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The decision of the Authority follows:
18 FLRA No. 29 U.S. LIBRARY OF CONGRESS Respondent and CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION (CREA) Charging Party Case No. 3-CA-30473 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed. The Respondent, the General Counsel, and the Charging Party filed exceptions to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendation that the complaint be dismissed. The Authority agrees with the Judge's finding that, by executing the expedited bargaining agreement on April 12, 1982, the Union clearly and unmistakably waived its right to bargain over compressed workweek scheduled and that the Respondent therefore did not violate section 7116(a)(1) and (5) of the Statute as alleged when it later declined to negotiate on April 5, 1983, concerning the Union's proposed maxiflex, a form of compressed workweek scheduling. /1/ See Department of the Treasury, United States Customs Service, Region I, Boston, Massachusetts, and St. Albans, Vermont District Office, 10 FLRA 566 (1982). Accordingly, the Authority shall dismiss the complaint. /2/ ORDER IT IS ORDERED that the complaint in Case No. 3-CA-30473 be, and it hereby is, dismissed. Issued, Washington, D.C., May 24, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Mr. Royce Crocker For the Charging Party Patricia Eanet Dratch, Esquire For the General Counsel Martin F. O'Donoghue, Jr., Esquire For the Respondent Before: BURTON S. STERNBURG, Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Sec. 7101, et seq. and the Rules and Regulations issued thereunder. Pursuant to a charge filed on May 3, 1983, by the Congressional Research Employees (CREA), (hereinafter called the Union or CREA), a Complaint and Notice of Hearing was issued on July 22, 1983, by the Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges that the U.S. Library of Congress, (hereinafter called the Respondent or Library), violated Sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by virtue of its actions in refusing to bargain with CREA over "alternative work schedules." A hearing was held in the captioned matter on October 4, 1983, in Washington, D.C. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post-hearing briefs on November 14, 1983, which have been duly considered. Upon the basis of the entire record, including my observation of the witness and his demeanor, I make the following findings of fact, conclusions and recommendations. Findings of Fact The Union is the exclusive collective bargaining representative of a unit of employees working in Respondent's "Congressional Research Service." On or about September 20, 1979, the Union and the Respondent executed a collective bargaining agreement which expired in October 1982. /3/ Article IV, Section 3A of the collective bargaining agreement provides as follows: A. During the term of this Agreement, the Association shall have the right to meet, consult, and bargain at reasonable times with the Library with respect to changes proposed by the Association in personnel policies, practices, procedures, and matters affecting working conditions. Provided, however, any subject or matter which is covered in this Agreement or which was discussed or presented during negotiations, may only be reopened with the consent of both parties. Article XXV of the collective bargaining agreement, entitled FLEXITIME provides in pertinent part as follows: Section 1. The Library agrees to the adoption of 'flexitime,' compatible with the operating requirements of CRS, as determined by CRS management. For the purpose of this Section, 'flexitime' is defined as a work schedule under which employees are permitted to vary their working hours on a daily basis within general schedules of working hours and 'core hours' during which all employees are required to be at work. Section 2. The Library agrees to develop, in cooperation and consultation with the Association, a written plan or plans for each CRS Division, and other organizational units where appropriate, specifying those employees who are eligible to 'flex' and the 'core hours' required for employees to be at work. Such plans will be completed no later than (60) days after the effective date of this Agreement. On October 6, 1980, the Union and the Respondent, pursuant to Article XXV quoted above, executed a Flexitime Agreement which was a supplement to the collective bargaining agreement. Section 5 of the Flexitime Agreement provides as follows: 5. This plan shall be a supplement to the contract and shall terminate upon the expiration of the second Collective Bargaining Agreement between the Library of Congress and the Congressional Research Employees Association, unless the current contract is extended to March 20, 1982, whereby this plan shall terminate on March 20, 1982, unless otherwise agreed by the parties. /4/ Section 2 of the Flexitime Agreement provides as follows: 2. For the purposes of this plan, 'flexitime' is defined as a work schedule under which employees are permitted to vary their working hours on a daily basis within general schedules of working hours and 'core hours' during which all employees are required to be at work. According to the uncontested testimony of Mr. Brown, Union President, under the Flexitime Agreement, employees are required to work eight hours per day. "They can vary their starting and quitting times as long as they are there eight hours a day and for the required core hours each day." Further according to Mr. Brown, at the time the Flexitime Agreement was negotiated the employees working for Respondent were prohibited by the Fair Labor Standards Act from participating in a "Maxiflex" plan which allowed employees to work more or less than eight hours per day as long as they did work 80 hours in a bi-weekly pay period. /5/ At a time unspecified in the record, the parties timely reopened the collective bargaining agreement and commenced in either late December of 1981 or January 1982 negotiations for a new contract. The Union's proposal for a new contract "referenced many if not all of the articles contained in the expired agreement and some new articles." Among the proposals submitted by the Union was one involving Alternative Work Schedules. The latter proposal read as follows: Section 1. The Library agrees to adopt alternative work schedules including, but not limited to, a compressed workweek, for CRS employees where not prohibited by applicable law. Section 2. The Library agrees to take all possible steps to achieve any necessary change in law to allow CRS employees to have alternative work schedules, including but not limited to, a compressed workweek schedule. Section 3. Where alternative work schedules for CRS employees are not prohibited by applicable laws, the Library shall establish in consultation with the Association such plans within 50 work days of the effective date of this Agreement. The Association shall be given the opportunity to comment in writing and to meet, consult and negotiate with management on each plan. Section 4. Any application of alternative work schedules including but not limited to, a compressed workweek in CRS shall be voluntary, at the discretion of the employee(s). After several months of bargaining over provisions for a new collective bargaining contract the parties realized that negotiations would be "quite protracted" and mutually agreed to limit the number of proposals which would be subject to the ongoing negotiations. To this end, the parties on April 12, 1982, executed an "Expedited Bargaining Agreement" which limited bargaining to six proposals, three from each side. It was further agreed that all the other remaining provisions of the expired contract, including Article IV, Section 3A, known or referred to as the "Zipper Clause" would remain in effect and be included in the new contract along with the six provisions or proposals to be negotiated. The pertinent provisions of the Expedited Bargaining Agreement read as follows: It is hereby agreed by and between the Library of Congress and the Congressional Research Employees Association this 12th day of April 1982 that in order to expedite current collective bargaining negotiations over a new Collective Bargaining Agreement between the parties, the parties agree that: (1) On April 12, 1982, the parties shall mutually and simultaneously exchange a list of three (3) articles from the proposals contained in each respective side's proposals which they are presently negotiating. Each proposed article shall be limited to those specific proposals presently included in the article of the same title in the respective bargaining proposal. (2a) The proposed articles on each list shall thereafter be consolidated and it is agreed that such articles are the only articles to be negotiated between the parties. (2b) The remaining articles in the current Agreement which have not been denominated by the parties to be negotiated shall be considered as agreed to (and are set out as an appendix to this agreement) and made part of any Agreement subsequently agreed to between the parties. The parties agree to continue the separate negotiation process previously agreed upon for the Employee Assistance article. (3) The parties further agree that in negotiating the articles as set out in (2a), negotiations shall be limited to the articles as set out in 2(a) including the specific language of the proposals now on the table and neither party in making counterproposals may raise additional issues and/or new matters not presently contained in either sides' proposals set out in (2a); neither party shall, after having received timely notice of objection from the other party, insist upon any provision which would modify, delete, amend, ignore, add to, subtract from, or otherwise alter or supplement the terms of the agreed upon articles as set out in 2(b), . . . . Pursuant to the above quoted agreement, the Union chose to bargain over Career Opportunity, Rights of Employees and Grievance Procedures. The Union did not select Flexitime or Alternate Work Schedules as one of the subjects for the expedited negotiations and admittedly dropped such subjects from the negotiations. According to Mr. Brown, although he was well aware of pending legislation that would give the Union the right to bargain over Compressed Work Weeks and/or Maxiflex, he, as the Union's chief representative, declined to select such subjects for inclusion in the expedited negotiations because he was not sure that the pending legislation would pass and be signed into law. Mr. Brown further testified that he had been actively campaigning on the hill for legislation which would give the Library employees the right to negotiate for compressed work weeks and that the Senate Committee considering such legislation, on March 30, 1982, some ten days prior to the executive of the expedited bargaining agreement, unanimously recommended the passage of a bill which included the Library employees as one of the Government agencies eligible to negotiate for "Compressed Work Week" schedules. Following the submission of the three proposals by each side, the parties commenced bargaining. As of the time of the instant hearing negotiations had not been concluded due to the fact that parties were awaiting the decision of the Federal Labor Relations Authority on a number of negotiability decisions. On July 23, 1982, Congress enacted the Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. 6120 et seq, P.L. 97-221, which for the first time, gave the employees of the Library of Congress the right to negotiate for Compressed Work Schedules that allowed employees to work more or less than eight hours a day provided that they work eighty hours every two weeks. On or about April 5, 1983 the Union submitted to the Respondent a MAXIFLEX PLAN /6/ predicated on the newly enacted legislation and requested bargaining thereon. The proposed plan, if adopted as written, would have substantially changed many of the provisions of the existing Flexitime Agreement executed by the parties on October 6, 1980, as a supplement to the then existing collective bargaining agreement and which by its terms was not due to terminate until the "expiration of the second Collective Bargaining Agreement" between the parties. On or about April 20, 1983, Respondent mailed a Memorandum to the Union wherein it refused to bargain over the Union's April 5, 1983, proposal. The memorandum reads as follows: I am in receipt of your request to bargain over CREA's April 5, 1983 Maxiflex Plan. As you are aware, pursuant to the terms of Article XXV, Section 2, Flexitime, of the now expired Master Collective Bargaining Agreement between the Library of Congress and Congressional Research Employees Association, the parties negotiated and signed a written Flexitime Plan for all employees of CRS on October 6, 1980. Section 5 of said agreement provided: This plan shall be a supplement to the contract and shall terminate upon the expiration of the second Collective Bargaining Agreement between the Library of Congress and the Congressional Research Employees Association, unless the current contract is extended to March 20, 1982, whereby this plan shall terminate on March 20, 1982, unless otherwise agreed to by the parties. As you are well aware the "current contract" of the parties, was not extended until March 20, 1982 pursuant to Section 1 of Article XXVI. Rather the contract was reopened for renegotiation and thus the Flexitime Plan, a supplement to the Master Agreement, does not terminate until the expiration of the second Collective Bargaining Agreement between the parties. (Section 5, supra). Further, the Library does not agree to reopen the subject of Flexitime (hours of duty of employees) until the Flexitime Plan Agreement of October 6, 1980 expires. (See Section 3A of Article IV of the expired Master Agreement.) Further, the Library's duty to bargain over flexible and compressed work schedules under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 is subject to the terms of the Collective Bargaining Agreement existing between the parties. Title 5 USC, Section 6130(a)(1) provides: "In the case of employees in a unit represented by an exclusive representative, any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative." Therefore Congress recognized that our duty to bargain was to be subject to the terms of our existing flexitime agreement (Sec. 5, supra) with you. Further, even in the absence of this contractual bar to negotiate (Sec. 5, supra), after the Master Agreement was reopened for renegotiation, CREA made a proposal on November 13, 1981 which provided, in pertinent part, an article on Alternative Work Schedules in anticipation of the new law and also an article on flexitime. Later in March 1982, on the eve of the Act of 1982 being passed, the parties entered into an agreement limiting the bargaining. Pursuant to the terms of said agreement, CREA, in exercising its choice of articles to negotiate, voluntarily abandoned and withdrew its proposals over the subject of alternative work schedules, including compressed work week and also the proposed article on flexitime. CREA again waived its right to bargain on the subject of compressed work week. Your request to bargain at this time is denied. Discussion and Conclusions The General Counsel takes the position that inasmuch as compressed work plans and flexitime plans are "two different types of alternative work schedules," the existence of the "flexitime agreement" does not in the absence of any probative evidence supporting a waiver, prevent the Union from requesting negotiations with respect to a compressed work schedule prior to the expiration of the existing flexitime agreement. Additionally, the General Counsel takes the position that Union did not and could not waive its right to bargain over compressed work schedules by withdrawing its alternate work schedule proposal from the bargaining table in March 1982 or by signing the expedited bargaining agreement in April of 1982, since the Federal Employees Flexible and Compressed Work Schedules Act of 1982 had not been enacted. Not having the right to bargain over compressed work schedules prior to enactment of such legislation, it is the General Counsel's position that the Union could not waive a right it did not possess. The General Counsel would reach a similar conclusion with respect to the "Zipper Clause" in the collective bargaining agreement which was executed in 1979, some three years prior to the enactment of the legislation allowing the Library of Congress employees to participate for the first time in negotiating for compressed work schedules. The Respondent takes the position that the Union waived its right to bargain on the compressed work week issue. In support of its position Respondent points out, among other things, that the Flexitime agreement executed pursuant to Article XXV of the expired collective bargaining agreement was still in effect and would be substantially modified by the proposed maxiflex plan in violation of the terms of both the expedited bargaining agreement and the collective bargaining agreement. It appears that the Respondent is of the opinion that the zipper clause, which would be retained in any new agreement since it was not selected as one of the six items to be bargained, would prevent the Union from raising the maxiflex plan because it had been presented during the negotiations preceding the execution of the expedited bargaining agreement and had not been one of the six subjects selected for further bargaining. Further, according to Respondent, having opted not to include the compressed work schedule or maxiflex plan as one of its three items for further negotiations, pursuant to the expedited agreement, the Union waived its right for further negotiations thereon until the expiration of the second collective bargaining agreement. Respondent would find the absence of a statutory right providing for compressed work schedule negotiations at the time the election was made to be of no consequence, particularly in view of the fact that the Union President was aware that enactment of the Flexitime and Compressed Work Schedule Act was imminent. Finally, Respondent takes the position, that as a matter of law and public policy, the Union should be required to adhere to the terms of the Expedited Bargaining Agreement. Inasmuch as the Flexitime and Compressed Work Schedules Statute makes it clear, and there is no contention to the contrary, that compressed work schedules are negotiable, resolution of the instant complaint, as recognized by the positions of all parties to the instant dispute, turns on the issue of waiver. With respect to "waiver," the Authority has made it clear that a waiver will be found only if it can be shown that the exclusive representative clearly and unmistakably waived its right to negotiate over the subject in issue. Library of Congress, 9 FLRA No. 51. There is no set formula for determining whether a waiver exists. It may be established by a written agreement, affirmative acts, statements, established practice or a combination of the foregoing. In the instant case, aside from the execution of the expedited bargaining agreement which will be discussed, infra, the record evidence falls short of establishing that the Union prior to April 12, 1982, waived its right to negotiate and/or bargain compressed work schedules. Thus, there was no showing whatsoever that the matter of compressed work schedules was ever discussed with, or presented to Respondent prior to the negotiations for the second collective bargaining contract. Similarly, there was no showing that the matter of compressed work schedules was discussed or presented during negotiations leading up to the execution of the existing supplemental flexitime agreement which was negotiated pursuant to the terms of the original collective bargaining agreement. In such circumstances the so called "zipper" clause in the first collective bargaining agreement would not by its terms prevent the Union from raising the subject of compressed work schedules during the life of such agreements. The foregoing conclusion is predicated on a finding, here made, that compressed work schedules plans and flexitime plans are two different types of alternate work schedules. The former allows employees to vary their starting and quitting times so long as the employees work five days per week and are at work during core hours. The latter allows employees to work less than five days per week as long as they work eighty hours during a two week pay period. To the extent that the alternative work plans are different and the evidence fails to support a waiver by the Union of its right to negotiate compressed work schedules, the Union is not foreclosed from raising the issue during the term of the supplemental flexitime agreement. To the extent that Respondent may be contending that the Union may not initiate mid term bargaining on subjects not included in a collective bargaining agreement, I find for reasons stated in my decision in Internal Revenue Service, Case No. 3-CA-20156, (OALJ-82-92, June 15, 1982), currently before the Authority for review, such contention to be without merit. Accord, see Decision of Judge Oliver in Internal Revenue Service, 3-CA-20489, (OALJ-83-92, May 25, 1983), Library of Congress, 9 FLRA Nos. 51 and 52 (1982). Having concluded that the Union prior to April 12, 1982, did not waive its right to bargain over compressed work schedules and that a Union may unilaterally raise during the term of a collective bargaining agreement subjects not included therein or otherwise waived, the sole issue remaining for resolution is whether the Union, by virtue of its actions in executing the expedited bargaining agreement and failing to select its proposal on alternate workplans as one of its three items for future negotiations, is now precluded from raising same as an additional provision to be included in the pending collective bargaining contract. A review of the record, particularly the cross-examination of Mr. Brown, establishes that it was his understanding that by executing the expedited bargaining agreement the parties were "intentionally limiting themselves to three articles from its proposal their proposals." "Each party could choose three articles from its proposal and laid it on the table to negotiate. No other articles would be negotiated." Mr. Brown further testified with respect to the articles chosen for further negotiations pursuant to the expedited bargaining agreement, that the Union did not choose the proposed article on alternate work schedules and that the union intentionally dropped the article. In view of the foregoing, I find that the union consciously waived its right to bargain over compressed work week schedules until the expiration of the second collective bargaining agreement and that the Respondent did not violate the Statute when it later declined to negotiate on April 5, 1983, the Union's proposed Maxiflex Plan which dealt with compressed work week schedules. In reaching the above conclusion, I am not persuaded, as contended by the General Counsel, that a different finding is in order by virtue of the fact that the Union did not at the time of the execution of the expedited bargaining agreement have the right to bargain over compressed work schedules since the legislation giving the Union the right to bargain over compressed work schedules had not been enacted at the time the expedited bargaining agreement was executed. This is not a case where the subject sought to be bargained over was not contemplated at the time of the waiver, i.e. execution of the expedited bargaining agreement. Rather, the evidence clearly indicates that the Union was clearly aware that legislation on the subject was pending and had fashioned a contractual proposal wherein the Respondent would obligate itself to seek such legislation in the event that its unit employees were not included in any final legislation awarding Federal employees the right to bargain over compressed work schedules. Being aware of the pending legislation, the Union could have insisted that the subject of compressed work schedules be exempted from the expedited bargaining agreement or in the alternative refused to execute the expedited bargaining agreement. Instead the Union executed the expedited bargaining agreement, selected three subjects other than alternate work schedules, and then some twelve months later attempted to bargain, in violation of the terms of the expedited bargaining agreement, a fourth subject, i.e. compressed work schedules. Having executed the expedited bargaining agreement with full knowledge of its ramifications on its pending contract proposals, the Union is bound by its terms. In view of the foregoing findings and conclusions, it is hereby recommended that the Authority adopt the following Order dismissing the Complaint in its entirety. ORDER IT IS HEREBY ORDERED, that the Complaint should be, and hereby is, dismissed in its entirety. BURTON S. STERNBURG Administrative Law Judge Dated: January 6, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The Union argues that it could not have consciously waived its right to negotiate over a maxiflex workweek by virtue of the expedited bargaining agreement, since legislation allowing a maxiflex workweek for unit employees was not enacted until several months later. In agreement with the Judge, the Authority finds that the Union was well aware of the pending legislation, and that its waiver of any rights provided in the pending legislation was conscious, clear and unmistakable. /2/ In view of this conclusion, the Authority finds it necessary to pass upon the Judge's statements as to (1) the Union's right to initiate bargaining during the term of the parties' negotiated agreement, or (2) the meaning of certain language, referred to as a "zipper" clause, contained in the parties' initial contract. However, see Internal Revenue Service, 17 FLRA No. 103 (1985), wherein the Authority found that management has no duty to bargain over union initiated mid-term bargaining proposals. /2/ In view of this conclusion, the Authority finds it unnecessary to pass upon the Judge's statements as to (1) the Union's right to initiate bargaining during the term of the parties' negotiated agreement, or (2) the meaning of certain language, referred to as a "zipper" clause, contained in the parties' initial contract. However, see Internal Revenue Service, 17 FLRA No. 103 (1985), wherein the Authority found that management has no duty to bargain over union initiated mid-term bargaining proposals. /3/ The collective bargaining contract was to be effective for eighteen months. However, in the absence of notice from either party within the 18 month period of a desire to terminate, the collective bargaining contract was to be automatically renewed for one additional year. Accordingly, in the absence of notice to terminate by either party the contract would have expired in March of 1982. The contract further provided that in the event renegotiation of the collective bargaining contract had not been completed prior to the "termination date of the Agreement," the current contract would continue in full force and effect "for 30 days and for such other period of time that the parties mutually agree on." /4/ According to the record, which consists solely of a number of exhibits and the testimony of Mr. Jeffrey Brown, Union President from October 1981 until July of 1983, the collective bargaining contract was not extended to March 20, 1982. Accordingly, the Flexitime Agreement remains in effect since negotiations for a second agreement, which will be discussed in detail, infra, have not been completed. /5/ "Maxiflex" is another word used to describe a "Compressed Work Schedule" which allows employees to work more or less than eight hours per day as long as they work 80 hours in a bi-weekly period. /6/ The Maxiflex Plan called for a Compressed Work Schedule and provided, among other things, that: This Agreement is subject to the Collective Bargaining Agreement between the parties. Where this Agreement specifically modifies any contractual provision(s), this Agreement shall govern. This Agreement supercedes any published Library of Congress Regulations which are inconsistent with the terms of this Agreement.