United States, Department of the Army, Letterkenny Army Depot, Chambersburg, Pennsylvania (Respondent/Agency) and National Federation of Federal Employees, Local 1442 (Charging Party/Union)

[ v60 p456 ]

60 FLRA No. 90

UNITED STATES
DEPARTMENT OF THE ARMY
LETTERKENNY ARMY DEPOT
CHAMBERSBURG, PENNSYLVANIA
(Respondent/Agency)

and

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
LOCAL 1442
(Charging Party/Union)

BN-CA-01-0670
(58 FLRA 685 (2003))

_____

DECISION AND ORDER
ON REMAND

November 30, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit (the court). The court directed the Authority to take action consistent with the court's decision. NFFE, FD-1, IAMAW, Local 1442 v. FLRA, 369 F.2d 548 (D.C. Cir. 2004).

      For the reasons set forth below, we find that the Respondent violated the Statute, as alleged, and issue an order.

II.     Background

A.     Authority Decision in 58 FLRA 685

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Statute by unilaterally withdrawing from negotiations with the Charging Party and by terminating the School Age Services child care program (SAS program) without completing bargaining.

      The facts are set forth fully in 58 FLRA 685 and are only briefly summarized here. As part of the Base Realignment and Closure process, the Respondent was directed by higher Agency authority to transfer certain buildings to a local government. One of the buildings to be transferred was the location of the SAS program. Thus, in April 1997, the Respondent notified the Charging Party that it intended to close the SAS program between September 1998 and March 1999. Rather than submitting bargaining proposals within the contractually-established ten-day period, the Charging Party requested discussion of the proposed closure through the Labor-Management Partnership Committee (LMPC).

      In June 1999, the Charging Party filed an unfair labor practice charge against the Respondent, alleging that the SAS program had been improperly closed at that time (which was not the case) without the Respondent having fulfilled its obligation to bargain over that matter. The Charging Party withdrew from the LMPC in July 1999. The unfair labor practice charge was dismissed in August 1999, based upon a finding that the Union did not submit a timely bargaining demand when it was notified in April 1997 of the SAS program closure decision.

      The Charging Party received notice from the Respondent in January 2001 that the SAS program would be closed in August 2001. Although the Respondent and the Charging Party then negotiated over the matter, the Respondent stated it had erroneously engaged in the negotiations and withdrew from those negotiations. In withdrawing from the negotiations, the Respondent stated its belief, based upon the earlier dismissed unfair labor practice charge, that any timely demand to bargain over closure of the SAS program had to be in response to the Respondent's April 1997 notification to the Charging Party. The SAS program was closed in August 2001.

      The Judge found that the parties' agreement required the Charging Party to request bargaining within ten calendar days of receiving notice of the SAS program closure. Because the Charging Party chose not to submit a demand to bargain in 1997, when it first received notice of the proposed closure, the Judge concluded that the Charging Party waived its right to bargain. The Judge also concluded that there was nothing in the Charging Party's January 2001 proposals that the Charging Party also could not have submitted in April 1997, when it first learned of the SAS program closure. Accordingly, he recommended dismissal of the complaint.

      The Authority adopted the Judge's decision and recommended Order, and dismissed the complaint.

B.     The Court of Appeals' Decision

      On review of 58 FLRA 685, the court agreed with the Authority that the Charging Party waived its right to [ v60 p457 ] bargain over the 1997 SAS program closure notice by failing to request negotiations. However, the court found that the Respondent had an obligation to negotiate with the Charging Party over the 2001 closure of the SAS program. The court found, in this regard, that the Charging Party's waiver of its right to bargain over the earlier closure announcement did not forfeit the Charging Party's right to bargain over a closure that occurred several years later. The court also found that a new law, Pub. L. No. 106-58, § 643(a), 113 Stat. 430, 477 (1999), affected the impact of the SAS program closure by providing the Respondent a new way to mitigate the loss of child care services by offering tuition assistance to employees who enrolled their children in private child-care programs, after the SAS program facility closed. The court remanded the case to the Authority for further action consistent with its decision.

III.     Analysis and Conclusions

      It is long established that the duty to bargain under the Statute requires an agency to meet its obligation to negotiate prior to making changes in established conditions of employment. See Dep't of the Treasury, Bureau of Alcohol, Tobacco & Firearms, 18 FLRA 466, 467 (1985). However, the Authority has recognized that a union may waive its right to bargain over a proposed change in conditions of employment, either explicitly through agreement or implicitly through inaction. See, e.g., United States INS, Washington, D.C., 55 FLRA 69, 73 (1999). In this regard, an agency may implement changes in conditions of employment when a union fails to request bargaining within a reasonable period of time after being notified of proposed changes, fails to submit bargaining proposals within a contractual or other agreed upon time limit, fails to bargain, or fails to timely invoke the services of the Federal Services Impasses Panel after the parties have reached impasse. Id.; see also United States Dep't of the Air Force, Air Force Materiel Command, 55 FLRA 10 (1998).

      Here, the court found that the Respondent was obligated to bargain over the 2001 closure of the SAS program. There is no dispute that the Respondent began, but unilaterally withdrew from negotiations over the closure of the SAS program and closed the SAS program without completing bargaining. Thus, the Respondent violated § 7116(a) (1) and (5) of the Statute, as alleged.

      While we do not order a status quo ante remedy, we find that a retroactive bargaining order is appropriate to remedy the unfair labor practice. It is well established that the Authority has broad discretion to fashion appropriate remedies for unfair labor practices. See F.E. Warren Air Force Base, Cheyenne, Wyo., 52 FLRA 149, 160 (1996), citing Dep't of the Army, United States Army Commissary, Fort Benjamin Harrison, Indianapolis, Ind. v. FLRA, 56 F.3d 273, 277 (D.C. Cir. 1995) (reversing Dep't of the Army, United States Army Soldier Support Ctr., Fort Benjamin Harrison, Office of the Dir. of Fin. & Accounting, Indianapolis, Ind., 48 FLRA 6 (1993)). A retroactive bargaining order is appropriate where a respondent's unlawful conduct has deprived the exclusive representative of an opportunity to bargain in a timely manner over negotiable conditions of employment affecting bargaining unit employees. FAA, Northwest Mountain Region, Renton, Wash., 51 FLRA 35, 37 (1995). In particular, a retroactive bargaining order affords the parties the ability to negotiate and implement the results of their agreement retroactively, thereby approximating the situation that would have existed had the respondent fulfilled its statutory obligations. Furthermore, a retroactive bargaining order is used where it is clear that some employees have been harmed by an agency's unlawful conduct, but there is no way to ascertain their identity through compliance proceedings. See, e.g., Fed. Deposit Ins. Corp., Washington, D.C., 48 FLRA 313, 330-31 (1993) (Authority imposed retroactive bargaining order to remedy respondent's unilateral decision not to renew appointments of certain employees, requiring that any employee be made whole who, based on any agreement reached by the parties, is determined to have suffered a loss of pay, benefits, allowances, or differentials because of the respondent's unlawful conduct).

      In this case, there is no question that the Respondent's withdrawal from negotiations deprived the Charging Party of an opportunity to bargain before employees were affected, and at a time when negotiations would have been meaningful. A bargaining order that gives retroactive effect to any agreement reached by the parties at this time is appropriate because it permits the parties to determine--through negotiations--the best way to provide relief for employees who were adversely affected by the Respondent's unlawful refusal to bargain. See United States Dep't of the Air Force, Air Force Materiel Command, 54 FLRA 914, 922-23 (1998).

      Consistent with the court's opinion, we set aside the Authority's earlier decision in 58 FLRA 685 and find that the Respondent violated the Statute as alleged. To remedy the violation, we order the Respondent to bargain with the Charging Party regarding closure of the SAS program with a retroactive effective date to mitigate the loss of child-care services to those whose child-care arrangements were terminated. We further order [ v60 p458 ] that the Respondent post a notice provided by the Authority acknowledging its violation of the Statute. Finally, we adopt the following Order and Notice.

IV.     Order

      Pursuant to § 2423.41 of the Authority's Regulations and § 7118 of the Statute, the United States Department of the Army, Letterkenny Army Depot, Chambersburg, Pennsylvania, shall:

      1.      Cease and desist from:

           (a)      Failing or refusing to provide notice and engage in bargaining with the National Federation of Federal Employees, Local 1442, concerning closure of the SAS program.

           (b)      In any like or related manner interfering with, restraining or coercing its bargaining unit employees in the exercise of the rights assured them by the Statute.

      2.      Take the following affirmative action:

           (a)      Bargain on request with the National Federation of Federal Employees, Local 1442, concerning closure of the SAS program and apply any agreement which is reached retroactively to August 2001, when the School Age Services child care program ended, unless an earlier date is agreed to by the parties.

           (b)      Post the attached Notice on forms to be furnished by the Authority for 60 days. The Notice is to be signed by the Commanding Officer, Letterkenny Army Depot and is to be posted at all locations where employees represented by the National Federation of Federal Employees, Local 1442 are assigned, 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, defaced or covered by any other material.

           (c)      Pursuant to § 2423.41(e) of the Rules and Regulations of the Authority, notify the Regional Director of the Boston Region of the Authority in writing, within 30 days from the date of this Order,