U. S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut and American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 1661

[ v55 p201 ]

55 FLRA No. 37

U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS, FCI DANBURY
DANBURY, CONNECTICUT
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON LOCALS
AFL-CIO, LOCAL 1661
(Charging Party/Union)

BN-CA-60527

_____

DECISION AND ORDER

February 26, 1999

______

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent, and cross-exceptions filed by the General Counsel.

      The complaint alleges in relevant part that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing a change in shift starting and stopping times without obtaining the union's consent to change the provision of a negotiated agreement that set those times. The Judge found that the Respondent repudiated the agreement provision, as the agreement was in effect at the time of the unilateral change, but that the Respondent properly terminated the provision upon expiration of the agreement because the provision dealt with a permissive bargaining subject.

      Upon consideration of the Judge's decision, the exceptions and cross-exceptions, and the entire record, we find that the Respondent repudiated the agreement provision on shift starting and stopping times, in violation of section 7116(a)(1) and (5) of the Statute. We further hold that the Respondent must reinstate the agreement provision for a period of not less than 75 calendar days (the time remaining in the term of the agreement at the time of the repudiation of the provision at issue), and that Respondent may, after giving valid notice, unilaterally terminate the agreement provision upon expiration of the 75 day reinstatement period. We adopt the Judge's findings, conclusions and recommended order to the extent consistent with this decision.

II.     Background

A.     The Facts

      The facts are fully set forth in the Judge's decision, and are briefly summarized here.

1.     The nature of the bargaining relationship and relevant agreement provisions

      The American Federation of Government Employees, Council of Prison Locals (AFGE), is the exclusive representative for a nationwide unit of corrections personnel employed by the Federal Bureau of Prisons (FBP). AFGE Local 1661 (or "Union") is the agent of AFGE for representing unit employees at the Danbury, Connecticut Federal Correctional Institution (Danbury FCI).

      On September 1, 1992, FBP and AFGE negotiated a nationwide collective bargaining agreement. The duration of the agreement was 3 years, unless notice of intent to renegotiate the agreement was given by a party during a window period prior to expiration of the agreement. If such notice was given, the agreement would automatically continue in effect for another 6 months past its previously established termination date. [n2] 

      Among other things, the nationwide agreement allowed for the negotiation of local supplemental agreements, so long as the local supplemental did not specifically conflict with a provision of the nationwide agreement. Local agreements on permissive matters, including subjects referenced in section 7106(b)(1) of the Statute, were not allowed. A local supplemental agreement would also be extended if the nationwide agreement was extended based on a notice to renegotiate, as described above.

      In March 1993, AFGE Local 1661 and Danbury FCI negotiated a local supplemental agreement. In relevant part, Article 18, section (a) of this local supplemental agreement set the starting and stopping times for employee work shifts at Danbury FCI. More specifi- [ v55 p202 ] ally, for Correctional Services employees, the day shift hours were from 8:00 a.m. to 4:30 p.m., with a half hour off duty for a meal during the shift. The two remaining shifts were to be 8 hours in duration, with employees on those shifts allowed to eat a meal on their posts during the shift. Thus, the evening shift was to run from 4:00 p.m. to 12:00 midnight, and the morning shift was to run from 12:00 midnight to 8:00 a.m.

2.     The events giving rise to the alleged violation

      As a result of litigation concerning overtime pay arising from shift schedules, FBP management wanted to establish uniform nationwide rules on when shifts would be considered to have begun and ended. To this end, FBP issued an Operations Memorandum to all activities, including Danbury FCI, on November 1, 1995. In this Memorandum, FBP instructed all activities to develop plans to ensure that shifts would be timed to begin and end in such a way that corrections officers would be able to pick up their equipment and be at the actual work site so as to relieve the previous shift in a timely manner. Thus, among other things, shift starting and stopping times would have to overlap in such a way as to ensure incoming employees enough time to pick up their equipment and arrive at their duty post in time to allow outgoing employees to turn in their equipment by the designated end of their shift.

      On November 2, 1995, the Warden of Danbury FCI met with the Captain who was in charge of correctional personnel, to discuss implementation of the Operations Memorandum. The Warden instructed the Captain to ensure that AFGE Local 1661 was provided with a copy of the Memorandum, and that Local 1661 have the opportunity to provide advice and suggestions on a program to implement the Memorandum.

      The Captain met with the President of AFGE Local 1661 on November 2, 1995. The Captain provided the Union President with a copy of the Operations Memorandum at that time, and mentioned the need for Danbury FCI management and AFGE Local 1661 to work out an implementation plan. [n3]  The Union President responded in relevant part that the March 1993 local supplemental agreement resolved the matters covered in the Operations Memorandum at Danbury FCI, until AFGE and FBP negotiated different terms at the national level. The Union President also said that the Union would not assist in formulating a plan to implement the Operations Memorandum because the existing local supplemental agreement governed shift starting and stopping times.

      After the November 2, 1995, meeting between the Captain and the Union President, the two had several further meetings. The latter consistently maintained on these occasions that the Union would not participate in formulating a plan to implement new starting and stopping times. The Union President indicated further that if management went ahead with implementation of a new plan for starting and stopping times, the Union would file an unfair labor practice (ULP) charge.

      In spite of the Union's warning, the Captain formulated a plan for Danbury FCI to implement the Operations Memorandum. This plan included new starting and stopping times for work shifts that were different than the times set in the March 1993 supplemental local agreement. More particularly, this plan called for the day shift to run from 7:45 a.m. to 4:15 p.m.; the evening shift from 3:45 p.m. to 12:15 a.m.; and left the morning shift unchanged except for Sunday, when it would run from 11:45 p.m. to 8:00 a.m. The plan was posted on December 15, 1995, in the form of a duty roster. A memorandum to all correctional officers from the Captain, explaining the reasons for the new shift starting and stopping times, was issued on December 16, 1995. It stated that the new shift hours would be effective on December 31, 1995. Danbury FCI implemented the new plan as scheduled.

      Based on a ULP charge filed by the Union, the General Counsel issued a complaint alleging that Danbury FCI violated section 7116(a)(1) and (5) of the Statute. More specifically, the complaint alleged in relevant part that Danbury FCI implemented the changes in shift starting and stopping times effective on December 31, 1995, without obtaining the Union's agreement to change the local supplemental agreement provision of March 1993 which established those hours.

B.     The Judge's Decision

      After a hearing, the Judge first rejected Danbury FCI's argument that the portion of the local supplemental agreement dealing with shift starting and stopping times was invalid because it dealt with a permissive bargaining subject within the meaning of section 7106(b)(1) of the Statute. According to Danbury FCI, the national agreement prohibited local agreements on permissive bargaining subjects. The Judge held that, while the national agreement did prohibit local supplemental agreements on permissive subjects, it also allowed local supplementals on any matter not in direct [ v55 p203 ] conflict with substantive provisions of the national agreement. As the national agreement did not contain any provision on shift starting and stopping times, there was no conflict between the national and local agreements, and the local agreement therefore was valid.

      The Judge next found that the local supplemental agreement was in effect on December 31, 1995, when the new shift times became effective. The extension of the national agreement effected by the parties at the national level automatically extended the local supplemental agreement of March 1993. Further, Danbury FCI admitted, in its answer to the ULP complaint, that the local supplemental agreement was in effect when the new shift hours were implemented. Accordingly, on finding that the new shift hours implemented by Danbury FCI in December 1995 were materially different than those contained in the local supplemental agreement, the Judge concluded that Danbury FCI repudiated the local agreement in violation of section 7116(a)(1) and (5) of the Statute.

      The Judge next found that by its November 1, 1995, Operations Memorandum, FBP, through Danbury FCI, provided the Union notice that it did not intend to be bound by starting and stopping times established in existing agreements past the termination date of those agreements. Thus, the Judge concluded that FBP was free to direct that shift starting and stopping times be changed upon the expiration of the local supplemental agreement. The Judge also noted in this connection, contrary to the General Counsel's argument, that section 2(d) of Executive Order No. 12,871 (E.O. No. 12,871) does not bar FBP from terminating provisions concerning permissive bargaining subjects, like shift starting and stopping times, upon expiration of the agreement. [n4] 

      The Judge then rejected Danbury FCI's claim that AFGE Local 1661 waived its bargaining rights by failing to request negotiations after learning of Danbury FCI's intention to change shift starting and stopping times. The Judge said in this connection that the Union "properly refused to help [Danbury FCI] violate its local agreements and did not thereby waive its right to negotiate." Judge's Decision at p. 19. Further, the Judge observed, the record did not establish that Danbury FCI in fact gave the Union notice of any specific proposal to change starting and stopping times. The Union was only made aware of general plans to change hours, not any specific proposal to do so prior to implementation of the changes. Accordingly, Danbury FCI's unilateral change in shift starting and stopping times, without providing notice of the change, also violated section 7116(a)(1) and (5) of the Statute.

      The Judge proposed a remedial order for the violations that called for Danbury FCI to rescind the change in starting and stopping times, reinstate the prior starting and stopping times established under the March 1993 local supplemental agreement for a period of 3 months, and thereafter change the reinstituted shift hours only after giving AFGE Local 1661 notice and the opportunity to bargain on any changes in the reinstituted shift times. The 3 month period was derived from the fact that the March 1993 local supplemental agreement would have expired approximately 3 months after Danbury FCI implemented the change in hours. [n5] 

III.     Positions of the Parties

A.     Danbury FCI Exceptions

      Danbury FCI first argues that changing shift starting and stopping times constitutes the exercise of the management right to assign work under section 7106(a)(2)(B) of the Statute, not section 7106(b)(1), as the Judge held. Danbury FCI then claims that, because the right to assign work was at issue, the local supplemental agreement provision on shift starting and stopping times was void ab initio, and could therefore be voided at any time. As a result, all Danbury FCI had to do to lawfully change shift starting and stopping times was to provide adequate notice and an opportunity for AFGE Local 1661 to bargain on the change. This it says it did, and therefore, no ULP was committed.

B.     General Counsel's Opposition and Cross-Exceptions

      First, the General Counsel argues that the claim concerning the right to assign work was raised for the first time in Danbury FCI's exceptions, and therefore cannot be considered pursuant to section 2429.5 of the Authority's Regulations. The General Counsel argues that even if Danbury FCI could raise the section 7106(a)(2)(B) issue, the claim is wrong on the merits. Shift starting and stopping times involve section 7106(b)(1) rights, the General Counsel asserts, and therefore, consideration of a section 7106(a) management right is unnecessary. [n6]  [ v55 p204 ]

      In its cross-exceptions, the General Counsel argues that the Judge erred in finding that FBP, through Danbury FCI, informed the Union that it did not intend to be bound by starting and stopping time provisions in existing agreements past the termination dates of those agreements. Second, the General Counsel argues, even with proper notice of intent to terminate, Danbury FCI could not terminate the shift starting and stopping time provision in the local supplemental agreement because, as a permissive bargaining subject, the President has elected to bargain on the matter in E.O. No. 12,871. Finally, the General Counsel claims, the Authority should clarify Danbury FCI's bargaining obligation under the Judge's remedial order.

C.     Danbury FCI's Opposition to the General Counsel's Cross-Exceptions

      In opposition to the General Counsel's cross-exceptions, Danbury FCI asserts that the Judge correctly found that the notice of intent to terminate on expiration the local agreement provision on shift hours was adequate. Next, Danbury FCI argues that E.O. No. 12,871 is not, as the General Counsel claims, an enforceable election by the President to bargain on section 7106(b)(1) matters. Danbury FCI also claims that the General Counsel's request to clarify Danbury FCI's bargaining obligation under the Judge's recommended order should be rejected. Further, Danbury FCI argues, even if the shift hours provision of the local supplemental agreement is a permissive bargaining matter, the Judge was correct when he concluded that Danbury FCI could unilaterally change the provision upon expiration of the local agreement.

IV.     Analysis and Conclusions

A.     There is no valid exception before the Authority concerning the Judge's holding that the local agreement provision establishing shift starting and stopping times concerns a matter referenced in section 7106(b)(1) of the Statute

      Danbury FCI argued before the Judge that the shift starting and stopping time provision of the local supplemental agreement concerns a matter identified in section 7106(b)(1) of the Statute. In its exceptions to the Authority, however, Danbury FCI argues that the local supplemental agreement provision does not concern a matter referenced in section 7106(b)(1) of the Statute, but rather pertains to the assignment of work under section 7106(a)(2)(B) of the Statute.

      For the reasons that follow, and in agreement with the General Counsel, we find that Danbury FCI cannot argue for the first time to the Authority on exceptions that the provision interferes with a section 7106(a)(2)(B) management right. Section 2429.5 of the Authority's Regulations provides in relevant part that the Authority will not consider "any issue, which was not presented in the proceedings before the . . . Administrative Law Judge." It is clear in the instant case that the agency did not raise the section 7106(a)(2)(B) management right issue before the Judge. Accordingly, pursuant to the regulation, it cannot do so now. U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 38 FLRA 701 (1990), rev'd on other grounds sub nom. U.S. Immigration and Naturalization Service v. FLRA, No. 91-70078 (9th Cir. 1992); Veterans Administration, Washington, D.C., 24 FLRA 9 (1986).

      Further, we conclude that section 2429.5 of the Authority's Regulations also precludes Danbury FCI from reversing, in its exceptions, the position it took before the Judge concerning whether the local supplemental agreement provision dealt with a matter referenced in section 7106(b)(1) of the Statute. Precedent governing federal judicial proceedings provides that changes of position on an issue dealt with below are covered under the general rule prohibiting the raising of new issues on appeal. See Southfork Systems, Inc. v. U.S., 141 F.3d 1124, 1131 n.3 (Fed. Cir. 1998); U.S. v. Mulinelli-Navas, 111 F.3d 983, 989 (1st Cir. 1997); Forbush v. J.C. Penney Co., 98 F.3d 817, 822 (5th Cir. 1996). In particular, taking on appeal the opposite side of the same issue is considered to be raising a new issue, and as such is barred. See, e.g., Davidson & Schaff, Inc. v. Liberty National Fire Insurance Co., 69 F.3d 868, 869 (8th Cir. 1995) (the rule against raising new issues on appeal "applies even more forcefully when the appellant took the opposite position" in the court below). We adopt that approach for applying section 2429.5 of our regulations to reversals of position on exceptions, such as here involved. Orderly decision making cannot be aided by allowing a party to urge one result below, and then argue the opposite position on exceptions to the Authority. Accordingly, Danbury FCI's exception to the Judge's recommended holding that the local agreement provision concerns a matter identified in section [ v55 p205 ] 7106(b)(1) of the Statute is not properly before us. Due to the absence of a valid exception on this issue, the Judge's conclusion on this point is adopted without precedential significance pursuant to section 2423.41 of the Authority's Regulations. U.S. Penitentiary, Florence, Colorado, 54 FLRA 30, n* (1998). [n7] 

B.     The appropriate remedy for the violation

      The Judge recommended issuance of a remedial order that called for reinstatement of the shift starting and stopping times established in the local agreement only for a length of time equivalent to the remaining duration of the agreement after its repudiation in December 1995. The Judge also recommended that Danbury FCI be required to maintain those shift times until it gives the Union notice of its intent to terminate that provision, and the opportunity to negotiate on the proposed change.

      We agree that reinstatement of the shift starting and stopping times established by the local supplemental agreement is generally an appropriate remedy for the violation found in this case. We recently discussed our remedial policy in Department of Defense Dependents Schools, 54 FLRA 259, 269-70 (1998). We stated there, among other things, that the purpose of ULP remedies is to restore, as far as possible, the status quo that would have obtained if the violation had not been committed. Id. at 269. Reinstatement of the shift hours provision of the local agreement would satisfy this remedial policy. [n8] 

      We disagree with the Judge, however, that the local agreement provision must be reinstated for a limited duration because the Union received through Danbury FCI proper notice of FBP's intent to unilaterally terminate upon expiration the provisions of local agreements like the one in this case that dealt with shift hours. In agreement with the General Counsel in his cross-exceptions, we conclude that Danbury FCI's repudiation of the local supplemental agreement provision on shift hours, based on the November 1995 FBP Operations Memorandum, does not constitute appropriate notice to the Union of an intent to terminate that provision.

      Authority precedent suggests that to be effective, a party must give notice that explicitly contains a statement of intent to terminate a provision dealing with a permissive bargaining subject. [n9] No case has been found where, as here, intent to terminate must be inferred from other actions, such as through the issuance of an operations memorandum by higher authority during the term of the agreement.

      Moreover, sound policy reasons support the General Counsel's claim that notice of intent to terminate an agreement provision on a permissive bargaining subject should be express, not implied. A contrary rule encourages confusion in the parties' bargaining relationship. A party should not have to guess whether negotiated agreement terms are in effect or not. Such matters are of critical importance in governing the parties' day-to-day labor-management relationship. [n10] 

      Accordingly, as the record reflects that there is no valid notice of termination upon expiration of the local supplemental agreement provision on shift hours, we do [ v55 p206 ] not concur in the portion of the Judge's recommended remedial order that limits reinstatement of the shift hours set in that agreement to the time period from repudiation to expiration. [n11]  Rather, we conclude that the 75 day period of reinstatement is the minimum amount of time for which those shift hours will be in effect. [n12]  If no valid notice of termination of the local supplemental agreement provision on shift hours is provided to the Union by Danbury FCI, then the hours set by that agreement will remain in effect indefinitely. [n13] 

      Finally, we decline to adopt paragraph 2.(c) of the Judge's recommended order, that requires Danbury FCI to accord the Union notice and an opportunity to bargain before the shift hours as established in the local supplemental agreement can be terminated. A party's right to terminate unilaterally a permissive bargaining subject is not contingent on first satisfying a bargaining obligation as to the substance, impact or implementation of the change. No precedent to the contrary was cited by the Judge or the parties. Moreover, this conclusion is supported by at least two policy reasons. First, since the termination of the permissive subject can only become effective on the expiration of an agreement, the Union would have the opportunity to bargain on the matter as part of the renegotiation of the expired agreement. Second, attaching bargaining obligations to termination of permissive bargaining provisions may discourage parties from engaging in bargaining on permissive subjects. Accordingly, paragraph 2.(c) of the Judge's recommended order will not be adopted.

V.     Order

      Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut, shall:

      1.     Cease and desist from:

      (a)     Repudiating the shift starting and stopping times established in Article 18, section (a), of the local supplemental agreement of March 29, 1993.

      (b)     In any like or related manner interfering with, restraining, or coercing bargaining unit employees in the exercise of their 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)     Rescind the change of shift starting and stopping times for Correctional Service employees which it implemented on December 15, 1995, by the posting of its quarterly roster.

      (b)     Upon recission of the change as set forth in subparagraph (a), above, reinstate the shift starting and stopping times for the Correctional Service employees as they had been established previously under Article 18, section (a) of the local supplemental agreement of March 29, 1993, such reinstated shift starting and stopping times to be maintained for a minimum of 75 calendar days, and such time thereafter as appropriate, until effective notice of termination of that provision is served on the American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 1661, by the U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut.

      (c)     Post at its facilities at FCI Danbury, Danbury, Connecticut, 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 Warden, 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.

      (d)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Boston Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply with this Order. [ v55 p207 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify our employees that:

WE WILL NOT repudiate the shift starting and stopping times established in Article 18, section (a), of the local supplemental agreement of March 29, 1993.

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

WE WILL rescind the change of shift starting and stopping times for Correctional Service employees implemented on December 15, 1995, by the posting of the quarterly roster.

WE WILL, upon recission of the change as set forth above, reinstate the shift starting and stopping times for the Correctional Service employees as they had been established previously under Article 18, section (a) of the local supplemental agreement of March 29, 1993, such reinstated shift starting and stopping times to be maintained for a minimum of 75 calendar days, and such time thereafter as appropriate, until effective notice of termination of that provision is served on the American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 1661.

      _______________________

      (Agency)

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, Boston Regional Office, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.


Opinion of Member Wasserman, concurring in part and dissenting in part.

      I concur with the foregoing opinion, except on one point. I would grant the General Counsel's cross-exception that contends that the shift provision of the local supplemental agreement must remain in effect indefinitely. For the reasons stated in my dissent in United States Department of Commerce, Patent and Trademark Office, 54 FLRA 360 (1998), petition for review pending, Patent Office Professional Association v. FLRA, No. 98-1377 (D.C. Cir. August 17, 1998), I believe that Executive Order 12871 served as an election to bargain over permissive subjects that was binding on the Respondent. The on-going election to bargain over section 7106(b)(1) matters essentially transforms the nature of the shift provision from the usual permissive topic that is unilaterally terminable at the end of a contract term to one which takes on mandatory effect. As a result, in my view, the Agency is not able to change the working conditions at issue upon termination of the contract without bargaining.


File 1: Authority's Decision in 55 FLRA No. 37
File 2: ALJ's Decision


Footnote # 1 for 55 FLRA No. 37 - Authority's Decision

   The separate opinion of Member Wasserman, concurring in part and dissenting in part, appears at the end of this decision.


Footnote # 2 for 55 FLRA No. 37 - Authority's Decision

   Notice of renegotiation was given in this case by September 1, 1995. The termination date of the national agreement therefore became March 1, 1996.


Footnote # 3 for 55 FLRA No. 37 - Authority's Decision

   The testimony at the hearing on this point was in conflict. As no exception to the Judge's credibility findings on this issue were filed, we set out the credited evidence in this decision.


Footnote # 4 for 55 FLRA No. 37 - Authority's Decision

   The express purpose of E.O. No. 12,871 is to facilitate labor-management partnerships in the executive branch. Section 2(d) of the Executive Order directs agencies to negotiate over subjects in section 7106(b)(1) of the Statute.


Footnote # 5 for 55 FLRA No. 37 - Authority's Decision

   In fact, the Judge found that implementation of the new shift hours, which constituted the repudiation of the local supplemental agreement provision on shift hours, occurred on December 15, 1995, 75 days prior to the expiration of that agreement on March 1, 1996.


Footnote # 6 for 55 FLRA No. 37 - Authority's Decision

   The General Counsel cites in this regard National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (where a proposal addresses matters that come within the terms of both sections 7106(a) and (b)(1), it is subject to negotiation at the election of the agency).


Footnote # 7 for 55 FLRA No. 37 - Authority's Decision

   Similarly, there is no exception before the Authority to the Judge's holding concerning repudiation. Accordingly, pursuant to section 2423.41 of the Authority's Regulations, we adopt the Judge's conclusion on this point without precedential significance. However, to the extent that the Judge suggests (Judge's Decision at pp. 19-20) that Danbury FCI committed a separate violation of section 7116(a)(1) and (5) by unilaterally implementing the change in shift starting and stopping times in December 1995, without giving the Union notice of the change and an opportunity to bargain, we decline to adopt this basis for finding a violation. Such a finding implies that the Respondent could lawfully have terminated the provision prior to the expiration of the contract if such notice had been given. Authority precedent is to the contrary. Federal Aviation Administration, Northwest Mountain Region, Seattle and Federal Aviation Administration, Washington, D.C. and Professional Airways Systems Specialists, 14 FLRA 644, 648 (1984) ("where the parties reach agreement on a matter which is outside the required scope of bargaining under the Statute . . . either party may elect not to be bound thereby upon the expiration of that agreement.") (Emphasis added).


Footnote # 8 for 55 FLRA No. 37 - Authority's Decision

   We note that Danbury FCI did not allege in its exceptions that the Judge's recommended order of temporary reinstatement of the shift times established in the local supplemental agreement would have any adverse effect on agency operations.


Footnote # 9 for 55 FLRA No. 37 - Authority's Decision

   See, e.g., Federal Aviation Administration, 23 FLRA 209, 211 (1986); United States Department of Transportation, Federal Aviation Administration, 20 FLRA 548, 560 (1985), remanded on other grounds sub nom. Professional Airways Systems Specialists v.FLRA, 809 F.2d 855 (D.C. Cir. 1987); United States Department of Transportation, Federal Aviation Administration, Los Angeles, California, 15 FLRA 100, 103 (1984); Federal Aviation Administration, Northwestern Mountain Region, Seattle, Washington , 14 FLRA 644, 649 (1984). In these cases, the Union notified management, after expiration of a negotiated agreement, that the Union no longer intended to be bound by an agreement provision dealing with a permissive bargaining subject.


Footnote # 10 for 55 FLRA No. 37 - Authority's Decision

   Indeed, in analogous areas of the law, such as determining whether a party has waived a statutory right, specificity is demanded. See, e.g., National Labor Relations Board, 46 FLRA 107, 112 (1992) (express statement by union representative that union did not want to be present at certain employee interviews constituted clear and unmistakable waiver of statutory right to be present at such interviews). No lesser standard should be applied if a party is seeking to reclaim the statutory right not to negotiate on a permissive bargaining subject, as in the instant case.


Footnote # 11 for 55 FLRA No. 37 - Authority's Decision

   The Authority has held that agreement provisions concerning permissive bargaining subjects do not expire automatically with the agreement. Rather, such a provision terminates "only when a party notifies the other that it will no longer be bound by the provision." Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1537 (1996).


Footnote # 12 for 55 FLRA No. 37 - Authority's Decision

   Notwithstanding the fact that the new shift hours established in contradiction to the local agreement did not become effective until December 31, 1995, we conclude that Danbury FCI repudiated the local agreement on December 15, 1995. It was on December 15th that Danbury FCI made it known to the Union and bargaining unit employees that the terms of the local supplemental agreement would no longer be followed, and that new working conditions implemented unilaterally by management would be followed instead. Accordingly, the actual length of time between repudiation and expiration of the local agreement is 75 days. This specific time period, rather than the Judge's 3 month period, is the basis for the reinstatement portion of our remedial order in this case.


Footnote # 13 for 55 FLRA No. 37 - Authority's Decision

   We reject The General Counsel's cross-exception, that the shift hours provision of the local supplemental agreement remains in effect indefinitely due to the President's alleged election to bargain on permissive bargaining matters in E.O. No. 12,871. United States Department of Commerce, Patent and Trademark Office, 54 FLRA 360 (1998), petition for review pending, Patent Office Professional Association v. FLRA, No. 98-1377 (D.C. Cir. Aug. 17, 1998).

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