified of the meeting or the implementation of the change in work schedules.

The Judge found that the AFAFC's direct dealing with unit employees, seeking their opinions and proposals concerning the procedures which management would observe in providing late office coverage, encompassed matters clearly bargainable with the Union. Therefore, the Judge concluded that AFAFC bypassed the exclusive representative in violation of section 7116(a)(1) and (5) of the Statute.

6. Remedy

The Judge found that a status quo ante remedy was warranted in this case because nothing in the record demonstrated that such a remedy would disrupt the efficiency and effectiveness of AFAFC's operations.

IV. Positions of the Parties

A. The General Counsel's Exceptions

The General Counsel excepts to the Judge's conclusion that AFAFC did not violate section 7116(a)(1) and (5) of the Statute by refusing to provide the Union with prior notice and an opportunity to negotiate over the substance of the change in arrival and departure times for bargaining unit employees in the SJA Office. The General Counsel asserts that AFAFC's change of the existing hours of work selected by employees was a significant revision and triggered an obligation to negotiate over the substance of the change. The General Counsel argues that the Judge failed to follow Authority precedent in National Association of Government Employees, Local R12-167 and Office of the Adjutant General, State of California, 27 FLRA 349 (1987), reversed as to other matters sub nom. Illinois National Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988), where the Authority found that alternate work schedules are fully negotiable, subject only to provisions of the Work Schedules Act itself.

The General Counsel maintains that the Union "possessed the statutory right to negotiate concerning the substance of the change, and that at no time did the Union limit or waive its right to negotiate over this matter." General Counsel's Exceptions at at 9. The General Counsel argues that it cannot be concluded that there was a waiver "because the undisputed facts establish that there were no negotiations pursued, and no agreements reached, with respect to the procedures for implementing the alternate work schedule[.]" Id. at 11. The General Counsel argues that "in the absence of any negotiations or bargaining history there can be no waiver by the Union of its rights." Id.

B. Respondent's Exceptions

First, the Respondent excepts to the Judge's finding that the Union filed a timely unfair labor practice charge. Relying on United States Department of Labor, 20 FLRA 296 (1985) (Department of Labor), reversed as to other matters sub nom. American Federation of Government Employees, Local 2513, AFL-CIO v. FLRA, 834 F.2d 174 (D.C. Cir. 1987); United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Houston District, 20 FLRA 51 (1985) (Department of the Treasury), petition for review denied sub nom. National Treasury Employees Union v. FLRA, 798 F.2d 113 (5th Cir. 1986); and Veterans Administration and Veterans Administration Medical Center, Lyons, New Jersey, 24 FLRA 255 (1986) (Veterans Administration), the Respondent argues that, under section 7118(a)(4) of the Statute, an unfair labor practice charge must be filed with the Authority within 6 months of the alleged unfair labor practice. The Respondent argues that if an unfair labor practice charge is predicated on a unilateral change in conditions of employment, "the time for filing the unfair labor practice charge runs from the date of the change and not from the date the Union was or should have been actually notified of the change." Respondent's Exceptions at 5-6. The Respondent contends that the time limit assumes that management has not acted to prevent the Charging Party from learning of the changes through concealment of the changes. The Respondent argues that although the Union President knew of the change as early as January or February 1989, a charge was not filed in this case until September 19, 1989. Therefore, the Respondent urges that this case should be dismissed because the charge was untimely filed.

Second, the Respondent argues that "the Union was given a chance to bargain the current AFAFC Regulation 11-7 in December 1986 . . . ." and "did not request to bargain." Id. at 7. The Respondent claims that because the Union failed to request bargaining over the revision of AFAFC Regulation 11-7, the Union waived its right to be notified of changes under that regulation.

Third, the Respondent asserts that it has the right to adjust the arrival and departure times that employees have elected in order to ensure the duties of their positions are fulfilled. The Respondent maintains that "[n]o change in the hours of the employees occurred within the hours the Respondent could work the employees based on the arbitration award and its incorporation into AFAFC Regulation 11-7." Id. at 7-8. Therefore, the Respondent argues that "[n]o duty to bargain impact and implementation existed since the schedule was merely de minimis." Id. at 8. In this regard, the Respondent argues that: (1) there was no change in employees' work hours; (2) there was no overtime or loss of money; and (3) employees' regular work schedules remained in effect except for the day they stayed until 5:30 p.m.

Finally, the Respondent contends that there was no bypass of the Union in this case because "[t]he employees volunteered to come up with a schedule on their own." Id. at 12. The Respondent argues that there could be no bypass under these circumstances.

V. Analysis and Conclusions

A. The Charge Was Timely Filed

Section 7118(a)(4) of the Statute provides that no complaint may be issued based on any alleged unfair labor practice that occurred more than 6 months before the filing of the charge. The change in the AWS in the SJA Office occurred on January 16, 1989. Although the Union was aware that a memorandum had been issued in January 1989, to all AFAFC employees concerning expanded office coverage for all AFAFC offices, there was no knowledge by the Union of any schedule changes or plans to change schedules in the SJA Office. The Union found out about the change from a bargaining unit employee on August 28, 1989, and filed an unfair labor practice charge on September 19, 1989, 8 months after the change. The AFAFC argues that the time for filing an unfair labor practice charge runs from the date of the change and not from the date the Union was or should have been notified of the change. Therefore, AFAFC argues that the charge was filed untimely.

In U.S. Department of the Air Force, Williams Air Force Base, Chandler, Arizona, 38 FLRA 549 (1990), the Authority adopted the Judge's finding that, under section 7118(a)(4), the 6-month time period for filing an unfair labor practice charge will not begin running until the alleged unfair labor practice is discovered, if the charging party was prevented from filing the charge during the 6 months after the alleged unfair labor practice occurred because of a failure on the part of the agency to perform a duty owed to the charging party, or because concealment prevented the discovery of the alleged unfair labor practice within the 6-month period.

Here, the AFAFC failed to notify the Union of the change in employees' hours of work in the SJA Office, thereby failing to perform a duty owed to the Union. The Union was unaware of the change in the SJA Office until it discovered the change on August 28, 1989. While there is no evidence of an intentional concealment, the Union had no knowledge of the change in the AWS in the SJA Office within 6 months of the date the change occurred. Therefore, we find that the charge, filed within weeks after the Union learned of the change, is timely filed.

The facts in Department of Labor, Department of the Treasury, and Veterans Administration cited by the AFAFC are distinguishable from those in this case. In the cases cited by the Respondent, the union found out about the change in conditions of employment prior to the 6-month time limit but did not file the unfair labor practice charges until after the 6-month time limit expired. In this case, the Union did not learn about the change until 7 months after the change and filed the unfair labor practice charge 1 month later.

B. The Respondent Is Required to Bargain on the Impact and Implementation of, But Not the Substance of, the Change

Consistent with our decision in Air Force Accounting and Finance Center, Denver Colorado, 42 FLRA No. 84 (1991) (Air Force Accounting and Finance Center), we find, in agreement with the Judge, that AFAFC violated section 7116(a)(1) and (5) of the Statute by implementing a change in the arrival and departure times for employees assigned to AFAFC's Office of the Staff Judge Advocate without providing prior notice and an opportunity to negotiate concerning the impact and implementation of the change. Consistent with our decision in Air Force Accounting and Finance Center, we also adopt the Judge's findings and conclusion that AFAFC did not violate section 7116(a)(1) and (5) by refusing to bargain on the substance of the decision to require adjustments in arrival and departure times.

We note that this case is distinguishable from U.S. Department of the Air Force, 416 CSG, Griffiss Air Force Base, Rome, New York, 38 FLRA 1136 (1990) (Griffiss Air Force Base). In Griffiss Air Force Base, the Authority found that the substance of a change in the flexible hours or flexible bands during which employees could choose to start and end the workday was negotiable. Specifically, the agency in that case changed the flexible arrival times from 6:30 a.m. to 9:00 a.m. to 7:15 a.m. to 9:00 a.m. The case before us does not involve a change in the flexible hours during which an employee may elect to start or end the workday. The flexible hours for employees in the Directorate were prescribed in AFAFCR 11-7--the flexible arrival times were from 6:30 a.m. to 8:30 a.m., and the flexible departure times were from 3:00 p.m. to 5:30 p.m. We note, contrary to the General Counsel's argument, that those times were not changed by the Commander's memorandum or by the rotating schedules established in the Directorate, nor did implementation of the memorandum and the schedule necessitate any change in those times. Rather, this case concerns the Respondent's right under section 6122(a) of the Work Schedules Act to adjust employee arrival and departure times within the flexible hours of the AWS to ensure office coverage during the hours that the office was open for business.

C. The Respondent Unlawfully Bypassed the Union

We agree with the Judge, for the reasons stated by him, that AFAFC violated section 7116(a)(1) and (5) of the Statute by bypassing the Union and dealing directly with unit employees concerning a change in a condition of employment. Management's approval and implementation of the bargaining unit employees' proposal to provide late coverage of the SJA Office, affected the general conditions of employment of those employees. Management's conduct in bypassing the Union and dealing directly with unit employees inherently undermines the status of the Union and constitutes a violation of the Statute. See Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 22 FLRA 91, 114 (1986).

D. The Union Did Not Waive Its Right to Bargain

The duty hours at AFAFC were set in 1986 as a result of an interest arbitration award. The hours, including flexible and core-time bands, were subsequently incorporated into AFAFC's regulation on work schedules, AFAFCR 11-7, on April 1, 1987. The Union was notified of AFAFCR 11-7, but did not request to bargain. AFAFC argues that the Union waived its right to be notified of changes in employees' arrival and departure times because the Union did not request to bargain over the revision of the regulation.

It is well established that the duty to bargain under the Statute requires that, absent a clear and unmistakable waiver of bargaining rights, parties satisfy their mutual obligation to bargain before implementing changes in conditions of employment affecting unit employees. See, for example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395 (1990). The Authority stated in Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA 1060, 1066 (1991) (Marine Corps Logistics Base), petition for review filed sub nom. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, No. 91-1211 (D.C. Cir. May 9, 1991) that "[a]lthough the mere failure to request bargaining with regard to past management actions, without more, does not extinguish the right to request bargaining when a further management action occurs, . . . in certain circumstances a waiver also could be established by past practice." However established, a waiver of a union's statutory rights must be clear and unmistakable. U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 770, 784 (1990).

In agreement with the Judge, we reject the Respondent's argument that the Union waived its right to be notified of changes in employees' arrival and departure times by failing to request bargaining over the revision of the regulation. Nothing in the revision of the regulation or the Union's failure to request bargaining over the revision demonstrates that the Union clearly and unmistakably waived its right to be notified about, and to bargain over the impact and implementation of, changes in the arrival and departure times of employees to ensure sufficient office coverage. Moreover, once the Union found out about the change in the AWS, it requested negotiations, but the Agency refused to negotiate. Based upon the foregoing, we reject the AFAFC's argument that the Union waived its right to bargain concerning the impact and implementation of the change in arrival and departure times in the SJA Office.

VI. Summary

We conclude that the Respondent failed to give prior notice to the Union concerning the change in the AWS of bargaining unit employees in the SJA Office and failed and refused to bargain with the Union over the impact and implementation of the change. We also find that the Respondent unlawfully bypassed the Union when it dealt directly with unit employees concerning the change in the AWS. The Respondent's above actions constitute violations of section 7116(a)(1) and (5) of the Statute. The allegations of the complaint that the Respondent violated the Statute by failing and refusing to bargain over the substance of its change in the AWS will be dismissed.

VII. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Air Force Accounting and Finance Center, Lowry Air Force Base, Denver, Colorado shall:

1. Cease and desist from:

(a) Failing and refusing to give adequate notice to, and upon request, bargain with the American Federation of Government Employees, Local 2040, AFL-CIO, the exclusive representative of certain of its employees, concerning changes in the requirements governing employees' arrival and departure times, without affording the exclusive bargaining representative the opportunity to bargain with respect to the impact and implementation of the changes.

(b) Bypassing the American Federation of Government Employees, Local 2040, AFL-CIO, the exclusive representative of certain of its employees, and dealing directly with bargaining unit employees regarding proposed changes in their conditions of employment.

(c) In any like or related manner, interfering with, restraining or coercing certain of 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 of the American Federation of Government Employees, Local 2040, AFL-CIO, the exclusive representative of certain of its employees, rescind the changes in arrival and departure times implemented in the Office of the Staff Judge Advocate on January 16, 1989, and afford it the opportunity to bargain with respect to the impact and implementation of the changes.

(b) Post at its facilities in Denver, Colorado, 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 Commander, Air Force Accounting and Finance Center, 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 ensure that such Notices are not altered, deface, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order as to what steps have been taken to comply.

The allegations of the complaint that the Air Force Accounting and Finance Center violated the Statute by failing and refusing to bargain over the substance of the change in the alternate work schedule are dismissed.

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 fail and refuse to give adequate notice to, and upon request, bargain with the American Federation of Government Employees, Local 2040, AFL-CIO, the exclusive representative of certain of our employees, concerning changes in the requirements governing employees' arrival and departure times, without affording the exclusive bargaining representative the opportunity to bargain with respect to the impact and implementation of the changes.

WE WILL NOT bypass the American Federation of Government Employees, Local 2040, AFL-CIO, the exclusive representative of certain of our employees, and dealing directly with bargaining unit employees regarding proposed changes in their conditions of employment.

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

WE WILL, upon request of the American Federation of Government Employees, Local 2040, AFL-CIO, the exclusive representative of certain of our employees, rescind the changes in arrival and departure times implemented in the Office of the Staff Judge Advocate on January 16, 1989, and afford it the opportunity to bargain with respect to the impact and implementation of the 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, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204, and whose telephone number is: (303) 844-2774.




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

1. Federal Employees Flexible and Compressed Work S