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60 FLRA No. 90
U. S. Dept. of the Army, Letterkenny Army Depot, Chambersburg, Pennsylvania and NFFE, Local 1442 Case No. BN-CA-01-0670 (58 FLRA 685 (2003)) (Decided November 30, 2004)
This case came before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit (the court). The court directed the Authority to take action consistent with its decision. Consistent with the court's opinion, the Authority set aside the Authority's earlier decision in 58 FLRA 685 and found that the Respondent violated the Statute as alleged. To remedy the violation, the Authority ordered the Respondent to bargain with the Charging Party regarding closure of the SAS program with a retroactive effective date to mitigate the loss of child-care services to those whose child-care arrangements were terminated. The Authority further ordered that the Respondent post a notice provided by the Authority acknowledging its violation of the Statute.
It is long established that the duty to bargain under the Statute requires an agency to meet its obligation to negotiate prior to making changes in established conditions of employment. However, the Authority has recognized that a union may waive its right to bargain over a proposed change in conditions of employment, either explicitly through agreement or implicitly through inaction. In this regard, an agency may implement changes in conditions of employment when a union fails to request bargaining within a reasonable period of time after being notified of proposed changes, fails to submit bargaining proposals within a contractual or other agreed upon time limit, fails to bargain, or fails to timely invoke the services of the Federal Services Impasses Panel after the parties have reached impasse.
Here, the court found that the Respondent was obligated to bargain over the 2001 closure of the SAS program. There was no dispute that the Respondent began, but unilaterally withdrew from negotiations over the closure of the SAS program and closed the SAS program without completing bargaining.