U. S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut and American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 1661 (Authority decision, February 26, 1999)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority finding an unfair labor practice under 5 U.S.C. § 7116. 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

FCI Danbury changed correctional officers’ shift starting and stopping times while a local labor agreement still set those hours. The Authority held that the prison repudiated the agreement and violated 5 U.S.C. § 7116(a)(1) and (5). It ordered the prison to restore the agreed hours for at least 75 calendar days, the time remaining on the agreement when management announced the change. The hours continue beyond that period unless the prison gives express, effective notice terminating the permissive shift provision. The Authority changed the judge’s remedy because an operations memorandum had not given sufficiently clear notice of termination.

Decision snapshot

• Authority: Unfair labor practices under 5 U.S.C. § 7116(a)(1), (5); permissive bargaining under § 7106(b)(1).
• Outcome: Agreement repudiation sustained; restoration ordered for at least 75 days, with express notice required for later termination.
• Key point: A party must expressly notify its counterpart before ending a permissive agreement term after expiration.

Full text (FLRA public release)

[ v55 p201 ]

55 FLRA No. 37

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS, FCI DANBURY

DANBURY, CONNECTICUT

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, COUNCIL OF PRISON LOCALS

AFL-CIO, LOCAL 1661

(Charging Party/Union)

BN-CA-60527

_____

DECISION AND ORDER

February 26, 1999

______

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]

Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent, and cross-exceptions filed by the General Counsel.

The complaint alleges in relevant part that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing a change in shift starting and stopping times without obtaining the union's consent to change the provision of a negotiated agreement that set those times. The Judge found that the Respondent repudiated the agreement provision, as the agreement was in effect at the time of the unilateral change, but that the Respondent properly terminated the provision upon expiration of the agreement because the provision dealt with a permissive bargaining subject.

Upon consideration of the Judge's decision, the exceptions and cross-exceptions, and the entire record, we find that the Respondent repudiated the agreement provision on shift starting and stopping times, in violation of section 7116(a)(1) and (5) of the Statute. We further hold that the Respondent must reinstate the agreement provision for a period of not less than 75 calendar days (the time remaining in the term of the agreement at the time of the repudiation of the provision at issue), and that Respondent may, after giving valid notice, unilaterally terminate the agreement provision upon expiration of the 75 day reinstatement period. We adopt the Judge's findings, conclusions and recommended order to the extent consistent with this decision.

II. Background

A. The Facts

The facts are fully set forth in the Judge's decision, and are briefly summarized here.

1. The nature of the bargaining relationship and relevant agreement provisions

The American Federation of Government Employees, Council of Prison Locals (AFGE), is the exclusive representative for a nationwide unit of corrections personnel employed by the Federal Bureau of Prisons (FBP). AFGE Local 1661 (or "Union") is the agent of AFGE for representing unit employees at the Danbury, Connecticut Federal Correctional Institution (Danbury FCI).

On September 1, 1992, FBP and AFGE negotiated a nationwide collective bargaining agreement. The duration of the agreement was 3 years, unless notice of intent to renegotiate the agreement was given by a party during a window period prior to expiration of the agreement. If such notice was given, the agreement would automatically continue in effect for another 6 months past its previously established termination date. [n2]

Among other things, the nationwide agreement allowed for the negotiation of local supplemental agreements, so long as the local supplemental did not specifically conflict with a provision of the nationwide agreement. Local agreements on permissive matters, including subjects referenced in section 7106(b)(1) of the Statute, were not allowed. A local supplemental agreement would also be extended if the nationwide agreement was extended based on a notice to renegotiate, as described above.

In March 1993, AFGE Local 1661 and Danbury FCI negotiated a local supplemental agreement. In relevant part, Article 18, section (a) of this local supplemental agreement set the starting and stopping times for employee work shifts at Danbury FCI. More specifi- [ v55 p202 ] ally, for Correctional Services employees, the day shift hours were from 8:00 a.m. to 4:30 p.m., with a half hour off duty for a meal during the shift. The two remaining shifts were to be 8 hours in duration, with employees on those shifts allowed to eat a meal on their posts during the shift. Thus, the evening shift was to run from 4:00 p.m. to 12:00 midnight, and the morning shift was to run from 12:00 midnight to 8:00 a.m.

2. The events giving rise to the alleged violation

As a result of litigation concerning overtime pay arising from shift schedules, FBP management wanted to establish uniform nationwide rules on when shifts would be considered to have begun and ended. To this end, FBP issued an Operations Memorandum to all activities, including Danbury FCI, on November 1, 1995. In this Memorandum, FBP instructed all activities to develop plans to ensure that shifts would be timed to begin and end in such a way that corrections officers would be able to pick up their equipment and be at the actual work site so as to relieve the previous shift in a timely manner. Thus, among other things, shift starting and stopping times would have to overlap in such a way as to ensure incoming employees enough time to pick up their equipment and arrive at their duty post in time to allow outgoing employees to turn in their equipment by the designated end of their shift.

On November 2, 1995, the Warden of Danbury FCI met with the Captain who was in charge of correctional personnel, to discuss implementation of the Operations Memorandum. The Warden instructed the Captain to ensure that AFGE Local 1661 was provided with a copy of the Memorandum, and that Local 1661 have the opportunity to provide advice and suggestions on a program to implement the Memorandum.

The Captain met with the President of AFGE Local 1661 on November 2, 1995. The Captain provided the Union President with a copy of the Operations Memorandum at that time, and mentioned the need for Danbury FCI management and AFGE Local 1661 to work out an implementation plan. [n3] The Union President responded in relevant part that the March 1993 local supplemental agreement resolved the matters covered in the Operations Memorandum at Danbury FCI, until AFGE and FBP negotiated different terms at the national level. The Union President also said that the Union would not assist in formulating a plan to implement the Operations Memorandum because the existing local supplemental agreement governed shift starting and stopping times.

After the November 2, 1995, meeting between the Captain and the Union President, the two had several further meetings. The latter consistently maintained on these occasions that the Union would not participate in formulating a plan to implement new starting and stopping times. The Union President indicated further that if management went ahead with implementation of a new plan for starting and stopping times, the Union would file an unfair labor practice (ULP) charge.

In spite of the Union's warning, the Captain formulated a plan for Danbury FCI to implement the Operations Memorandum. This plan included new starting and stopping times for work shifts that were different than the times set in the March 1993 supplemental local agreement. More particularly, this plan called for the day shift to run from 7:45 a.m. to 4:15 p.m.; the evening shift from 3:45 p.m. to 12:15 a.m.; and left the morning shift unchanged except for Sunday, when it would run from 11:45 p.m. to 8:00 a.m. The plan was posted on December 15, 1995, in the form of a duty roster. A memorandum to all correctional officers from the Captain, explaining the reasons for the new shift starting and stopping times, was issued on December 16, 1995. It stated that the new shift hours would be effective on December 31, 1995. Danbury FCI implemented the new plan as scheduled.

Based on a ULP charge filed by the Union, the General Counsel issued a complaint alleging that Danbury FCI violated section 7116(a)(1) and (5) of the Statute. More specifically, the complaint alleged in relevant part that Danbury FCI implemented the changes in shift starting and stopping times effective on December 31, 1995, without obtaining the Union's agreement to change the local supplemental agreement provision of March 1993 which established those hours.

B. The Judge's Decision

After a hearing, the Judge first rejected Danbury FCI's argument that the portion of the local supplemental agreement dealing with shift starting and stopping times was invalid because it dealt with a permissive bargaining subject within the meaning of section 7106(b)(1) of the Statute. According to Danbury FCI, the national agreement prohibited local agreements on permissive bargaining subjects. The Judge held that, while the national agreement did prohibit local supplemental agreements on permissive subjects, it also allowed local supplementals on any matter not in direct [ v55 p203 ] conflict with substantive provisions of the national agreement. As the national agreement did not contain any provision on shift starting and stopping times, there was no conflict between the national and local agreements, and the local agreement therefore was valid.

The Judge next found that the local supplemental agreement was in effect on December 31, 1995, when the new shift times became effective. The extension of the national agreement effected by the parties at the national level automatically extended the local supplemental agreement of March 1993. Further, Danbury FCI admitted, in its answer to the ULP complaint, that the local supplemental agreement was in effect when the new shift hours were implemented. Accordingly, on finding that the new shift hours implemented by Danbury FCI in December 1995 were materially different than those contained in the local supplemental agreement, the Judge concluded that Danbury FCI repudiated the local agreement in violation of section 7116(a)(1) and (5) of the Statute.

The Judge next found that by its November 1, 1995, Operations Memorandum, FBP, through Danbury FCI, provided the Union notice that it did not intend to be bound by starting and stopping times established in existing agreements past the termination date of those agreements. Thus, the Judge concluded that FBP was free to direct that shift starting and stopping times be changed upon the expiration of the local supplemental agreement. The Judge also noted in this connection, contrary to the General Counsel's argument, that section 2(d) of Executive Order No. 12,871 (E.O. No. 12,871) does not bar FBP from terminating provisions concerning permissive bargaining subjects, like shift starting and stopping times, upon expiration of the agreement. [n4]

The Judge then rejected Danbury FCI's claim that AFGE Local 1661 waived its bargaining rights by failing to request negotiations after learning of Danbury FCI's intention to change shift starting and stopping times. The Judge said in this connection that the Union "properly refused to help [Danbury FCI] violate its local agreements and did not thereby waive its right to negotiate." Judge's Decision at p. 19. Further, the Judge observed, the record did not establish that Danbury FCI in fact gave the Union notice of any specific proposal to change starting and stopping times. The Union was only made aware of general plans to change hours, not any specific proposal to do so prior to implementation of the changes. Accordingly, Danbury FCI's unilateral change in shift starting and stopping times, without providing notice of the change, also violated section 7116(a)(1) and (5) of the Statute.

The Judge proposed a remedial order for the violations that called for Danbury FCI to rescind the change in starting and stopping times, reinstate the prior starting and stopping times established under the March 1993 local supplemental agreement for a period of 3 months, and thereafter change the reinstituted shift hours only after giving AFGE Local 1661 notice and the opportunity to bargain on any changes in the reinstituted shift times. The 3 month period was derived from the fact that the March 1993 local supplemental agreement would have expired approximately 3 months after Danbury FCI implemented the change in hours. [n5]

III. Positions of the Parties

A. Danbury FCI Exceptions

Danbury FCI first argues that changing shift starting and stopping times constitutes the exercise of the management right to assign work under section 7106(a)(2)(B) of the Statute, not section 7106(b)(1), as the Judge held. Danbury FCI then claims that, because the right to assign work was at issue, the local supplemental agreement provision on shift starting and stopping times was void ab initio, and could therefore be voided at any time. As a result, all Danbury FCI had to do to lawfully change shift starting and stopping times was to provide adequate notice and an opportunity for AFGE Local 1661 to bargain on the change. This it says it did, and therefore, no ULP was committed.

B. General Counsel's Opposition and Cross-Exceptions

First, the General Counsel argues that the claim concerning the right to assign work was raised for the first time in Danbury FCI's exceptions, and therefore cannot be considered pursuant to section 2429.5 of the Authority's Regulations. The General Counsel argues that even if Danbury FCI could raise the section 7106(a)(2)(B) issue, the claim is wrong on the merits. Shift starting and stopping times involve section 7106(b)(1) rights, the General Counsel asserts, and therefore, consideration of a section 7106(a) management right is unnecessary. [n6] [ v55 p204 ]

In its cross-exceptions, the General Counsel argues that the Judge erred in finding that FBP, through Danbury FCI, informed the Union that it did not intend to be bound by starting and stopping time provisions in existing agreements past the termination dates of those agreements. Second, the General Counsel argues, even with proper notice of intent to terminate, Danbury FCI could not terminate the shift starting and stopping time provision in the local supplemental agreement because, as a permissive bargaining subject, the President has elected to bargain on the matter in E.O. No. 12,871. Finally, the General Counsel claims, the Authority should clarify Danbury FCI's bargaining obligation under the Judge's remedial order.

C. Danbury FCI's Opposition to the General Counsel's Cross-Exceptions

In opposition to the General Counsel's cross-exceptions, Danbury FCI asserts that the Judge correctly found that the notice of intent to terminate on expiration the local agreement provision on shift hours was adequate. Next, Danbury FCI argues that E.O. No. 12,871 is not, as the General Counsel claims, an enforceable election by the President to bargain on section 7106(b)(1) matters. Danbury FCI also claims that the General Counsel's request to clarify Danbury FCI's bargaining obligation under the Judge's recommended order should be rejected. Further, Danbury FCI argues, even if the shift hours provision of the local supplemental agreement is a permissive bargaining matter, the Judge was correct when he concluded that Danbury FCI could unilaterally change the provision upon expiration of the local agreement.

IV. Analysis and Conclusions

A. There is no valid exception before the Authority concerning the Judge's holding that the local agreement provision establishing shift starting and stopping times concerns a matter referenced in section 7106(b)(1) of the Statute

Danbury FCI argued before the Judge that the shift starting and stopping time provision of the local supplemental agreement concerns a matter identified in section 7106(b)(1) of the Statute. In its exceptions to the Authority, however, Danbury FCI argues that the local supplemental agreement provision does not concern a matter referenced in section 7106(b)(1) of the Statute, but rather pertains to the assignment of work under section 7106(a)(2)(B) of the Statute.

For the reasons that follow, and in agreement with the General Counsel, we find that Danbury FCI cannot argue for the first time to the Authority on exceptions that the provision interferes with a section 7106(a)(2)(B) management right. Section 2429.5 of the Authority's Regulations provides in relevant part that the Authority will not consider "any issue, which was not presented in the proceedings before the . . . Administrative Law Judge." It is clear in the instant case that the agency did not raise the section 7106(a)(2)(B) management right issue before the Judge. Accordingly, pursuant to the regulation, it cannot do so now. U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 38 FLRA 701 (1990), rev'd on other grounds sub nom. U.S. Immigration and Naturalization Service v. FLRA, No. 91-70078 (9th Cir. 1992); Veterans Administration, Washington, D.C., 24 FLRA 9 (1986).

Further, we conclude that section 2429.5 of the Authority's Regulations also precludes Danbury FCI from reversing, in its exceptions, the position it took before the Judge concerning whether the local supplemental agreement provision dealt with a matter referenced in section 7106(b)(1) of the Statute. Precedent governing federal judicial proceedings provides that changes of position on an issue dealt with below are covered under the general rule prohibiting the raising of new issues on appeal. See Southfork Systems, Inc. v. U.S., 141 F.3d 1124, 1131 n.3 (Fed. Cir. 1998); U.S. v. Mulinelli-Navas, 111 F.3d 983, 989 (1st Cir. 1997); Forbush v. J.C. Penney Co., 98 F.3d 817, 822 (5th Cir. 1996). In particular, taking on appeal the opposite side of the same issue is considered to be raising a new issue, and as such is barred. See, e.g., Davidson & Schaff, Inc. v. Liberty National Fire Insurance Co., 69 F.3d 868, 869 (8th Cir. 1995) (the rule against raising new issues on appeal "applies even more forcefully when the appellant took the opposite position" in the court below). We adopt that approach for applying section 2429.5 of our regulations to reversals of position on exceptions, such as here involved. Orderly decision making cannot be aided by allowing a party to urge one result below, and then argue the opposite position on exceptions to the Authority. Accordingly, Danbury FCI's exception to the Judge's recommended holding that the local agreement provision concerns a matter identified in section [ v55 p205 ] 7106(b)(1) of the Statute is not properly before us. Due to the absence of a valid exception on this issue, the Judge's conclusion on this point is adopted without precedential significance pursuant to section 2423.41 of the Authority's Regulations. U.S. Penitentiary, Florence, Colorado, 54 FLRA 30, n* (1998). [n7]

B. The appropriate remedy for the violation

The Judge recommended issuance of a remedial order that called for reinstatement of the shift starting and stopping times established in the local agreement only for a length of time equivalent to the remaining duration of the agreement after its repudiation in December 1995. The Judge also recommended that Danbury FCI be required to maintain those shift times until it gives the Union notice of its intent to terminate that provision, and the opportunity to negotiate on the proposed change.

We agree that reinstatement of the shift starting and stopping times established by the local supplemental agreement is generally an appropriate remedy for the violation found in this case. We recently discussed our remedial policy in Department of Defense Dependents Schools, 54 FLRA 259, 269-70 (1998). We stated there, among other things, that the purpose of ULP remedies is to restore, as far as possible, the status quo that would have obtained if the violation had not been committed. Id. at 269. Reinstatement of the shift hours provision of the local agreement would satisfy this remedial policy. [n8]

We disagree with the Judge, however, that the local agreement provision must be reinstated for a limited duration because the Union received through Danbury FCI proper notice of FBP's intent to unilaterally terminate upon expiration the provisions of local agreements like the one in this case that dealt with shift hours. In agreement with the General Counsel in his cross-exceptions, we conclude that Danbury FCI's repudiation of the local supplemental agreement provision on shift hours, based on the November 1995 FBP Operations Memorandum, does not constitute appropriate notice to the Union of an intent to terminate that provision.

Authority precedent suggests that to be effective, a party must give notice that explicitly contains a statement of intent to terminate a provision dealing with a permissive bargaining subject. [n9] No case has been found where, as here, intent to terminate must be inferred from other actions, such as through the issuance of an operations memorandum by higher authority during the term of the agreement.

Moreover, sound policy reasons support the General Counsel's claim that notice of intent to terminate an agreement provision on a permissive bargaining subject should be express, not implied. A contrary rule encourages confusion in the parties' bargaining relationship. A party should not have to guess whether negotiated agreement terms are in effect or not. Such matters are of critical importance in governing the parties' day-to-day labor-management relationship. [n10]

Accordingly, as the record reflects that there is no valid notice of termination upon expiration of the local supplemental agreement provision on shift hours, we do [ v55 p206 ] not concur in the portion of the Judge's recommended remedial order that limits reinstatement of the shift hours set in that agreement to the time period from repudiation to expiration. [n11] Rather, we conclude that the 75 day period of reinstatement is the minimum amount of time for which those shift hours will be in effect. [n12] If no valid notice of termination of the local supplemental agreement provision on shift hours is provided to the Union by Danbury FCI, then the hours set by that agreement will remain in effect indefinitely. [n13]

Finally, we decline to adopt paragraph 2.(c) of the Judge's recommended order, that requires Danbury FCI to accord the Union notice and an opportunity to bargain before the shift hours as established in the local supplemental agreement can be terminated. A party's right to terminate unilaterally a permissive bargaining subject is not contingent on first satisfying a bargaining obligation as to the substance, impact or implementation of the change. No precedent to the contrary was cited by the Judge or the parties. Moreover, this conclusion is supported by at least two policy reasons. First, since the termination of the permissive subject can only become effective on the expiration of an agreement, the Union would have the opportunity to bargain on the matter as part of the renegotiation of the expired agreement. Second, attaching bargaining obligations to termination of permissive bargaining provisions may discourage parties from engaging in bargaining on permissive subjects. Accordingly, paragraph 2.(c) of the Judge's recommended order will not be adopted.

V. Order

Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut, shall:

1. Cease and desist from:

(a) Repudiating the shift starting and stopping times established in Article 18, section (a), of the local supplemental agreement of March 29, 1993.

(b) In any like or related manner interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Rescind the change of shift starting and stopping times for Correctional Service employees which it implemented on December 15, 1995, by the posting of its quarterly roster.

(b) Upon recission of the change as set forth in subparagraph (a), above, reinstate the shift starting and stopping times for the Correctional Service employees as they had been established previously under Article 18, section (a) of the local supplemental agreement of March 29, 1993, such reinstated shift starting and stopping times to be maintained for a minimum of 75 calendar days, and such time thereafter as appropriate, until effective notice of termination of that provision is served on the American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 1661, by the U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut.

(c) Post at its facilities at FCI Danbury, Danbury, Connecticut, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Warden, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Boston Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply with this Order. [ v55 p207 ]

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify our employees that:

WE WILL NOT repudiate the shift starting and stopping times established in Article 18, section (a), of the local supplemental agreement of March 29, 1993.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL rescind the change of shift starting and stopping times for Correctional Service employees implemented on December 15, 1995, by the posting of the quarterly roster.

WE WILL, upon recission of the change as set forth above, reinstate the shift starting and stopping times for the Correctional Service employees as they had been established previously under Article 18, section (a) of the local supplemental agreement of March 29, 1993, such reinstated shift starting and stopping times to be maintained for a minimum of 75 calendar days, and such time thereafter as appropriate, until effective notice of termination of that provision is served on the American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 1661.

_____

(Agency)

Dated:__ By: ___

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Boston Regional Office, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.

Opinion of Member Wasserman, concurring in part and dissenting in part.

I concur with the foregoing opinion, except on one point. I would grant the General Counsel's cross-exception that contends that the shift provision of the local supplemental agreement must remain in effect indefinitely. For the reasons stated in my dissent in United States Department of Commerce, Patent and Trademark Office, 54 FLRA 360 (1998), petition for review pending, Patent Office Professional Association v. FLRA, No. 98-1377 (D.C. Cir. August 17, 1998), I believe that Executive Order 12871 served as an election to bargain over permissive subjects that was binding on the Respondent. The on-going election to bargain over section 7106(b)(1) matters essentially transforms the nature of the shift provision from the usual permissive topic that is unilaterally terminable at the end of a contract term to one which takes on mandatory effect. As a result, in my view, the Agency is not able to change the working conditions at issue upon termination of the contract without bargaining.

File 1: Authority's Decision in 55 FLRA No.
37

File 2: ALJ's Decision

Footnote # 1 for
55 FLRA No. 37

• Authority's Decision

The separate opinion of Member Wasserman, concurring in part and dissenting in part, appears at the end of this decision.

Footnote # 2 for
55 FLRA No. 37

• Authority's Decision

Notice of renegotiation was given in this case by September 1, 1995. The termination date of the national agreement therefore became March 1, 1996.

Footnote # 3 for
55 FLRA No. 37

• Authority's Decision

The testimony at the hearing on this point was in conflict. As no exception to the Judge's credibility findings on this issue were filed, we set out the credited evidence in this decision.

Footnote # 4 for
55 FLRA No. 37

• Authority's Decision

The express purpose of E.O. No. 12,871 is to facilitate labor-management partnerships in the executive branch. Section 2(d) of the Executive Order directs agencies to negotiate over subjects in section 7106(b)(1) of the Statute.

Footnote # 5 for
55 FLRA No. 37

• Authority's Decision

In fact, the Judge found that implementation of the new shift hours, which constituted the repudiation of the local supplemental agreement provision on shift hours, occurred on December 15, 1995, 75 days prior to the expiration of that agreement on March 1, 1996.

Footnote # 6 for
55 FLRA No. 37

• Authority's Decision

The General Counsel cites in this regard National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (where a proposal addresses matters that come within the terms of both sections 7106(a) and (b)(1), it is subject to negotiation at the election of the agency).

Footnote # 7 for
55 FLRA No. 37

• Authority's Decision

Similarly, there is no exception before the Authority to the Judge's holding concerning repudiation. Accordingly, pursuant to section 2423.41 of the Authority's Regulations, we adopt the Judge's conclusion on this point without precedential significance. However, to the extent that the Judge suggests (Judge's Decision at pp. 19-20) that Danbury FCI committed a separate violation of section 7116(a)(1) and (5) by unilaterally implementing the change in shift starting and stopping times in December 1995, without giving the Union notice of the change and an opportunity to bargain, we decline to adopt this basis for finding a violation. Such a finding implies that the Respondent could lawfully have terminated the provision prior to the expiration of the contract if such notice had been given. Authority precedent is to the contrary. Federal Aviation Administration, Northwest Mountain Region, Seattle and Federal Aviation Administration, Washington, D.C. and Professional Airways Systems Specialists, 14 FLRA 644, 648 (1984) ("where the parties reach agreement on a matter which is outside the required scope of bargaining under the Statute . . . either party may elect not to be bound thereby upon the expiration of that agreement.") (Emphasis added).

Footnote # 8 for
55 FLRA No. 37

• Authority's Decision

We note that Danbury FCI did not allege in its exceptions that the Judge's recommended order of temporary reinstatement of the shift times established in the local supplemental agreement would have any adverse effect on agency operations.

Footnote # 9 for
55 FLRA No. 37

• Authority's Decision

See, e.g., Federal Aviation Administration, 23 FLRA 209, 211 (1986); United States Department of Transportation, Federal Aviation Administration, 20 FLRA 548, 560 (1985), remanded on other grounds sub nom. Professional Airways Systems Specialists v.FLRA, 809 F.2d 855 (D.C. Cir. 1987); United States Department of Transportation, Federal Aviation Administration, Los Angeles, California, 15 FLRA 100, 103 (1984); Federal Aviation Administration, Northwestern Mountain Region, Seattle, Washington
, 14 FLRA 644, 649 (1984). In these cases, the Union notified management, after expiration of a negotiated agreement, that the Union no longer intended to be bound by an agreement provision dealing with a permissive bargaining subject.

Footnote # 10 for
55 FLRA No. 37

• Authority's Decision

Indeed, in analogous areas of the law, such as determining whether a party has waived a statutory right, specificity is demanded. See, e.g., National Labor Relations Board, 46 FLRA 107, 112 (1992) (express statement by union representative that union did not want to be present at certain employee interviews constituted clear and unmistakable waiver of statutory right to be present at such interviews). No lesser standard should be applied if a party is seeking to reclaim the statutory right not to negotiate on a permissive bargaining subject, as in the instant case.

Footnote # 11 for
55 FLRA No. 37

• Authority's Decision

The Authority has held that agreement provisions concerning permissive bargaining subjects do not expire automatically with the agreement. Rather, such a provision terminates "only when a party notifies the other that it will no longer be bound by the provision." Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1537 (1996).

Footnote # 12 for
55 FLRA No. 37

• Authority's Decision

Notwithstanding the fact that the new shift hours established in contradiction to the local agreement did not become effective until December 31, 1995, we conclude that Danbury FCI repudiated the local agreement on December 15, 1995. It was on December 15th that Danbury FCI made it known to the Union and bargaining unit employees that the terms of the local supplemental agreement would no longer be followed, and that new working conditions implemented unilaterally by management would be followed instead. Accordingly, the actual length of time between repudiation and expiration of the local agreement is 75 days. This specific time period, rather than the Judge's 3 month period, is the basis for the reinstatement portion of our remedial order in this case.

Footnote # 13 for
55 FLRA No. 37

• Authority's Decision

We reject The General Counsel's cross-exception, that the shift hours provision of the local supplemental agreement remains in effect indefinitely due to the President's alleged election to bargain on permissive bargaining matters in E.O. No. 12,871. United States Department of Commerce, Patent and Trademark Office, 54 FLRA 360 (1998), petition for review pending, Patent Office Professional Association v. FLRA, No. 98-1377 (D.C. Cir. Aug. 17, 1998).

[ v55 p208 ]

Office of Administrative Law Judges

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FCI DANBURY, DANBURY, CONNECTICUT

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, COUNCIL OF PRISON LOCALS

AFL-CIO, LOCAL 1661

Charging Party

Case No. BN-CA-60527

Amy Whalen Risley, Esquire

For the Respondent

Gerard M. Greene, Esquire

Gail M. Sorokoff, Esquire

For the General Counsel

Before: WILLIAM B. DEVANEY

Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq. [n1] , and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns two questions: (a) Did Respondent change shift starting and stopping times without affording the Union an opportunity to negotiate to the extent required by law; and/or, (b) Did Respondent unilaterally change the shift starting and stopping times fixed by Agreement during the term of an Agreement? For reasons fully set forth hereinafter, I have concluded that Respondent did not give the Union notice and an opportunity to bargain on the change of shift starting and stopping times, and Respondent unilaterally changed the shift starting and stopping times during the term of the Local Agreement.

This case was initiated by a charge, filed on May 6, 1996 (G.C. Exh. 1(a)), which alleged violation of § 16(a)(1) of the Statute; by a First Amended charge, filed on July 31, 1996 (G.C. Exh. 1(c)); which alleged violation of § 16(a)(1) and (5) of the Statute; and by a Second Amended charge, filed on August 16, 1996 (G.C. Exh. 1(e)), which also alleged violation of §§ 16(a)(1) and (5). The Complaint and Notice of Hearing issued August 23, 1996 (G.C. Exh. 1(g)); asserted violation of §§ 16(a)(1) and (5); and set the hearing for October 8, 1996, pursuant to which a hearing was duly held on October 8, 1996, in New York City, New York, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, November 8, 1996, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, on timely motion of Respondent, to which there was no objection, for good cause shown, to November 22, 1996. Respondent and General Counsel each timely mailed an excellent brief, received on, or before November 26, 1996, which have been carefully considered. Upon the basis of the entire record [n2] , including my observation of the witnesses and their demeanor, I make the following findings and conclusions:

Findings

1. The American Federation of Government Employees, Council of Prison Locals, AFL-CIO (hereinafter, "AFGE") is the exclusive representative of a nationwide consolidated unit of employees appropriate for collective bargaining of the United States Department of Justice, Federal Bureau of Prisons (hereinafter, "FBP"). The American Federation of Government Employees, Council of Prison Locals, AFL-CIO, [ v55 p209 ] Local 1661 (hereinafter, "Union"), is an agent of AFGE for the repre-sentation of bargaining unit employees at FBP's Danbury, Connecticut, facility (hereinafter, "Respondent").

2. FBP and AFGE entered into a Master Agreement, effective September 1, 1992, (Res. Exh. 2), ". . . for 3 years from the effective date" (G.C. Exh. 8); however, notice of desire to amend the Master Agreement was given and Respondent states that, ". . . The Agency was and continues to be engaged in negotiating a new Master Agreement at the national level." (Respondent's Brief, p. 6). Article 37 of the Master Agree-ment - "EFFECTIVE DATE AND DURATION" provided, as material, as follows:

"Section a. This Agreement will take effect on September 1, 1992 . . . .

"Section b. This Agreement shall be in full force and effect for 3 years from the effective date, but may be extended in one-year increments thereafter by mutual consent of the parties. Written notice may be given by either party to the other not less than 60 days but not more than 90 days prior to the expiration date that it desires to amend the Agreement. In the event notice is given, the parties shall begin negotiating within 30 days. If negotiations are not completed by the expiration date, the Agreement will be automatically extended until a new Agreement is approved but not to exceed 6 months exclusive of periods during which issues are pending before third parties, with mediators being considered third parties.

"Section c. If neither party desires to renegotiate this Agreement, the parties shall execute new signatures and dates.

"Section d. . . . Local supplemental agreements may be opened by mutual consent." (G.C. Exh. 8, Article 37)(Emphasis supplied).

3. With regard to local negotiations, Article 9 of the Master Agreement provided, as material, as follows:

"ARTICLE 9 - NEGOTIATIONS AT THE LOCAL LEVEL

. . .

"Section b. The Master Agreement is governing and controlling at the local level. The purpose of a local supplemental agreement shall be to cover all those other appropriate matters which are more practicably negotiated at the local level. It is understood, however, that local supplemental agreements shall not:

"1. Deal with permissive matters or those matters negotiated at the national level;

. . .

"Section c. Notwithstanding the provisions of Section b., above, the parties may negotiate locally and include in any supplemental agreement any matter which does not specifically conflict with the provisions of the Master Agreement. . . .

. . .

"Section d. Once an agreement has been reached at the local level, it shall be reduced to writing and signed by the local parties within 15 calendar days from the conclusion of negotiations. A copy of the signed and dated proposed agreement shall be forwarded to the Labor-Management Relations Section by local management and another copy shall be forwarded by the local union to its regional vice president. . . .

"The parties at the national level shall have 30 days, from the date that the proposed agreement was signed, to independently review the agreement and determine if the proposed agreement complies with the provisions of this Agreement and applicable laws and regulations.

". . . At the end of the 30 day review period, the local supplemental agreement will go into effect . . . ." (Res. Exh. 2, Article 9, Section b., c. and d.) (Emphasis supplied).

4. The Union and Respondent on March 29, 1993, entered into a Supplemental Agreement, Article 18 of which provided, as material, as follows:

"ARTICLE 18 - Assignment and Hours of Work

"Section a: The principal day shift, for other than Correctional Services, will be from 7:30 a.m. to 4:00 p.m. The principal shift for Correctional Services shall be from 8:00 a.m. to 4:30 p.m.

"Other than those assigned to the principal shift, employees working a straight eight hours will be allowed to eat on their posts. . . ." (G.C. Exh. 7).

5. Article 9, Section a. of the Master Agreement provides, in relevant part, that: [ v55 p210 ]

"Section a. . . . It is understood that local supplemental agreements expire on the same date as the Master Agreement." (Res. Exh. 2, Article 9, Section a.).

Indeed, the Supplemental Agreement of March 29, 1993, in Article 37, "Effective Date and Duration" states, in relevant part, that:

"This Agreement is coterminous with the Master Agreement . . . ." (G.C. Exh. 7, Article 37).

6. In August, 1992, Respondent and the Union entered into a Memorandum of Understanding which provided, in material part, as follows:

MEMORANDUM OF UNDERSTANDING

"It is agreed . . .

"1. Return to the practice that employees of the Federal Correctional Institution, Danbury shall not be considered to be tardy or late for work if employees are in the key line by the start of their workshift. . . ." (G.C. Exh. 3)(Emphasis supplied).

7. Mr. Dan Joslin, Chief, Paying Position Management, Headquarters FBP, Washington, D.C. (Tr. 37), stated that since 1982 there had been an on-going case against FBP over portal-to-portal issues, ". . . specifically, the compensation employees received at the beginning and during pre-shift activities, and then following post-shift activities." (Tr. 38). Mr. Joslin pointed out that in a prison setting, employees have to go through a security check point to enter or leave; have to pick up items to perform their job, such as keys, radio, body alarm, etc.; move to their duty posts; and the officers being relieved go to the control center and turn in their equipment - keys, radios, etc., and then exit through the security check point (Tr. 39-40). Accordingly, the question was, "At what point did an employee's shift start and end? Was it when they first picked up the equipment, or was it when they arrived at that official duty post within the institution? . . . They could not leave their post for obvious security reasons until proper relief was there and somebody was there to take over the duty, and then that person could leave and proceed once again to the exit point . . . Sometimes they would drop off keys, other equipment for the job, and then . . . move on." (Tr. 39-40).

Mr. Joslin stated that the litigation had not been settled but, ". . . it was becoming apparent that settlement was nearing the end, and what we needed to do as management was, ensure that at a certain point, we could clearly identify where the new policy went into place and there would be no further liabilities, if there were any liabilities at all. So, we had to have a cut-off point, and ending point, as to what, if you will, the old shift starting and stopping times ended and when the new times began." (Tr. 41)

Consequently, Mr. Joslin participated in the formulation of an Operations Memorandum on shift starting and stopping times which was issued November 1, 1995 (Res. Exh. 1; Tr. 38, 42).

8. Warden Charles H. Stewart, Jr. received the Operations Memorandum on November 2, 1995, as noted by his initials on Respondent Exhibit 1 (Tr. 100). Warden Stewart met with Captain Donald P. Reich, who is in direct charge of the correctional staff (Tr. 60), about the Operations Memorandum on November 2, in his, Stewart's office (Tr. 61, 100). Warden Stewart instructed Captain Reich to meet with the Union, to advise them of the Operations Memorandum and to seek their advice and suggestions in creating a plan as required by the Operations Memorandum (Tr. 61, 100). Each credibly testified that Captain Reich asked if he could give the Union a copy of the Operations Memorandum and Warden Stewart said "yes" (Tr. 61, 107). Captain Reich stated that he did not remember whether he made a copy of the Operations Memorandum or whether Mr. Braulio Rodriquez, President of the Union (also referred to in the transcript as "Rod"), made a copy at their meeting; but he stated that, ". . . Rod got a copy, and he said that he was going to get a hold of Mr. Glover in the Regional office, and fax him a copy." (Tr. 62) [Mr. Glover is Regional Vice President of AFGE Council of Prison Locals (Tr. 17)].

Mr. Rodriquez denied that he ever saw, or received, the Operations Memorandum (Tr. 34) and when asked if it were not true that he faxed a copy of the Operations Memorandum to Mr. Glover, he responded,

"A Possible. I don't remember seeing this one.

"Q You don't remember?

"A No.

"Q Or it's possible?

"A I don't remember seeing this one (indicating) [i.e., the copy of the Operations Memorandum shown him by counsel for Respondent, later introduced as Respondent Exhibit 1] (Tr. 34-35).

I do not credit Mr. Rodriquez's denial that he received the Operations Memorandum and, rather, credit Captain Reich's wholly credible testimony that Mr. Rodriquez [ v55 p211 ] did receive a copy. I have not credited Mr. Rodriquez's denial for various reasons, including the following. First, Captain Reich was a convincing witness while Mr. Rodriquez was not. Second, Mr. Rodriquez stated that he told Captain Reich, ". . . we have an MOU, understanding of the key line. . . ." (Tr. 16, 62). His reference to the MOU, which stated,

". . . employees . . . shall not be considered to be tardy or late for work if employees are in the key line by the start of their workshift." (G.C. Exh. 3).

plainly was a retort to the provision of the Operations Memorandum which stated,

"A. AN INSTITUTION EMPLOYEE WHOSE SHIFT STARTS AT 7:30 A.M. MUST BE AT THE CONTROL CENTER AND HAVE RECEIVED HIS/HER EQUIPMENT NO LATER THAT 7:30 A.M. TO BE CONSIDERED
`ON TIME' FOR THE START OF HIS/HER SHIFT. . . ." (Res. Exh. 1) (Emphasis supplied).

That is, a change, whereby an employee had to have his/her equipment by the start of the shift [in the example, 7:30 a.m.], rather than merely being in the key line [for issuance of equipment] by the start of the shift [in the example, 7:30 a.m.], most certainly would have provoked assertion of the MOU and, necessarily, Mr. Rodriquez would have had to have known of the proposed change or his assertion of the MOU (". . . we have an MOU, understanding of the key line . . . ." (Tr. 16) would have been wholly unresponsive to what he said Captain Reich told him, namely, "We're thinking about changing the hours, starting and ending shifts." (Tr. 16). [n3]

Third, Mr. Rodriquez placed this meeting, at which he said Captain Reich told him, "We're thinking about changing the hours, starting and ending shifts." (Tr. 16), as late November (Tr. 16); but the Operations Memorandum directed each Warden to submit a plan no later than November 15, 1995, and Warden Stewart on November 2 had directed Captain Reich to meet with the Union and seek their advice and suggestions on creating a plan (Tr. 100). It is not credible that Captain Reich would have delayed meeting with Mr. Rodriquez until late November. Fourth, as noted, Mr. Rodriquez's testimony con-cerning his having faxed a copy of the Operations Memorandum to Mr. Glover at best was equivocal and Mr. Rodriquez stated that he discussed the matter with Mr. Glover (Tr. 17); but Mr. Glover was not called as a witness.

Not only did I not find Mr. Rodriquez's denial of receipt of a copy of the Operations Memorandum credible, but I did not find any of Mr. Rodriquez's testimony concerning his meetings with Captain Reich credible, either as to the time of such meeting or the discussions that transpired, and do not credit his testimony when in conflict with the testimony of Captain Reich, whom I found to be a wholly credible witness. Again, there are various reasons for finding Mr. Rodriquez's testimony not to be credible, including the reasons set forth above. In addition, Mr. Rodriquez stated Captain Reich told him, "We're thinking about changing the hours, starting and ending shifts" (Tr. 16); that he, Rodriquez, responded, "I don't know, but we have an MOU, understanding of the key line, plus we have it in our Local supplement. It's written down. Anything could be negotiated, but we need to negotiate this" and Captain Reich responded, "He said -- well, at that period he went away." (Tr. 16). It is not credible that Captain Reich did not ask for the Union's input. The Operations Memorandum, "strongly encouraged" inclusion of Union officials in the formulation of a plan (Res. Exh. 1, Par. 3. Implementa-tion) and Warden Stewart directed Captain Reich to meet with the Union and seek their advice and suggestions in creating a plan (Tr. 100), and Captain Reich's testimony, which is consistent with the Operations Memorandum and Warden Stewart's instructions to him, is wholly credible.

After the meeting at which Mr. Rodriquez said Captain Reich just "went away", he said he did not encounter Captain Reich again until, ". . . we bumped into each other in December" (Tr. 16), a meeting at which he was shown General Counsel Exhibit 2 [n4] (Tr. 17-18), which is dated December 15, 1995, and would place the date of the meeting as, presumably, Friday, December 15, and that he told Captain Reich, "We don't have a problem at Danbury" (Tr. 18); ". . . send the memo of understanding, also our Local supplement to the Regional Director to show that we don't have a problem at Danbury." (Tr. 19). Although Mr. Rodriquez "keyed" his testimony to "OPTIONS" in [ v55 p212 ] Paragraph 2 of General Counsel Exhibit 2, I did not find his testimony in this regard convincing. First, this memorandum in Paragraph 1 stated as follows:

"1. Time in key line: If an employee arrives at the key line in a reasonable time to get equipment prior to the shift, but does not receive the equipment/keys by the beginning of the shift, this employee is not to be considered late." (G.C. Exh. 2).

This is not quite the language of the MOU ["shall not be considered to be tardy or late for work if . . . in the key line by the start of their workshift." (G.C. Exh. 3)] but it is very close, so close that one must question whether it would have provoked a comment that, "We don't have a problem at Danbury". On the other hand, the November 1, 1995, Operations Memorandum, which stated that to be considered "on time" the employee must have received his/her equipment by the beginning of the work shift (7:30 a.m. in the example given in Res. Exh. 1), certainly would have provoked a comment.

Second, the January roster (G.C. Exh. 4) was signed on December 15, 1995, and before that time, on December 13 (Tr. 84), Mr. Rodriquez had been made aware of the change in hours (Tr. 125). With knowledge that the hours for the correctional staff were already changed on the January roster, Mr. Rodriquez could not, and would not, have asserted, "We don't have a problem at Danbury", although on November 2, 1995, when he was presented with the Operations Memorandum, he could have so asserted.

The Operations Memorandum, in addition to the reference in Paragraph 2A. to having received his/her equipment ". . . no later than 7:30 a.m. [i.e. the scheduled start of the shift] to be considered on time' . . .", also stated, in Paragraph 1, that, "Shift starting and stopping times for employees who work inside an institution shall be scheduled to begin and end at the point employees pick-up and drop-off equipment (Keys, Radios, Body Alarms, Work Detail Pouches, etc.) at the Control Center"; and in Paragraph 2C, ". . . waiting time in key lines prior to the beginning of a shift is notwork time' . . ." (Res. Exh. 1, Paragraph 1, 2A and 2C). These provisions, absent from General Counsel Exhibit 2, because they specifically applied to portal-to-portal considerations, unquestionably would have provoked Mr. Rodriquez's ". . . concerns . . . that the portal-to-portal issue had not been settled on a national level, and that this was incorrect with what he was hearing in relation to the portal-to-portal issues" (Tr. 62), which I have found hereinafter he stated, all of which points to the fact that he met with Captain Reich on November 2, 1995, and that he received a copy of Respondent Exhibit 1.

Accordingly, I do not, in the main, credit Mr. Rodriquez's testimony but, rather, crediting the testimony of Captain Reich, I find that the first meeting took place on November 2, 1995, after hours, in Captain Reich's office (Tr. 62); that Mr. Rodriquez received a copy of the Operations Memorandum (Tr. 62, 72); and at the outset, ". . . Rod described to me some concern, where he felt that the portal-to-portal issue had not been settled on a national level, and that this was incorrect with what he was hearing in relation to the portal-to-portal issues. He said that our institution had a memo of understanding . . . and that the MOU was in place until such time as there was a final resolution at the national level" (Tr. 62). [n5] Captain Reich, ". . . explained to Rod that we needed together to sit down and put together some kind of plan that met the guidelines [of the Operations Memorandum] . . ." (Tr. 63); that, ". . . Rod said that, with the MOU . . . this didn't apply to us; that it applied to the institutions that were having portal-to-portal problems" (Tr. 63); that Captain Reich said, "We've got to put together a plan" (Tr. 63); that, ". . . Rod said, `The MOU stands,' as far as he was concerned. The MOU was good and that the Union wasn't going to help us put together the plan to meet the ops memo; that we were violating the agreement . . . ." (Tr. 63). I am convinced that Mr. Rodriquez did, as he testified, also make reference to the Local Supplemental Agreement and I so find. That is, he referred both to the MOU, which dealt only with the tardiness issue of time in the key line, and to the Local Agreement, which fixed the principal shift for Correctional Services as 8:00 a.m. to 4:00 p.m. and further provided that employees, "Other than those assigned to the principal shift . . . working a straight eight hours will be allowed to eat on their posts." (G.C. Exh. 7, Art. 18).

As Captain Reich further stated, Mr. Rodriquez, ". . . just basically said that he saw this as management's way of trying to cut off what we saw was, we were going to lose the Court case, and it was a way of cutting off a time clock where they would cut off paying those involved in a portal-to-portal case. This was our way of going around it. There wasn't a settlement at the national level, and this was management's way of stopping the time clock as far as the length of time they had [ v55 p213 ] to pay people who were involved in the Court case." (Tr. 63).

9. When he met with Mr. Rodriquez on November 2, 1995, Captain Reich had no plan (Tr. 64); but thereafter he prepared a suggested schedule which was submitted on November 20, 1995 (Res. Exh. 3, Attachments, Tr. 66-67) and was rejected on November 22, 1995 (Res. Exh. 3). On December 7, 1995, a further proposed roster was submitted which was approved on December 13, 1995 (Tr. 84, 85); the roster committee was informed of the approval and the January, 1996, roster (G.C. Exh. 4) was finalized, signed and posted on December 15, 1995. The Union was not informed of, nor furnished copies of, the various schedules proposed by Respondent (Tr. 84, 85); however, after November 2, 1995, Captain Reich spoke to Mr. Rodriquez a couple of times, ". . . in, I'd say, a general conversation . . ." and each time, "Rod was adamant and he said that do what we had to do, that if we went by this, that they would just file and they weren't participating and putting together the guidelines for this." (Tr. 64).

10. Mr. Rodriquez testified that he spoke to Warden Stewart about the proposed change of hours (Tr. 22); but Warden Stewart testified that neither Mr. Rodriquez nor any other representative of the Union ever approached him regarding the issue of the change of starting and stopping times (Tr. 107, 112-113, 129-130). I credit Warden Stewart's testimony and conclude that Mr. Rodriquez did not speak to Warden Stewart about the proposed change of hours.

Mr. Rodriquez also testified that he spoke to the Assistant Warden, Ms. Hogsden, and associated it with the December 15, 1995, memorandum (G.C. Exh. 2). As Assistant Warden Hogsden did not testify, Mr. Rodriquez's testimony, being unrefuted, is credited; nevertheless, since he had been told of the change of hours on December 13 and the January roster, which he stated he saw when it was posted (Tr. 124), had been posted on December 15, 1995 (Tr. 90), at the time he said he talked to Assistant Warden Hogsden, Respondent had, in fact, changed the hours of work. Mr. Rodriquez testified as follows:

"A I went up to Ms. Hogsden, and I stated to her, I understand that the Captain wants to change the working hours.' I told her,He can't do that; we have to negotiate it. It's a negotiating item. We have an MOU in place in (sic) our Local supplement.'

"She stated to me, Well, Rod, in January they're thinking about they're going to start January 1st.' I said,Well, January is only two weeks from now. We can't negotiate something in two weeks.'

"Then I said, `Well, no problem. If I see that you don't want to negotiate, I have to put a ULP,' and I walked out of her office . . . ." (Tr. 21-22).

11. The memorandum of December 15, 1995 (G.C. Exh. 2) specifically references a meeting between AFGE and FBP, i.e., at the national level, on December 11, 1995, . . . to discuss the Union's concerns of Operations Memorandum 214-95 (Institu-tion shift starting and stopping times). The parameters listed below are to be followed . . ." (G.C. Exh. 2). Paragraph 3 of the memorandum provided, in part, as follows:

"3. Union participation at the local and regional level in formulating these plans is key to assure a quick and smooth implementation." (G.C. Exh. 2, Par. 3).

12. The Union never told Captain Reich that they wished to negotiate the change in starting and stopping times (Tr. 65, 86). Captain Reich reported to Warden Stewart, ". . . that the Union is refusing to negotiate with us on the portal-to-portal issues." (Tr. 107) and Warden Stewart testified that, ". . . there were no negotiations at all because of the absolute refusal on their part to discuss those matters with Administration." (Tr. 133). The changed hours, as set forth in General Counsel Exhibit 4, became effective as scheduled.

CONCLUSIONS

1. LOCAL SUPPLEMENT DID NOT VIOLATE THE MASTER AGREEMENT

Contrary to Respondent's assertion (Respondent's Brief, p. 8), the Local Supplement Agreement of March 29, 1993 (G.C. Exh. 7), was not violative of the Master Agreement and was a valid and lawful agreement. The Master Agreement does, initially, in Section b.1., provide that local agreements shall not:

"1. deal with permissive matters or those matters negotiated at the national level; . . . ." (Res. Exh. 2, Article 9, Section b.1.).

Further, tours of duty, i.e. hours of work, are permissive subjects of bargaining within the meaning of § 6(b)(1) of the Statute. National Association of Government Employees, Local R12-33, 40 FLRA 479, 484-486 (1991); however, the Master Agreement in Section c. [ v55 p214 ] makes the following exception from the prohibition of Section b. as follows:

"Section c. Notwithstanding the provisions of Section b., above, the parties may negotiate locally and include in any supplemental agreement any matter which does not specifically conflict with the provisions of the Master Agreement. . . ." (Res. Exh. 2, Article 9, Section c.).

Although the complete Master Agreement was not introduced as an exhibit, Respondent conceded that the Master Agreement does not address hours of work (Tr. 44) and, necessarily the Local Supplemental Agreement (G.C. Exh. 7), which, inter alia, fixed the principal shift for Correctional Services as 8:00 a.m. to 4:30 p.m., did not conflict with any provision of the Master Agreement which provided for hours of work; nevertheless, Respondent asserts that because Section b. prohibits local bargaining on permissive matters the Local Supplemental Agreement, because it deals with a permissive matter, does specifically conflict with Section b. of the Master Agreement and, therefore, is void. I do not agree.

As Respondent asserts Article 9 of the Master Agreement as a defense, the meaning of Article 9 must be determined. Internal Revenue Service, Washington, D.C., 47 FLRA 1091, 1103 (1993). Respondent presented no evidence or testimony in support of its interpretation of Article 9 except Article 9 (Res. Exh. 2). Plainly, Article 9, Section b.1. prohibits local agreements dealing with "permissive matters or those matters negotiated at the national level". It is equally plain that Article 9, Section c. includes all of Section b. and, "Notwithstanding the provisions of Section b.", permits negotiation locally of, "any matter which does not specifically conflict with the provisions of the Master Agreement. . . ." (Article 9, Section c.). Respondent's construction, presumably, although not spelled out, that if, for example, the Master Agreement deals with a permissive bargaining matter, such as hours of work, Section c. would permit local negotiation of that same matter, if there was no specific conflict with the provisions of Master Agreement; but if, as here, the National Agreement does not deal with hours of work, it may not locally negotiate hours of work because that is a permissive matter and has not been negotiated at the national level, is illogical and wholly ignores the language of Sections b., c. and d. of Article 9. First, as noted, Section b.1. joins permissive matters and matters negotiated at the national level in the prohibition of local agreements. Second, as also noted, Section c., notwithstanding the prohibition of Section b.1., permits local negotiation of any matter which does not specifically conflict with provisions of the Master Agreement. Clearly, Section c. literally provides that any permissive matter or any matter negotiated at the national level may be locally negotiated if there is no specific conflict with provisions of the Master Agreement. Nothing in Section c. makes any reference to "permissive matters"; but, rather states that notwithstanding Section b., the parties may negotiate locally . . . any matter which does not specifically conflict with provisions of the Master Agreement"; the remainder of Section c. simply refers to service of intent to negotiate; substantive negotiations; and states that "Any matter . . . presented [at the national level] to . . . [the Authority or FSIP] may not be negotiated at the local level until such time as decisions are rendered and/or the parties at the national level have resolved the dispute." Again, no qualification, or mention, of "permissive" as distinguished from mandatory. Third, Section d. refers, simply, to "agreement . . . at the local level. . . ."; and provides that, ". . . Disputes as to whether a matter is improper for inclusion in a supplemental agreement shall be resolved as follows: . . . . [arbitration; negotiability dispute; etc.]. Despite provision in the Master Agreement for resolution of any dispute as to whether a matter is properly included in a local agreement, there was no dispute and, of course, no resort to the contractually mandated provisions. Fourth, Section d. also provides, "Once an agreement has been reached at the local level, it shall be reduced to writing and signed by the local parties within 15 calendar days from the conclusion of negotiations. A copy of the signed and dated proposed agreement shall be forwarded to the Labor-Management Relations Section by local management and another copy shall be forwarded by the local union to its regional vice president. . . . The parties at the national level shall have 30 days, from the date that the proposed agreement was signed, to independently review the agreement and determine if the proposed agreement complies with the provision of this Agreement and applicable laws and regulations. . . . At the end of the 30 day review period, the local supplemental agreement will go into effect, except for those provisions which have been found by either party to be in conflict with this Agreement . . . ." (Res. Exh. 2, Article 9, Section d.). As noted above, there was no dispute as to whether a matter was improper for inclusion in the local agreement and the Local Supplemental Agreement became effective on, or about, March 29, 1993, and was in full force and effect on December 31, 1995 (G.C. Exhs. 1(g), Par. 16, 1(h), Par. 16). Respondent is now estopped to deny that the Local Supplemental Agreement does not comply with the Master Agreement. Fifth, if, contrary to my conclusion, it were determined that Section c. did not authorize local negotiation of permissive matters, this would mean only that [ v55 p215 ] local authorities could not, under the Master Agreement, exercise FBP's (i.e., agency's) discretion as to whether it wished to bargain on a permissive matter; nevertheless, the local parties could recommend a contract provision. Stated, otherwise, § 6(b)(1) of the Statute simply provides that "(b) Nothing in this section shall preclude . . . negotiating - `(1) at the election of the agency. . . .'" (5 U.S.C. § 7106(b)(1)). Indeed, to prevent unilateral local exercise of "agency's" (here FBP's) § 6(b)(1) option not to negotiate any particular permissive matter, Section d. specifically provided that the local signed and dated agreement is only a proposed agreement, subject to determination by FBP (and AFGE) of compliance with the Master Agreement. By permitting the proposed agreement to become effective, FBP, as a matter of law, thereby elected, within the meaning of § 6(b)(1) of the Statute and Article 9 of the Master Agreement, to bargain, through its local agent, the hours of work for FCI Danbury and, accordingly, the Local Supplemental Agreement of March 29, 1993, was a lawful and valid agreement.

2. The Local Supplemental Agreement had not expired when Respondent repudiated the Agreement.

The Master Agreement was effective September 1, 1992, for a period of three years (G.C. Exh. 8, Article 37, Sections a. and b.); but where, as here, notice has been given to amend the Agreement, Section b. further provided that,

". . . If negotiations are not completed by the expiration date, the Agreement will be automatically extended until a new Agreement is approved but not to exceed 6 months exclusive of periods during which issues are pending before third parties, with mediators being considered third parties." (id., Section b.)(Emphasis supplied).

Accordingly, the Master Agreement was automatically extended, by its terms, to at least March 1, 1996, and, because, ". . . local supplemental agreements expire on the same date as the Master Agreement" (Res. Exh. 2, Article 9, Section a.), the Local Supplemental Agreement, which itself also provided, "This Agreement is coterminous with the Master Agree-ment . . .", likewise, was automatically extended to at least March 1, 1996. Neither party has referred to the status [n6] of the Memorandum of Understanding. Even though designated, "Memorandum of Understanding", it constitutes a local supplemental agreement and, therefore, pursuant to Article 9, Section a., of the Master Agreement (Res. Exh. 2), the Memorandum of Understanding expires on the same date as the Master Agreement notwithstanding the provision of Paragraph 3 that, "Both parties (management & local) agree that this will remain as status quo until settled by the current court proceedings at the national level." (G.C. Exh. 3).

Indeed, Respondent by its Answer admitted that the Local Supplemental Agreement was in full force and effect on December 31, 1995 (G.C. Exh. 1(g) and (h), Par. 16). During the term of an agreement, an agency is obligated to observe its terms, U.S. Department of The Navy, Philadelphia Naval Shipyard, 39 FLRA 590 (1991), and if, as here, it repudiates the agreement, it violates §§ 16(a)(1) and (5) of the Statute. Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211 (1991).

Respondent knowingly implemented the January schedule on December 15, 1995, when it posted the roster (Tr. 123). The Union had asserted both the Local Supplemental Agreement and the Memorandum of Understanding as bars to any change of hours or change concerning time in the key line and told Respondent it was violating the agreement (Tr. 63). Nevertheless, Respondent on December 15, 1995, by posting the January roster, changed the hours of work; and on December 16, 1995, Respondent in a memorandum to "All Correctional Officers" (G.C. Exh. 6), which President Rodriquez denied receiving but conceded he was shown another memorandum, also dated December 16, 1995 (G.C. Exh. 2), which also dealt with shift starting and stopping times, informed all correctional officers, inter alia, of the new, and changed, shifts.

The Supplemental Local Agreement provided that the principal day shift for Correctional Services was 8:00 a.m. to 4:30 p.m. and, except those assigned to the [ v55 p216 ] principal shift, Correctional Services would work a straight eight hours. (G.C. Exhs. 5 and 7). The January schedule (G.C. Exh. 4), implemented December 15, 1995, changed the principal day shift to 7:45 a.m. - 4:15 p.m.; changed the hours of duty of the evening shift from eight hours to eight and one-half hours and changed the hours from 4:00 p.m. - 12:00 (midnight) to 3:45 p.m. to 12:15 a.m.; left the midnight (morning) shift unchanged except for Sunday when the hours were changed to 11:45 p.m. to 8:00 a.m. and extended the shift by 15 minutes. These were major permanent changes that affected all correctional officers assigned the morning (midnight), day and evening shifts; changed hours of work; added thirty minutes to the duty time of the evening shift; and added 15 minutes to the duty time of the midnight (morning) shift on Sunday. The hours of work provision of Article 18 of the Supplemental Local Agreement was a major part of the agreement; dealt with a matter of paramount concern of employees which had not been addressed by the Master Agreement; its abrogation by Respondent was a clear and patent breach of the heart of the Local Supplemental Agreement; and was, within the meaning of Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 52 FLRA 225, 230-232 (1996), a repudiation of the Local Supplemental Agreement, in violation of §§ 16(a)(1) and (5) of the Statute.

3. FBP gave notice of intent to change and to control local starting and stopping times.

As I have found, President Rodriquez was given a copy of FBP's Operations Memorandum (Res. Exh. 1) on November 2, 1995, and AFGE had notice of the Operations Memorandum as it met with FBP on December 11, 1995, "To discuss the Union's concerns . . ." (G.C. Exh. 2). Respondent is quite correct that the Authority has held that,

". . . if the parties reach agreement on a permissive subject, `either party may elect not to be bound thereby upon the expiration of that agreement.'" U.S. Department of The Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Cincinnati, Ohio District Office, 37 FLRA 1423, 1431 (1990). See, also, United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA 768, 773 (1996).

As noted above, the Master Agreement, and local agreements which were coterminous therewith, had automatically been extended to March 1, 1996, and the Union plainly had refused to reopen its Local Supplemental Agreement. Nevertheless, FBP, by its Operations Memorandum, gave notice that it would not be bound by provisions concerning starting and stopping times; that it would establish the parameters for all shift starting and stopping times; and that local bargaining would be permitted only within the parameters it established. FBP was free to take this action to change starting and stopping times upon expiration of the local agreement. [n7]

4. Respondent gave the Union notice of FBP's intent to change starting and stopping times and invited the Union's input; but Respondent did not give the Union notice of its proposed changes of shifts and tours of duty.

As noted above, Respondent on November 2, 1995, gave President Rodriquez a copy of FBP's Operations Memorandum and, as I have found, Captain Reich told Mr. Rodriquez, ". . . we needed together to sit down and put together some kind of plan that met the guidelines [of the Operations Memorandum] . . ."; that Mr. Rodriquez responded that, ". . . with the MOU . . . this didn't apply to us; that it applied to the institutions that were having portal-to-portal problems"; that when Captain Reich insisted that, "We've got to put together a plan", Mr. Rodriquez responded, "`The MOU stands,' as far as he was concerned. . . . and that the Union wasn't going to help us put together the plan to meet the ops memo; that we were violating the agreement . . ." (Tr. 63).

Mr. Rodriquez certainly was correct in part; but he was incorrect in other respects. He was wholly correct that, by directing implementation during the terms of the Local Supplemental Agreement and the MOU, Respondent was violating the agreement. Respondent was incorrect that it could require deference of I&I bargaining until after implementation (Res. Exhs. 1, 4, "Effective Date"). Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532 (1988); Headquarters, U.S. Air Force, Washington, D.C. and 375th Combat Support Group, Scott Air Force Base, Illinois, 44 FLRA 117, 125 (1992). [ v55 p217 ]

Mr. Rodriquez was incorrect that FBP could not limit the role of local negotiations and/or that either the Local Supplemental Agreement or the MOU prevented a change of starting and stopping times, or time in key line, after expiration of the Master Agreement.

Respondent's argument that the Union waived its right to bargain by failing to request bargaining (Respondent's Brief, pp. 9-10), is not correct and is rejected. While it is quite correct that Respondent gave the Union notice of FBP's intent to change starting and stopping times and invited the Union's input, FBP's stated intent to implement changes during the term of local agreements, over the Union's protest, was not a lawful notice of intent to change starting and stopping times after expiration of the local agreements. The Union properly refused to help Respondent violate its local agreements and did not thereby waive its right to negotiate. Moreover, Respondent on November 2, 1995, had no plan (Tr. 64) and, obviously, failed to notify the Union of the specific changes it intended to make. U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky, 38 FLRA 647, 649 (1990). Respondent after November 2, 1995, did submit proposals to FBP for approval but the record fails to show that Respondent ever gave the Union notice of any proposal. On December 13, 1995, Respondent's proposed roster was approved (Tr. 84, 85); the roster committee was informed; and on November 15, 1995, Respondent implemented the change in starting and stopping times by posting its January schedule, thereupon, as more fully set forth hereinabove, repudiated its Local Supplemental Agreement, in violation of §§ 16(a)(1) and (5) of the Statute and, in addition, by unilaterally changing shifts and tours of duty, which had more than a de minimis effect on employees, without providing the Union notice and an opportunity to bargain, Respondent violated §§ 16(a)(1) and (5) of the Statute. United States Customs Service, Southwest Region, El Paso, Texas, 44 FLRA 1128 (1992).

Having found that Respondent violated §§ 16(a)(1) and (5) of the Statute, both by its repudiation of the Local Supplemental Agreement and by its unilateral change of shifts and tours of duty without notice of specific changes proposed and an opportunity to bargain, it is recommended that the Authority adopt the following:

ORDER

Pursuant to § 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. § 2423.29, and § 18 of the Statute, 5 U.S.C. § 7118, it is hereby ordered that the U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut, shall:

1. Cease and desist from:

(a) Failing and refusing to bargain in good faith with the American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 1661 (hereinafter, "Union"), concerning shift starting and stopping times.

(b) Failing and refusing to abide by the Local Supplemental Agreement negotiated with the Union.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Forthwith rescind the change of starting and stopping times for Correctional Services employees which it implemented on December 15, 1995, by the posting of its quarterly roster.

(b) Upon rescission of the change as set forth in sub-paragraph (a), above, reinstate the starting and stopping times for the Correctional Services employees as they had been before the unlawful change implemented on December 15, 1995, i.e., specifically, as shown on the quarterly roster for Correctional Officers which had been effective from October 1, 1995, through December 30, 1995, and maintain these reinstated shifts and hours of duty for not less than three calendar months, which is the period the Union was deprived of the fruits of its negotiated Local Supplemental Agreement by Respondent's unlawful repudiation thereof.

(c) Give the Union notice of any proposed change in the shifts and tours of duty reinstituted pursuant to sub-paragraph (b), above; upon request, bargain in good faith concerning such proposed action; and maintain all shifts and tours of duty until negotiations have been completed.

(d) Post at its facilities at FCI Danbury, Danbury, Connecticut, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Warden, and shall be posted and main- [ v55 p218 ] ained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to § 2423.30, of the Authority's Rules and Regulations, 5 C.F.R. § 2423.30, notify the Regional Director of the Boston Region, Federal Labor Relations Authority, 99 Summer Street, Suite 1500, Boston, Massachusetts 02110, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

_______

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: April 17, 1997 Washington, DC

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to bargain in good faith with the American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 1661 (hereinafter, "Union"), concerning shift starting and stopping times.

WE WILL NOT fail or refuse to abide by the Local Supplemental Agreement negotiated with the Union.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employee in the exercise of their rights assured by the Statute.

WE WILL forthwith rescind the change of starting and stopping times for Correctional Services employees which we unlawfully implemented on December 15, 1995, by the posting of the quarterly roster.

WE WILL, upon rescission of the change set forth above, reinstate the starting and stopping times for the Correctional Services as they had been before the unlawful change imple-mented on December 15, 1995, i.e., specifically, as shown on the quarterly roster for Correctional Officers which had been effective from October 1, 1995, through December 30, 1995, and WE WILL maintain these reinstated shifts and hours of duty for not less than three calendar months, which is the period the Union was deprived of the fruits of its negotiated Local Supplemental Agreement by our unlawful repudiation of it.

WE WILL GIVE THE UNION NOTICE of any proposed change in the shifts and tours of duty reinstituted as set forth above; WE WILL, UPON REQUEST, bargain in good faith concerning such proposed action; AND WE WILL maintain all shifts and tours of duty until negotiations have been completed.

_______

(Agency or Activity)

Date: __ By: _______

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Boston Region, whose address is: 99 Summer Street, Suite 1500, Boston, Massachusetts 02110-1200, and whose telephone number is: (617) 424-5730.

File 1: Authority's Decision in 55 FLRA No. 37

File 2: ALJ's Decision

Footnote # 1 for
55 FLRA No. 37

• ALJ's Decision

For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116 (a)(5) will be referred to, simply, as, "§ 16(a)(5)."

Footnote # 2 for
55 FLRA No. 37

• ALJ's Decision

General Counsel's Motion To Correct Transcript, filed with his post-hearing brief, was unopposed and is granted except as to the requested change on page 105, line 23, which is denied. My recollection is that another FLRA representative was conversing in a "stage whisper" to Mr. Greene. When Ms. Risley asked that ". . . we not have these interruptions. This is very distracting", the record then shows the statement, "Excuse me. I'm sorry. I apologize" which is attributed to Mr. Greene. I have no recollection that the statement was not made by Mr. Greene and, because, if it were not made by Mr. Greene it was made by the FLRA representative who was doing the "stage whispering", the attribution to Mr. Greene appears correct, the transcript will stand as written. The transcript is hereby corrected as follows:

Page Line From To

11 11 "anti-remedy" " ante remedy"

11 13 "makeup remember" "make whole remedy"

23 15, 17, 20 "Alamar" "LMR"

24 8, 9, 10 "offices" "officers"

48 13 "That disagreement" "That this agreement"

121 9 "prevent" "permit"

128 21 "Guzzilen" "Gezelman"

129 1 "Guzzilen" "Gezelman"

Footnote # 3 for
55 FLRA No. 37

• ALJ's Decision

To be sure, Mr. Rodriquez's reference to the Local Supple-ment was responsive to changing the hours; but the issue of "tardiness", addressed only by the MOU, was a discrete question wholly independent of the starting time of any shift.

Footnote # 4 for
55 FLRA No. 37

• ALJ's Decision

Mr. Rodriquez stated that he never saw General Counsel Exhibit 6, a memorandum dated December 16, 1995, from Captain Reich to "All Correctional Officers" (G.C. Exh. 6), until May or June, 1996, when he received it from a representative of the Authority (Tr. 122). Necessarily, since he denied having seen it until five or six months later, he could not in December, 1995, have been aware of the reference on page 2 to the Operations Memorandum (Res. Exh. 1) which referred to the "tardiness" issue.

Footnote # 5 for
55 FLRA No. 37

• ALJ's Decision

The MOU provides in this regard as follows:

"3. Both parties (management & local) agree that this will remain as status quo until settled by the current court proceedings at the national level." (G.C. Exh. 3, Par. 3).

Footnote # 6 for
55 FLRA No. 37

• ALJ's Decision

I am well aware that the Complaint does not make any allegation concerning the Memorandum of Understanding and the record shows that the current practice at Respondent is:

"A If they're scheduled, the shift starts, for example, 4 o'clock, they must be in the key line at 4 p.m." (Tr. 95),

which, presumably, is in accordance with the Memorandum of Understanding (G.C. Exh. 3)(See, also, Tr. 35, 77), but note Mr. Rodriquez's statement:

"Q . . . So, if your shift starts at 7:45, as long as you are in the key line at 7:45, you are on time?

"A No, you're incorrect.

. . .

"A For being at work, yes, not for the relief. . . ." (Tr. 35).

Nevertheless, when Respondent's Operations Memorandum (Res. Exh. 1) was presented, the Memorandum of Understanding was in full force and effect and remained in full force and effect until at least March 1, 1996.

Footnote # 7 for
55 FLRA No. 37

• ALJ's Decision

Hours of work are permissive matters within the meaning of § 6(b)(1) of the Statute and the Master Agreement places control of permissive matters in FBP. Recognizing that Executive Order 12871 (October 1, 1993), in Section 2(d), directs the head of each agency to:

"(d) negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same. . . .",

nevertheless, FBP remained free to control the negotiation of permissive matters and its determination to limit local negotiation was not inconsistent with E.O. 12871.