[ v45 p899 ]
The decision of the Authority follows:
45 FLRA No. 85
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally terminating a compressed work schedule (CWS) program for bargaining unit employees when negotiations over its extension were at impasse and the Union had requested the assistance of a mediator from the Federal Mediation and Conciliation Service (FMCS). For the following reasons, we find that the Respondent's actions did not violate the Statute, as alleged in the complaint.
The Union is the exclusive representative of a unit of nonprofessional employees at Respondent's facilities. On August 30, 1990, the Respondent and the Union agreed to implement a CWS test program for unit employees for 6 months. The parties also agreed to a 90-day extension period and that if the CWS program was to be extended beyond 90 days, the Respondent was obligated to notify the Union and bargain over the extension. On April 24, 1991 the Respondent and the Union agreed to extend the CWS test program for an additional month.1/ On June 17, the parties agreed to extend the CWS test program through the close of business of June 17.
On June 19, the Respondent presented the Union with a written proposal for a 6-month extension of the CWS test program. On June 20, the Union proposed a 4-month extension of the CWS program. The Respondent told the Union that a 6-month test was necessary to obtain meaningful test results and that if an agreement was not reached on a 6-month extension, it would substitute nonunit employees in the test. The Union stated that it would not agree to a 6-month extension. The negotiation session ended with the parties at impasse. The Respondent told the Union that, based on the Union's rejection of the Respondent's proposal, it would commence a 6-month extension of the CWS test program on July 1, without unit employees.
On June 21, the Respondent informed the Union that the Respondent's position was unchanged and asked the Union to reconsider its position. The Respondent reminded the Union that it would proceed with a 6-month extension of the CWS test program on July 1, without the participation of unit employees, if the Union did not agree to a 6-month extension. On June 24, the Respondent again contacted the Union to determine if the Union was willing to agree to a 6-month extension. The Union informed the Respondent that its position had not changed. On June 28, the Respondent hand-delivered a letter to the Union stating that effective July 1, it would proceed with a 6-month extension of the CWS test program, without the participation of unit employees. Although the record indicates that the Union steadfastly maintained that it would not agree to a 6-month extension of the CWS test program, nothing in the record indicates that the Union ever requested the Agency to delay commencement of the 6-month extension of the CWS test program without unit employees.
On July 1, without having previously indicated or otherwise communicated its desire to continue negotiations to resolve the impasse concerning the parties' differences as to the extension of the CWS test program, the Union hand-delivered a letter to the Respondent stating that a mediator from the FMCS had agreed to meet with the parties on July 3, to attempt to resolve the parties' differences concerning the extension of the CWS test program. On July 3, the Respondent told the Union that there was no need to meet with a mediator or discuss the matter further since the Union had refused to agree to a 6-month extension. The Respondent also informed the mediator that, on July 1, the CWS test program had been terminated for unit employees and extended, for 6 months, for nonunit employees only.
III. Positions of the Parties
A. General Counsel
The General Counsel contends that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute by refusing to meet with an FMCS mediator and the Union to bargain over the Union's CWS proposal. Citing American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872 (1986) (Lowry AFB), the General Counsel argues that the CWS involved in this case is fully negotiable and if parties reach impasse on CWS proposals, they are required to submit their dispute to the Federal Services Impasses Panel (the Panel). Citing Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, Region II, 35 FLRA 940 (1990) (SSA, Region II), the General Counsel argues that an agency violates section 7116(a)(1), (5), and (6) of the Statute when it changes conditions of employment of unit employees when negotiations are at impasse and the union invokes the services of the Panel.
The General Counsel argues that, as the parties had reached an impasse in their negotiations over the extension of the CWS program, the Respondent was required to: (1) afford the Union sufficient time to seek the assistance of the Panel prior to implementation; and (2) maintain the status quo "to the greatest extent possible consistent with the functioning of the Activity, pending resolution of the impasse." G.C.'s Brief at 9. The General Counsel maintains that the Union timely requested the assistance of the FMCS and that the Respondent's selection of July 1, as the date of implementation of the CWS test was not dictated by "any exigency . . . ." Id. at 12.
As a remedy, the General Counsel requests that the Respondent be ordered to: (1) restore the status quo; (2) meet with a mediator from the FMCS and the Union; and (3) complete bargaining on the extension of the CWS program.
The Respondent contends that it did not violate section 7116(a)(1), (5), and (6) of the Statute. First, the Respondent argues that the "totality of conduct" demonstrates that management negotiated in good faith and intended to reach an agreement with the Union on the extension of the CWS test program. Respondent's Brief at 3.
Second, the Respondent contends that it did not violate the Statute because "no change was implemented." Id. at 2. According to the Respondent, when the first CWS test period expired on June 19, by agreement of the parties, "bargaining unit employees no longer had the option of participating in CWS." Id. Therefore, the Respondent maintains that "no change in conditions of employment occurred since management maintained the status quo by initiating the CWS test . . . without bargaining unit members." Id.
Third, the Respondent contends that it was not obligated to meet with the FMCS mediator because the Union's proposal for a 4-month extension was not negotiable. The Respondent maintains that the Union's proposal addressed an aspect of the CWS program that was a permissive subject of bargaining under section 7106(b)(1) of the Statute. According to the Respondent, "[t]he design and duration of the test were the methods of performing the tasked work." Id. at 4.
IV. Analysis and Conclusions
A. Work Schedules Act
The Federal Employees Flexible and Compressed Work Schedules Act of 1982 (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.2/ 5 U.S.C. § 6130(a)(1). Alternative work schedules for bargaining unit employees are fully negotiable within the limits set by the Work Schedules Act. See U.S. Department of the Air Force, 416 CSG, Griffiss Air Force Base, Rome, New York, 38 FLRA 1136, 1147 (1990). See also AFSCME, Local 2027 and Action, 28 FLRA 621, 623 (1987) (AFSCME). The duty to bargain over the establishment and termination of AWS programs includes the duty to bargain on matters pertaining to the implementation and administration of those schedules. See National Association of Government Employees, Local R12-167 and Office of the Adjutant General, State of California, 27 FLRA 349, 352-54 (1987) (State of California), reversed as to other matters sub nom. California National Guard and DoD v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988). Because AWS for bargaining unit employees are fully negotiable within the limits set forth in the Work Schedules Act, there are no issues pertaining to the negotiability of those schedules which the Authority will consider under section 7117 of the Statute, insofar as those issues concern an alleged conflict with the Statute. See State of California at 351-52. See also Air Force Accounting and Finance Center, Denver, Colorado, 42 FLRA 1196, 1205 (1991); National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, 32 FLRA 879, 881-83 (1988).
Based on Lowry AFB and State of California, we reject the Respondent's contention that the Union's proposal was nonnegotiable under section 7106(b)(1) of the Statute. We also conclude that the substance of the decision to terminate a CWS program is negotiable. See Defense Logistics Agency, Defense Industrial Plant Equipment Center, Memphis, Tennessee, 44 FLRA 599 (1992).
B. Section 7116(a)(1), (5) and (6)
Where parties are bargaining over a proposed change in conditions of employment, an agency is generally obligated to maintain the status quo pending the completion of the bargaining, including impasse procedures. See generally, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395-97 (1990). See also United States Immigration and Naturalization Service, U.S. Border Patrol, San Diego Sector, San Diego, California, 43 FLRA 642, 652-53 (1991), petition for review filed sub nom. United States Immigration and Naturalization Service, United States Border Patrol v. FLRA, No. 92-70119 (9th Cir. Feb. 13, 1992); U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 258, 262-63 (1991). Further, once a party timely invokes the services of the Panel, the status quo must be maintained to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate. See, for example, SSA, Region II, 35 FLRA at 948-51; U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435, 436-38 (1986). Failure to maintain the status quo, to the extent consistent with the necessary functioning of an agency, while an impasse is pending before the Panel violates section 7116(a)(1), (5) and (6) of the Statute. See, for example, U.S. Department of Justice, Immigration and Naturalization Service, Washington D.C., 44 FLRA 1065, 1072-73 (1992), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 92-4652 (5th Cir. June 24, 1992); Department of the Air Force, Scott Air Force Base, Illinois, 42 FLRA 266, 271-73 (1991). The Work Schedules Act requires that negotiation impasses concerning the establishment and termination of CWS programs be presented to the Panel in accordance with 5 U.S.C. § 6131(c)(2) and part 2472 of the Panel's Rules and Regulations. Lowry AFB, 23 FLRA at 873-74. See also AFSCME, 28 FLRA at 623.
In this case, when the parties reached impasse over the Respondent's proposal to extend the CWS test program for 6 months, the Union did not request the services of the Panel. Rather, the Union sought assistance from the FMCS. However, unlike the impasse resolution procedures set forth in section 7119 of the Statute and 5 C.F.R. part 2471, neither the Work Schedules Act nor the Panel's regulations implementing the Act, 5 C.F.R. part 2472, require affected parties to seek mediation assistance or mention the FMCS. As such, we find that the General Counsel has not demonstrated that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute by failing to cooperate in impasse proceedings or by failing to maintain the status quo during the pendency of such proceedings.
Further, the General Counsel has not established that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing a change in conditions of employment. In this regard, the stipulated record reflects that the parties agreed to extend the CWS program only until the close of business June 17. Moreover, the General Counsel does not dispute the Respondent's contention that the CWS test program expired on June 19, and has presented no evidence to the contrary. The record further reflects that following the termination of the program, the parties did not agree to an extension of the CWS program for unit employees and that the CWS program the Respondent implemented on July 1, related to nonunit employees only. In these circumstances, we conclude that the General Counsel has failed to establish that the Respondent unilaterally changed a condition of employment in violation of the Statute. See, for example, U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Memphis, Tennessee, 42 FLRA 712 (1991); U.S. Environment Protection Agency, 35 FLRA 674 (1990).
Based on the foregoing, we will dismiss the complaint in its entirety.
The complaint in this case is dismissed.
(If blank, the decision does not have footnotes.)
1/ Hereafter, all dates are in 1991.
2/ Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. §§ 3401, 6101 and note, 6106, 6120-6133), which was made permanent in Pub. L. No. 99-196, 99 Stat. 1350 (1986).