COURT DECISIONS

58 FLRA No. 166

BARGAINING WAIVER DEPENDS ON THE TIMING OF THE CHANGE

National Federation of Federal Employees, FD-1, IAMAW, Local 1442 v. Federal Labor Relations Authority, No. 03-1277 (D.C. Cir. May 28, 2004).

Holding

The D. C. Circuit reversed FLRA's decision in Letterkenny Army Depot, 58 FLRA No. 166, in which FLRA held that the union had waived its right to bargain over the August 2001 closure of an employee child-care center by failing to request bargaining within 10 days of receiving its first, April 1997, notice of the closure with projected closure dates of September 1998 - March 1999. The revised timing information given in the second, January 2001, notice gave the union a new opportunity to request bargaining, given that the timing of the change deviated significantly from that given in the first notice. "Although the union waived its right to bargain over the "September 1998/March 1999" closure that the handwritten note [the first notice] announced, that waiver did not forfeit the union's right to bargain over a closure that occurred several years after the proposed time frame contained in the note."

Summary

In April 1997 the depot's director of personnel and community activities sent a handwritten note to the union president announcing that the depot intended to close, among other things, its SAS (School Age Service) program between September 1998 and March 1999. The union did not request bargaining.

The SAS remained open long after this projected closure period and in January 2001 the depot notified the union that the SAS program would be closed in August 2001. When the union requested bargaining over this change within the 10 days permitted by the agreement, the depot entered into negotiations with it and at its first session reached agreement on 4 of the union's 5 proposals. The fifth proposal, requiring that the agency use its appropriated funds for childcare expenses, was unresolved even after the parties, at their second session, were assisted by an FMCS mediator.

However, the next scheduled session was canceled when the depot took the position that it had no duty to bargain regarding the closure of the SAS, claiming that the union had waived its right to negotiate when it didn't request bargaining within 10 days of the 1997 handwritten note. A ULP followed and both the ALJ and FLRA (Member Pope dissenting) agreed with the depot. In agreeing with the ALJ and dismissing the complaint, the majority said the following:

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 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.

In her dissent, Member Pope took the position that when a change isn't implemented for years after its originally proposed date, a union reasonably may assume that the change will not occur at all. Moreover, circumstances change with the passage of time and the factors that may have prompted the union not to request bargaining after receiving the initial notice may have since changed. Indeed, such a change occurred here when Governmentwide regulations were implemented that allowed Federal agencies to use appropriated funds for certain childcare tuition assistance.

The union sought court review and the court essentially agreed with Member Pope. The court was unable to reconcile FLRA's reasoning in this case with its own precedent in which it held, among other things, that notices of changes in conditions of employment that omit the timing of the change are inadequate.

We see no basis for reaching a different result where, as here, the timing of a change deviates significantly from what appears in the notice. Either way, the union lacks accurate information about the timing of the change as actually implemented and may therefore be unable to make an informed decision about whether to request bargaining over the change.

Moreover, the Authority's ruling rested on a factual inaccuracy. It had said there wasn't anything in the union's January 2001 proposals that couldn't have been submitted in April 1997. But on April 1997 Congress allowed agencies to use funds appropriated for salaries to lower the cost of employee child care.

[C]ontrary to the Authority's contention, the new law did affect the impact of the SAS closure. Specifically, the law gave the depot a new way to mitigate the loss of child-care services, i.e., offering tuition assistance to employees who moved their children from the closed SAS facility into private child-care programs, and thus provided the union with a reason to request bargaining--a reason it lacked in 1997.

The court concluded that although the union waived its right to bargain over the closure announced in the handwritten note, that waiver did not forfeit its right to bargain over a closure that occurred several years after the initial closure dates.

Comments

It thus appears that the keys to this case are not only the significant delay in implementing the change in conditions of employment, but also the fact that during that delay Congress gave agencies discretion to use funds appropriated for salaries to lower the cost of child care.

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