42:1196(84)CA - - Air Force Accounting and Finance Center, Denver, CO and AFGE Local 2040 - - 1991 FLRAdec CA - - v42 p1196
[ v42 p1196 ]
The decision of the Authority follows:
42 FLRA No. 84
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 unilaterally changing the working conditions of unit employees by implementing a new duty roster for some of its employees without bargaining with the Union concerning the change or its impact and implementation. The Judge found that AFAFC was not required to bargain concerning its decision to implement the new duty roster and dismissed that portion of the complaint. However, the Judge found that AFAFC violated section 7116(a)(1) and (5) of the Statute by refusing to bargain with the Union concerning the impact and implementation of the change.
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. We agree with the Judge's conclusions that AFAFC violated the Statute by refusing to bargain with the Union concerning the impact and implementation of the change but did not violate the Statute by refusing to bargain concerning the substance of the change. We adopt the Judge's findings, conclusions and recommended Order.
In 1986, the parties reached a bargaining impasse concerning the range of hours to be covered under the flexitime program of the alternate work schedules (AWS) program that was already in effect at AFAFC. On the recommendation of the Federal Service Impasses Panel, the parties submitted the dispute to interest arbitration. The arbitrator accepted AFAFC's proposal on the matter in dispute and ordered the parties to adopt the following schedule:
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
"Instead of incorporating the flexitime arrangement into a formal collective bargaining agreement, the parties proceeded by having AFAFC issue a revised version of its 'Regulation 11-7,' which spelled out the basic policies and procedures for the AWS program[.]" Judge's Decision at 2. As revised, AFAFCR 11-7 provided in pertinent part (id. at 2-3):
a. . . . 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 . . . .
. . . .
c. Supervisors will permit employees to schedule working hours to best meet the employees' individual needs to the extent permitted by working situations . . . . The supervisor makes the final determination.
Under the AWS program, employees could elect an 8-hour flexitime schedule or a compressed work schedule consisting of a "5-4-9" plan. Each pay period, employees participating in the "5-4-9" plan work 9 hours for 8 days, 8 hours for 1 day, and are off for 1 day during the pay period.
On January 3, 1989, AFAFC Commander Metcalf issued a memorandum instituting expanded office hours throughout AFAFC. The memorandum stated that, effective January 1, 1989, all offices would be open from 6:30 a.m. to 5:30 p.m. and required all offices to have personnel available to conduct business during those hours. Commander Metcalf directed that new work schedules be organized to meet the 6:30 a.m. to 5:30 p.m. coverage. The expanded hours coincided with the hours covered by the existing AWS program. AFAFC did not notify the Union about Commander Metcalf's memorandum.
On January 17, 1989, AFAFC's Director of the Directorate of Comptroller Support (Directorate) issued a memorandum to Directorate employees concerning expanded office coverage. A duty roster attached to the memorandum established a rotating schedule, effective January 16, 1989, for Directorate employees. The Union was not given advance notice by the Directorate concerning the duty roster and the Union complained to AFAFC. The Respondent informed the Union that it was willing to discuss the impact and implementation of the change in hours, but not the change itself.
On January 19, 1989, the Directorate suspended implementation of the January 16 duty roster "until the Union and [the Directorate] work out an acceptable position." Id. at 4. Unaware that the duty roster had been suspended, the Union filed an unfair labor practice charge on January 19, 1989, alleging that AFAFC had implemented a unilateral change of hours. "[R]ight after" the charge was filed, AFAFC again offered to bargain over the impact and implementation of the change. Id.
The Union and the Respondent had no further contact before the Union learned from employees that the January 16 roster had been suspended and that the Respondent had issued a new roster on January 27, 1989, covering the period from February 6, 1989, to July 21, 1989. The Union requested that AFAFC negotiate on the change in work schedules for unit employees in the Directorate and delay implementation until negotiations were completed. AFAFC agreed to negotiate on impact and implementation only and would not delay implementation.
The January 27 duty roster went into effect on February 6, 1989. The Union filed an amended unfair labor practice charge alleging the February 6 implementation date as the unilateral action.(1) The duty roster designated employees to cover either the early or the late end of the day for week-long periods throughout the year on a rotating basis. The January 27 roster affected unit employees to the extent that the employees' hours and days assigned during the weeks that the employees were listed on the roster differed from their existing hours and days. Most employees of the Directorate were assigned to come in at 6:30 a.m. for two 1-week periods and assigned to stay until 5:30 p.m. for another two 1-week periods during the first 9 months covered by the January 27 rosters. However, at the time of the hearing before the Judge, there were fewer employees in the Directorate and a new rotation began every 9 weeks instead of 12 weeks. Therefore, "the projected impact" of the January 27 roster on employees was increased so that employees would have to cover 3 weeks of early arrival and 3 weeks of late departure every year. Id. at 5. Employees in the Directorate were permitted to exchange early or late duty with other employees as long as the office was covered.
III. Administrative Law Judge's Decision
Before the Judge, the General Counsel contended that the decision to change the duty rosters was negotiable because the change in scheduling "constituted a change in a condition of employment--the hours during which the employees are expected to remain at the office--and that [the change] had a substantial impact on the affected employees." Id. at 6.
The Respondent contended before the Judge that there was "no change in the negotiated AWS provisions but only in the employees' tours of duty . . . " and, therefore, there was "no duty to engage in 'substance' bargaining[.]" Id. The Respondent also asserted that it had no duty to bargain on the impact and implementation of the change because the change was no more than de minimis. Moreover, according to the Respondent, the Union waived its right to engage in impact and implementation bargaining.
The Judge stated that the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Work Schedules Act) authorizes the establishment of both types of AWS with which this case is concerned, that is, flexible and compressed schedules.(2) Citing National Association of Government Employees, Local R12-167 and Office of the Adjutant General, State of California, 27 FLRA 349, 352, 354 (1987) (State of California), reversed as to other matters sub nom. Illinois National Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988), the Judge found that the Work Schedules Act requires collective bargaining over the establishment and termination of AWS programs as well as their implementation and administration. However, relying on National Federation of Federal Employees, Local 642 and Bureau of Land Management, Lakeview District Office, Lakeview, Oregon, 27 FLRA 862, 867-68 (1987) (Bureau of Land Management), affirmed sub nom. Bureau of Land Management v. FLRA, 864 F.2d 89 (9th Cir. 1988), the Judge found that under the Work Schedules Act, 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."(3) Id. at 7.
The Judge found that AFAFC's change in employees' duty hours constituted an adjustment in arrival and departure times authorized under 5 U.S.C. §6122(a). The Judge noted that although the change in the duty roster limited employees' rights to elect their hours under the AWS program, "it did not impinge on the program itself except to the extent that the Authority has recognized as the agency's right." Id. (citing Bureau of Land Management and Bureau of Land Management v. FLRA, 864 F.2d at 93). The Judge found that nothing in AFAFCR 11-7 "gave employees a vested right in the arrival and departure times they selected." Id. In this regard, the Judge found that "[a] dispute over the validity of a supervisor's application of these provisions is presumably subject to the parties' negotiated grievance procedure, but is not, short of a repudiation of the agreement, the stuff that unfair labor practices are made of." Id. at 7-8. Therefore, the Judge concluded that "AFAFC did not change the AWS program in a manner that required negotiations over the decision." Id. at 8. Accordingly, the Judge recommended dismissal of the allegations of the complaint concerning AFAFC's refusal to bargain over the substance of the decision to require all offices to have personnel available to conduct business between 6:30 a.m. and 5:30 p.m.
The Judge further found that, apart from the Work Schedules Act, "changes in employees' hours of work are not subject to mandatory [substance] bargaining," but "are subject to mandatory [impact and implementation] bargaining." Id. The Judge found that, on its face, "a change of scheduling that required employees to adjust their normal working days for approximately (at first) one week out of twelve, and involving an adjustment on the early side of up to two hours and on the late side of up to 2 [and one-half] hours, is more than de minimis." Id. at 9-10. The Judge noted that there was no evidence that employees were previously restricted in their choices so that they were required to arrive before 8:30 a.m. or to leave after 5:00 p.m.
The Judge also found that where the obligation to negotiate over impact and implementation exists, the obligation must be fulfilled before the change is implemented. The Judge found that "[t]he only recognized exception occurs in situations where there is an overriding need to implement the change before the completion of negotiations--that is--that expedited implementation is necessary for the efficient functioning of the agency." Id. at 11. The Judge concluded that there was no showing of such an overriding need in this case. He based his decision on the fact that when AFAFC suspended the roster on January 19, 1989, AFAFC "acknowledged that the Directorate could keep the phones manned by using employees who 'have signed in and are working their regular shifts,' while the Union and AFAFC 'work out an acceptable position.'" Id.
The Judge rejected the Respondent's claim that "the Union's inaction constituted a waiver of its right to bargain." Id. Specifically, the Judge found that: (1) AFAFC's first offer to discuss impact and implementation with the Union came on January 17, 1989, one day after the effective date of the rotating duty roster; (2) AFAFC's second offer came after the Union filed the original unfair labor practice charge and after a revised duty roster was issued on January 27, 1989; and (3) AFAFC's third offer came several months after the effectuation of the revised duty roster.
As to the Respondent's first offer to bargain, the Judge found that offer to have been "belated." Id. The Judge found that the offer came after the roster attached to the January 17 memo had gone into effect and that "[t]he Union had no opportunity to do anything to preserve its right to bargain except to protest the unilateral nature of the change, as it did." Id. at 11-12.
As to the second offer to bargain, the Judge noted that the AFAFC issued the revised duty roster on January 27, 1989, to become effective on February 6, 1989, "manifesting a final decision to change the work schedules of specific employees." Id. at 11. The Judge found that "AFAFC was obligated to negotiate before January 27, and could not rely on the period between that date and the 'effective' date of February 6 to satisfy its obligation." Id. The Judge also noted that "[e]ven if 'implementation' did not occur until February 6, the January 27 announcement of February 6 as the effective date signalled an abrogation of the duty to refrain from implementation until negotiations were completed." Id. at n.6.
As to the third offer, the Judge found that this offer was "grossly belated" and that the offer "could not have sired a waiver." Id. at 13.
The Judge noted that the January 27 memo had been issued before the Union had any notice of it. The Judge also noted that AFAFC's second offer to bargain came after the Union, on January 31, made a "written demand to bargain and to delay implementation." Id. at 12. The Judge concluded that the Union's subsequent request to bargain "makes more improbable the notion that the Union waived its right." Id. The Judge found that "a post-implementation offer to bargain does not obligate a union to accept the offer in order to avoid waiving its bargaining rights." Id. Based on his findings, the Judge concluded that AFAFC failed to meet its obligation to negotiate over impact and implementation before the duty rosters were implemented or effectuated.
The Judge recommended a status quo ante remedy. The Judge's recommended order also directed AFAFC to make whole employees who suffered any monetary loss as a result of the implementation of the new duty roster.
IV. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel excepts to the Judge's finding of fact that instead of incorporating the flexitime arrangement into a formal collective bargaining agreement, the parties agreed to have AFAFC revise its Regulation 11-7 to reflect the policies and procedures for the AWS program. The General Counsel asserts that the change in the regulation was a unilateral update based on the interest arbitration award, not a bilateral agreement. The General Counsel also excepts to the Judge's finding that the expanded hours of office coverage coincided with the hours covered by the existing AWS program. The General Counsel argues that the expanded work hours coincide only with the outer perimeter of duty hours and not core times and flexible lunch time.
The General Counsel further excepts to several of the Judge's conclusions. First, the General Counsel excepts to the Judge's conclusion that the Authority has recognized an agency's 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. The General Counsel asserts that the issue in this case does not concern hours of duty, but concerns alternative work schedules. Therefore, the General Counsel argues that the decision to change the duty roster is fully negotiable.
The General Counsel also excepts to the Judge's interpretation of Bureau of Land Management. The General Counsel argues that, once an employee chooses an agency-approved flexible or compressed schedule, an agency cannot subsequently change the employee's hours of work under the schedule without bargaining. The General Counsel contends that "once an AWS program is an established condition of employment and the Union acts upon its right to negotiate and does not waive that right, any and all changes in that AWS program must, upon the request of the Union, be fully negotiated[.]" General Counsel's Exceptions at 6.
B. Respondent's Exceptions
The Respondent argues that under section 7106(b)(1) of the Statute "an agency may elect, but is not required to negotiate on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty." Respondent's Exceptions at 4. The Respondent asserts that although it "had the option to negotiate the tour of duty of the Comptroller Support's personnel[,]" it chose not to negotiate. Id. The Respondent also argues that it had no duty to bargain over the impact and implementation of the change in the duty roster because "[a]ny impact upon the employees was no more than de minimis." Id. at 4-5. In support of this argument, the Respondent asserts that the change was de minimis because "the duty roster . . . involved only 21 employees" and the "employees were free to switch off with each other . . . ." Id. at 6.
The Respondent excepts to the Judge's conclusion that the Union did not waive its right to bargain. The Respondent argues that it offered the Union "the opportunity to bargain impact and implementation three times, but was refused each time." Id. at 9. The Respondent argues that because no bargaining occurred and no proposals were received by management, "a clear and unmistakable waiver to bargain occurred." Id. at 9-10.
V. Analysis and Conclusions
For the following reasons, we find, contrary to the General Counsel's exceptions, that the Judge properly found that the Agency had no duty to bargain over the substance of the change affecting employee arrival and departure times. We also find, contrary to the Respondent's assertions, that the Respondent had a duty to bargain over the impact and implementation of the change because the impact on employees was more than de minimis and the Union had not clearly and unmistakably waived its right to bargain.
Alternate work schedules are negotiated under the Work Schedules Act. The Work Schedules Act provides that an exclusive representative may negotiate with an agency for the establishment of flexible and compressed work schedules for bargaining unit employees. 5 U.S.C. §6130(a)(1). AWS for bargaining unit employees are fully negotiable within the limits set by the Work Schedules Act. American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872 (1986) (Lowry AFB). See also National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, 32 FLRA 879, 881-83 (1988) (Internal Revenue Service).
In State of California, 27 FLRA at 352, 354, the Authority concluded that the duty to bargain over the establishment and termination of AWS includes the duty to bargain on matters pertaining to the implementation and administration of those schedules as well. However, nothing in State of California changed the requirement of Lowry AFB that bargaining on AWS must be consistent with the Work Schedules Act itself or with other laws superseding the Act.
Section 6122(a) of the Work Schedules Act provides that employees' elections of arrival and departure times under a flexible schedule are "subject to limitations generally prescribed to ensure that the duties and requirements of the employee's position are fulfilled." We find that the AFAFC Commander's memorandum directing that all offices be open from 6:30 a.m. until 5:30 p.m. and that offices provide coverage during those hours is the type of general limitation contemplated by section 6122(a). We conclude, therefore, in agreement with the Judge, that management had the right under section 6122(a) to require some adjustment in employee arrival and departure times to ensure office coverage during the hours that the office was open. Consequently, we also agree with the Judge that because management was privileged by section 6122(a) to require the adjustment of arrival and departure times, the Agency had no duty to bargain on the substance of that requirement. See, for example, Internal Revenue Service; National Federation of Federal Employees, Local 642 and Bureau of Land Management, Lakeview District Office, Lakeview, Oregon, 27 FLRA 862, 867-868 (1987), affirmed sub nom. Bureau of Land Management v. FLRA, 864 F.2d 89 (9th Cir. 1988).
Accordingly, we adopt the Judge's conclusion that the portion of the complaint alleging a violation by the Respondent of section 7116(a)(1) and (5) of the Statute by refusing to bargain on the substance of the decision to require the adjustment of employee arrival and departure times should be dismissed.
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.
In addition, we adopt the Judge's findings and conclusions that AFAFC violated section 7116(a)(1) and (5) of the Statute by failing to notify the Union and refusing to bargain concerning the impact and implementation of its decision to require the adjustment of arrival and departure times, including any arrangements for rotating coverage among employees. The change of scheduling required employees to adjust their arrival times for up to 2 hours and their departure times for up to 2 and one-half hours during the weeks they were scheduled to come in early or stay late. We agree with the Judge, for the reasons stated by him, that this change was more than de minimis, noting particularly that employees were not previously restricted in their choices of arrival or departure times. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986).
We also agree with the Judge's conclusion, for the reasons stated by him, that the Union did not clearly and unmistakably waive its statutory right to bargain over the impact and implementation of the requirement that all offices provide personnel to conduct business between the hours of 6:30 a.m. and 5:30 p.m. As we noted above, the Judge found that the Respondent failed to notify the Union prior to issuing the January 17 and January 27 memoranda and attached rosters. The Union only learned about the memoranda and duty rosters when employees informed it that they had received the rosters. The Judge found that all of the Respondent's offers to negotiate came after the duty rosters had been implemented.
In agreement with the Judge, we find that, coupled with the Respondent's failure to provide the Union with advance notice of the issuance of the duty rosters, the belated offers to bargain concerning the impact and implementation of the new duty rosters after they were implemented did not satisfy the Respondent's obligation to bargain under the Statute. See U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 705 (1991). The Union was under no obligation to respond to the Respondent's belated offers to bargain and did not waive its right to bargain by failing to accept those offers. See United States Information Agency, Voice of America, 33 FLRA 549, 562-63 (1988), remanded as to other matters sub nom. United States Information Agency, Voice of America v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990), decision and order on remand, 37 FLRA 849 (1990).
Moreover, we note that the record indicates, and the Judge found, that the Union, upon learning that the January 27 memorandum and duty roster had been issued, requested that AFAFC bargain on the revised work schedules and that it delay implementation until negotiations were completed. Proposals that require an agency to maintain the status quo pending the completion of the bargaining process are negotiable as procedures under section 7106(b)(2) of the Statute. See, for example, National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1203 (1991).
Implementation of a change in conditions of employment without completing bargaining over such a proposal constitutes a violation of section 7116(a)(1) and (5) of the Statute. See U.S. Department of the Air Force, 832d Combat Support Group, Luke Air Force Base, Arizona, 36 FLRA 289 (1990). AFAFC implemented the duty roster without bargaining on the Union's proposal that implementation be delayed pending the completion of bargaining. Accordingly, AFAFC committed an unfair labor practice. Compare United States Air Force, Lowry Air Force Base, Denver, Colorado, 22 FLRA 171 (1986) (no violation occurred where, although an implementation date had been announced, the respondent subsequently delayed implementation of the new policy for unit employees until after, and based on, the completion of negotiations).
We further agree with the Judge's conclusions, for the reasons stated by him, that restoration of the status quo ante, including a make-whole remedy, is appropriate in this case.
We conclude that the Respondent refused to bargain concerning the impact and implementation in the Directorate of the requirement that employees adjust their arrival and departure times. The Respondent's refusal to bargain with the Union about the impact and implementation in the Directorate of that decision constitutes a violation of section 7116(a)(1) and (5) of the Statute. The allegation of the complaint that the Respondent violated the Statute by refusing to bargain over the substance of its decision will be dismissed.
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, Denver, Colorado shall:
1. Cease and desist from:
(a) Unilaterally changing employees' arrival and departure times under the existing alternate work schedules without notifying the Amer