Small Business Administration, Washington, D.C. and Salt Lake City District Office and American Federation of Government Employees, Local 1099, AFL-CIO (Authority decision, August 10, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Small Business Administration ended a compressed workweek experiment at its Salt Lake City office after notifying AFGE Local 1099 of the proposed change. The union responded that the notice did not comply with the labor agreement and that ending the program was unauthorized. The Authority found that the agency had given timely notice, but the union had not requested bargaining or submitted proposals. It concluded the agency did not unlawfully refuse to bargain or terminate the schedule and dismissed the complaint. The outcome is vacated under the direct Authority case rule because there was no Judge's decision and the complaint was dismissed.

Decision snapshot

• Authority: Bargaining obligations under 5 U.S.C. § 7116(a)(1) and (5).
• Outcome: Complaint dismissed; no unfair labor practice found.
• Key point: Timely notice gave the union a bargaining opportunity, but its response did not request bargaining.

Full text (FLRA public release)

[ v15 p522 ]

15:0522(109)CA

The decision of the Authority follows:

15 FLRA No. 109

SMALL BUSINESS ADMINISTRATION
WASHINGTON, D.C., AND SMALL
BUSINESS ADMINISTRATION, SALT
LAKE CITY DISTRICT OFFICE
SALT LAKE CITY, UTAH
Respondents

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1099, AFL-CIO
Charging Party

Case No. 7-CA-20211

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the parties' stipulation of facts, accompanying exhibits, and contentions of the parties, the Authority finds:

On January 29, 1981, the American Federation of Government Employees, Local 1099, AFL-CIO (the Union) was certified as the exclusive representative of all non-professional General Schedule employees of the Small Business Administration, Salt Lake City District Office, Salt Lake City, Utah (Respondent Activity). The certification added the employees to an already existing nationwide unit of certain employees of the Small Business Administration, Washington, D.C. (Respondent Agency), for which nationwide unit the American Federation of Government Employees (AFGE) had been certified as the exclusive representative on August 22, 1978. At all times material herein, AFGE and the Respondent Agency have been parties to a collective bargaining agreement dated August 13, 1980, covering the nationwide unit as well as the unit employees of the Respondent Activity.

From September 1979 until March 7, 1982, the employees in the Salt Lake City facility worked under a compressed work week program whereby in each two-week pay period they worked one 8 hour workday and eight 9 hour workdays. On February 5, 1982, the Activity, at the direction of the Agency's Region VIII, notified the Union by letter that "the work schedule experiment will be terminated." The letter advised the Union that notice was being given pursuant to "Article Four of the Master Agreement." The letter specifically limited bargaining to "any request for negotiations on impact of the proposed change," and it further requested that the Union waive the contractual 15-day period to make a bargaining demand, in order that termination of the program could be implemented on February 21, 1982, as in the other offices in Region VIII.

On February 16, 1982, the Union replied to the Activity's letter asserting that notice had not been given in accordance with the collective bargaining agreement, /1/ denying the request to waive the 15-day period to make a bargaining demand; and stating that the Activity's proposal to negotiate the termination of the compressed work schedule experiment was not valid and " . . . termination of the program is not authorized at this time."

By letter dated February 22, 1982, the Activity replied to the Union's letter of February 16, 1982, declaring that "the decision to terminate the experiment is a statutory right of the Agency and therefore, not subject to negotiation or your authorization." The letter concluded by stating that since the Union had failed to request bargaining within the specified time, notification was then being given that the experiment would be terminated at the Activity on March 7, 1982. The experiment was terminated on March 7, 1982.

The complaint alleges that Respondents violated section 7116(a)(1) and (5) of the Statute /2/ by refusing to bargain over the decision to terminate the compressed work week schedule and by terminating the compressed work week schedule at the Salt Lake City District Office without first bargaining with the Union over the substance and impact and implementation of the change.

The Authority has held the Statute requires that, prior to effectuating a change in established conditions of employment, an agency must give the exclusive representative notice and an opportunity to negotiate. See Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981); Internal Revenue Service (District, Region and National Office Unit and Service Center Unit), 10 FLRA 326 (1982). Further, in Social Security Administration, 11 FLRA No. 76 (1983), application for enforcement docketed, No. 84-1015 (D.C. Cir. Jan. 13, 1984), the Authority held that the decision to conduct or terminate flexible or compressed work schedule experiments is a proper subject for good faith bargaining.

The General Counsel contends that the Union's letter of February 16, 1982, constituted a valid request to bargain. However, in the Authority's view that letter falls short of the Union's exercise of its statutory right to request bargaining under the circumstances. /3/ In this regard, although the Union was in fact afforded timely notice of the proposed termination of the compressed work week program in the Respondent Activity's facility, the Union elected not to request bargaining or to submit proposals. The Union instead insisted that management's notice was not in accordance with the parties' Master Agreement. Accordingly, the Authority concludes that the Respondent did not unlawfully refuse to bargain in good faith or unlawfully terminate the experiment, and therefore did not violate section 7116(a)(1) and (5) of the Statute, as alleged.

ORDER

IT IS ORDERED that the complaint in Case No. 7-CA-20211 be, and it hereby is, dismissed.

Issued, Washington, D.C., August 10, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The complaint does not allege that the Union was not given proper or adequate notice of the change and the record does not support such a finding.

/2/ Section 7116(a)(1) and (5) provides:

Sec. 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency--

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

. . . .

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.)

/3/ See Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA 307, 320 (1982); United States Department of Defense, Department of the Army, Headquarters, Fort Sam Houston, Texas, 8 FLRA 623, 624 (1982).