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

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

and

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
LOCAL 1442
(Charging Party)

BN-CA-01-0670

_____

DECISION AND ORDER

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 Dec