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

[ v58 p685 ]

58 FLRA No. 166



LOCAL 1442
(Charging Party)




July 14, 2003


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC). The Respondent filed an opposition to the GC's exceptions.

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

      The facts are set forth fully in the Judge's decision and are only briefly summarized here. As part of the Base Realignment and Closure process, the Respondent was directed by higher authority to transfer certain buildings to a local government. One of the buildings to be transferred was where the SAS was located. Thus, in April 1997 the Respondent notified the Union that it intended to close the SAS program between September 1998 and March 1999. Rather than submit bargaining proposals within the contractually-established ten day period for doing so, the Union (and three other unions also affected by this action) requested to discuss the proposed closure through the Labor-Management Partnership Committee (LMPC). Through the LMPC, the parties engaged in discussions. While it is clear that the Respondent attempted to maintain the SAS in as viable a form as it possibly could for as long as possible, it is also clear that the Respondent remained under direction of higher authority to dispose of the building.

      In June 1999 the Union filed an unfair labor practice charge against the Respondent, alleging that the SAS 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 Union also withdrew from the LMPC in July 1999. The unfair labor practice charge, however, was dismissed in August 1999 based upon a finding that the Union should have submitted a timely bargaining demand when it was notified in April 1997 of the SAS closure decision. The Union received notice from the Respondent in January 2001 that the SAS program would be closed in August 2001. Although the Respondent and the Union then negotiated over the matter, the Respondent stated it had erroneously engaged in the negotiations and withdrew from those negotiations. In withdrawing from 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 had to be in response to the Respondent's April 1997 notification to the Union. The SAS program was closed in August 2001.

      The Judge found that the parties' agreement required the Union to request bargaining within ten calendar days of receiving notice of the SAS closure. Because the Union chose not to submit a demand to bargain in 1997, when it first received notice of the proposed closure, the Judge concluded that the Union waived its right to bargain. In so finding, the Judge expressly noted that neither the delay in closure nor the exploration of alternatives to closure could reasonably be construed as a recission of the decision to terminate the SAS program, especially as the Respondent was under order from higher authority to effect the closure. The Judge also concluded that there was nothing in the Union's January 2001 proposals that could not also have submitted in April 1997, when it first learned of the SAS closure. Accordingly, he dismissed the complaint and we agree. If delaying an adverse event for employees gave rise to new bargaining obligations by virtue of the passage of time, an employer would be deterred from attempting to reduce the impact of an adverse event through delayed implementation. The benefit provided [ v58 p686 ] employees through delay in the inevitable closure of an SAS should not result in a new bargaining obligation for the Agency. Otherwise, agencies will implement as soon as the right to bargain is satisfied or waived even when delay of the event is possible and beneficial to employees.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order. [n2] 

II.     Order

      The complaint is dismissed.

Dissenting Opinion of Member Carol Waller Pope:

      For the following reasons, I would find that the Respondent violated the Statute as alleged.

      I agree with the Judge's finding that the Union waived its right to bargain over the proposed 1998-1999 SAS closure. In this connection, where a collective bargaining agreement obligates a union to request bargaining within a specific period of time, the union waives its right to bargain if it does not request bargaining within that period. See, e.g., Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1536-38 (1996). Because the Union did not respond to the notice of the proposed 1998-1999 closure within ten calendar days as required by the parties' agreement, the Union waived its right to bargain over the proposed 1998-99 SAS closure.

      However, I do not agree -- with the Judge or the majority -- that the Union's failure to timely request bargaining over the proposed 1998-99 SAS closure necessitates dismissal of the complaint in this case. In this regard, the Respondent did not close the SAS during the September 1998/March 1999 period as planned. Instead, on February 23, 1999, the Respondent stated that the SAS program would remain open through August 26, 1999. See Judge's Decision at 4; Jt. Ex. 14 at 1 (minutes of LMPC meeting). The Respondent also indicated "the possibility [of] . . . the extension of SAS beyond the summer." Jt. Ex. 16 (March 1, 1999 e-mail). In fact, the SAS program remained open for nearly two years after the Respondent made those statements. Then, in January 2001 --nearly four years after the Respondent initially informed the Union that it intended to close the SAS program and nearly two years after the parties' last LMPC discussion of it -- the Respondent notified the Union that it would close the SAS program in August 2001.

      The Judge found, and the majority agrees, that, in 1997, the Union waived its right to bargain over the 2001 SAS closure. I believe this is in error. In particular, I believe it is error to conclude that the ultimate change in 2001 in this case was encompassed by the Respondent's original notice given in 1997.

      Under the Judge's reasoning, as adopted by the majority, management could propose a change over which a union does not request bargaining, decline to implement it for many years (or even decades), and then implement it without being required to bargain. This is neither realistic nor consistent with the purposes and policies of the Statute. When a change is not implemented for years after its originally proposed date, a [ v58 p687 ] union reasonably may assume that the change will not occur at all. In this case, at an LMPC meeting on February 23, 1999, the Respondent postponed the SAS program closure until August 26, 1999. See Judge's Decision at 4; Jt. Ex. 14 at 1 (minutes of LMPC meeting). The Respondent also informed the Union that the SAS program might remain open beyond that time. See Jt. Ex. 16 (March 1, 1999 e-mail). These were the Respondent's last communications with the Union regarding this matter until January 2001, when it notified the Union that the SAS program would close on August 31, 2001. Thus, the Respondent's February and March 1999 communications left the Union with the impression that the SAS program would remain open through at least August 1999 and possibly beyond that date. In fact, the SAS program remained open far longer than that; the program remained open through the remainder of 1999 and all of 2000.

      Nothing in the record suggests that the Union should have interpreted the initial notification in 1997 as encompassing a closure of the SAS program in any circumstances other than that specified in the notification itself. As such, when that time period expired and the Respondent indicated that the SAS program would remain in effect without specifying any future closure date, the Union could reasonably expect that the program would continue indefinitely unless new notice of closure were provided.

      In addition, circumstances change as time passes. In this regard, a union may knowingly decline to bargain over a change at the time of notice. If the change is not implemented for an extended period of time, however, and the implementation date is significantly beyond that stated in the notice, then factors contributing to the union's decision to waive bargaining may be altered such that the union's response to the original notice cannot reasonably be found to be a response to the ultimate notice. As an example, changes may occur that alter the union's ability or incentives to bargain.

      Such a change occurred during the time period involved here. Specifically, government-wide regulations were implemented to allow Federal agencies to use appropriated funds for certain childcare tuition assistance. See GC Ex. 1(e), Attachment (Agency Use of Appropriated Funds for Child Care Costs for Lower Income Employees, 5 C.F.R. part 792 (2000)). Following the January 2001 notice, the Union made a specific proposal that the Respondent use its appropriated funds for childcare expenses. See Jt. Exh. 23. There is no basis in the Judge's decision or the record on which to conclude that the Union's failure to timely request bargaining in 1997 precludes bargaining -- pursuant to a separate notice over 4 years later -- over a proposal that was offered as a result of a change in the law made subsequent thereto.

      In these circumstances, I would find that the Judge erred by concluding that, in 1997, the Union waived its right to bargain over the 2001 SAS closure by failing to timely request bargaining. As the Respondent asserts no other defense with respect to its unilateral implementation of the SAS closure, I would find also that the Respondent violated § 7116(a)(1) and (5) of the Statute by unilaterally implementing the closure. With regard to a remedy, the GC requests that, in addition to a notice and posting, the Authority issue a retroactive bargaining order. As the Respondent does not object to this request, I would direct it, along with the standard notice and posting.

File 1: Authority's Decision in 58 FLRA No. 166 and Opinion of Member Pope
File 2: ALJ's Decision

Footnote # 1 for 58 FLRA No. 166 - Authority's Decision

   Member Pope's dissenting opinion is set forth at the end of this decision.

Footnote # 2 for 58 FLRA No. 166 - Authority's Decision

   We reject as unsupported the GC's claim that the Respondent is "estopped" from asserting that the Union waived its right to bargain by failing to timely request bargaining. Exceptions at 13. We also reject the GC's claim that the Judge erred by failing to address whether the Respondent's actions exhibited bad faith. The GC does not assert, and the complaint does not allege, that the Respondent's actions constitute an independent violation of the Statute.