United States, Department of Veterans Affairs, Consolidated Mail Outpatient Pharmacy, Leavenworth, Kansas (Respondent) and American Federation of Government Employees, AFL-CIO, Local 85 (Charging Party) (Authority decision, April 15, 2005)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case under 5 U.S.C. § 7118. 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). The Authority dismisses the complaint in full.

Plain-English summary

A VA mail pharmacy and its union signed two local agreements that removed Saturdays from the regular workweek and set procedures for weekend overtime. As prescription workload grew, the pharmacy proposed restoring a six-day schedule and invited bargaining; the union refused, citing the agreements. An administrative law judge found that restoring Saturday work repudiated the agreements. The Authority majority disagreed, finding that the master agreement allowed the pharmacy to reopen bargaining over scheduling and that government work schedule regulations permitted a change under the documented workload conditions. It dismissed the unfair labor practice complaint. Member Pope dissented, finding that the majority misread the agreements and relied on a regulatory ground the pharmacy had not raised.

Decision snapshot

• Authority: 5 U.S.C. §§ 7106(b)(1), 7116(a)(1), 7116(a)(5), and 7118; 5 C.F.R. § 610.121.
• Outcome: Judge's repudiation finding reversed; complaint dismissed.
• Key point: The majority found that the pharmacy could seek a schedule change under the master agreement and applicable work schedule regulations.

Full text (FLRA public release)

[ v60
p844 ]

60 FLRA No. 159

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS

CONSOLIDATED MAIL

OUTPATIENT PHARMACY

LEAVENWORTH, KANSAS

(Respondent)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 85

(Charging Party)

DE-CA-02-0321

_____

DECISION AND ORDER

April 15, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exceptions.

The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by repudiating two Memoranda of Understanding (MOUs) when it reinstated a tour of duty that included Saturdays as part of the regular workweek. The Judge found that the Respondent violated the Statute, as alleged.

Upon consideration of the Judge's decision and the entire record, we conclude, for the reasons set forth below, that the Respondent did not violate the Statute. Accordingly, we dismiss the complaint.

II. Background and Judge's Decision

A. Background

The American Federation of Government Employees, AFL-CIO, National Veterans Affairs Council of Locals (AFGE) and the Department of Veterans Affairs (VA) have a master nationwide agreement that took effect in 1997 for a period of 3 years and was thereafter automatically renewed. At the time of the events giving rise to this case, AFGE and the VA were renegotiating the master agreement. Article 44 of the master agreement concerns midterm negotiations, and addresses, among other things, negotiations over matters covered under § 7106(b)(1) of the Statute. [n2]

The Respondent in this case, the Consolidated Mail Outpatient Pharmacy (CMOP), Leavenworth, Kansas, is one of seven pharmacies within the VA. The Respondent provides pharmaceutical care to veterans and healthcare providers. The Respondent's goal is to fill and send prescriptions within 48 hours of receiving them. AFGE Local 85 (the Union) is AFGE's agent at the Respondent's facility, and represents pharmacy technicians and housekeepers.

Before November 2000, the Respondent scheduled employees to work one shift, with two different starting and quitting times. The shift was a six-day, 40-hour workweek that included Saturday as part of the employees' regular tour of duty. About that time, the Respondent sought to add a second shift because it had assumed responsibility for filling prescriptions from additional VA facilities.

On October 16, 2000, the Respondent and the Union entered into a local MOU that established two separate work shifts at the Respondent's facility. In relevant part, paragraph 7 of this MOU states that "[a]fter implementation of the two separate shifts, Saturday will be eliminated from the regular tour of duty." Joint Ex. 2. Subsequently, on November 3, 2000, the Respondent [ v60 p845 ] and the Union entered into another local MOU, which contains procedures for assigning overtime work on weekends at the facility. See Joint Ex. 3. Among other things, paragraph 3 of the November MOU provides "that in the event CMOP must be operated on Saturday or Sunday and where there were insufficient volunteers, management could mandate either day or evening shifts to work on the weekend." Judge's Decision at 14. Neither MOU contains an expiration date or refers to the Master Agreement.

After the MOUs were implemented, the Respondent began operating two shifts -- 6:30 a.m. to 3:00 p.m. and 3:00 p.m. to midnight. The regular tour of duty for both shifts was Monday through Friday.

Beginning in February 2001, the Respondent determined that it was necessary to schedule employees to work overtime on Saturdays because of increased workload. During 2001, the Respondent scheduled employees to work overtime on 44 weekends, 10 of which were mandatory assignments because insufficient volunteers were available.

By memorandum of January 24, 2002, the Respondent notified the Union that its workload had continued to increase over the previous six months and was projected to continue to increase. The memo further stated:

The existing schedule has not met the needs and increasing demands of the current work requirements. In order to expedite the medications to our veterans in a timely manner, we continue to schedule Saturday production, on an overtime basis. We have met with the union representative weekly to discuss any possible alternatives. These alternatives have been very limited and unable to meet the continuing demands. Therefore, we intend to return to the six-day workweek schedule, to include holiday scheduling on a fair and equitable basis.

We will have an informational meeting . . . and we encourage you to attend so we can hear and respond to your questions and concerns. In accordance with the Master Agreement, if you believe there are matters that you wish to negotiate prior to implementation of this decision, you may request to negotiate in accordance with the Labor Agreement. If no such request is received, the proposal will be implemented. If negotiations are requested, we want to schedule them as soon as possible.

Joint Ex. 4.

The Union responded on the same day, stating that it "has no intentions [sic] of reopening these negotiations. We have a signed MOU which does not have a reopening clause." Joint Ex. 5. The Union requested that the Respondent "[c]ease and desist the implementation of the proposed tour change." Id.

By memorandum dated March 5, 2002, the Respondent again advised the Union of the planned return to the six-day workweek and stated that "[i]f you plan to negotiate prior to implementation of this scheduling, please notify me as to your availability. If negotiations are requested, we want to schedule them as soon as possible." Joint Ex. 6. In response, and referring to its prior statement, the Union maintained that it "was not reopening the negotiations over these issues. [The Union] stands firm with that decision. . . . At this time we are once again denying your request to reopen these negotiations, and are demanding you cease and desist the implementation of your proposed scheduling changes." Joint Ex. 7.

By memorandum to the Union dated March 12, 2002, the Respondent stated:

This is in response to your memorandum . . . declaring that [the Union] `stands firm' on its decision to not negotiate CMOP management's proposal to return to a 6-day workweek schedule. Your memorandum clearly indicates that you believe previously negotiated MOUs should remain in force and that management does not have the right to present new proposals without approval of [the Union.]

Management asserts that determination of the operational workweek is its protected right under the Labor Statute. It is an inherent part of determining the mission and number of employees necessary to accomplish the mission. This includes making changes from established workweek schedules when the mission requires, and the MOUs currently in effect do not restrict management from making such changes. Management has not and will not `bargain away' that right. At the same time, management recognizes its obligation to provide opportunity to
[the Union] to bargain over the procedures and arrangements/impact and implementation of work schedules. CMOP management has consistently provided that opportunity whenever it has identified the need for a change in work schedules, as evidenced by the MOUs currently in effect. You received notice on January 24, 2002, that CMOP was proposing to return to the [ v60 p846 ] 6-day workweek schedule, and you were given the opportunity to bargain. You responded in writing on January 24, 2002, and again on March 8, 2002, that you would not negotiate.

Management believes that it has met its obligation under the Labor Statute to provide opportunity to negotiate. Therefore, the proposed 6-day workweek schedule will be implemented.

Joint Ex. 8 (emphasis added).

B. Judge's Decision

The Judge found that the Respondent's conduct violated the Statute.

As to the October MOU, the Judge found that the Respondent's implementation of a six-day workweek was inconsistent with the portion of the MOU which provides that "after implementation of two separate shifts, Saturday will be eliminated from the regular tour of duty." Judge's Decision at 14. The Judge found that "[i]n exchange for adding the second shift at the CMOP, [the] Respondent agreed to eliminate Saturday from the regular tour of duty-which was the quid pro quo for the agreement." Id. Applying Dep't of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Ill., 51 FLRA 858 (1996) (Scott), the Judge also concluded that the Respondent's clear and patent breach of this MOU "goes to the heart of the agreement[,]" finding that "[t]he record fully supports a finding that the Union and the employees viewed the elimination of Saturdays from the regular tour of duty as the essential ingredient of the agreement." Judge's Decision at 15.

As to the November MOU, the Judge concluded that the Respondent's failure to meet with the Union before determining that it would operate on Saturdays and to seek volunteers for weekend work constituted a clear and patent breach of that agreement. Further, the Judge found that the Respondent's actions went to the heart of the agreement, stating that "how employees would be selected to work on the weekend and procedures to be followed indeed were of paramount concern to employees." Id.

In reaching these results, the Judge determined that the MOUs are "tied to the [master agreement] and they remain in effect during the effective term of the [a]greement unless changes are negotiated." Id. at 16. The Judge stated that the MOUs were negotiated in accordance with Article 44 of the master agreement and that Article 44 governs midterm bargaining. More specifically, as to the October MOU, the Judge explained that it

was negotiated in accordance with E.O. 12871 as provided in Article 44, Section 1 B, which provision states that if E.O. 12871 is rescinded, nevertheless, ". . . agreements reached during the effective term of this Master Agreement will remain in effect unless changes are negotiated . . . ." This language, I interpret to mean, that agreements reached (i.e. MOUs) during the effective term of the [Master] Agreement, remain in effect for the duration of the [Master] Agreement unless changes are negotiated.

Id. (emphasis in original; citations omitted).

The Judge found that when workload problems arose in late 2001, the "Respondent could have terminated the [Master] [A]greement." [n3] Id. at 17. The Judge found that the "Respondent did not [do so] and the Agreement thus automatically renewed itself with the renegotiation of the Agreement." Id. Noting that the MOUs did not contain duration clauses, the Judge found that Article 44 gave the MOUs a duration -- namely, "for the term of the Agreement, unless changes are negotiated." Id. (emphasis in original). [n4] The Judge determined that the Union was not obligated to negotiate changes in the MOUs because those agreements remained in effect for the duration of the Master Agreement. See id.

Based on these findings, the Judge concluded that the Respondent violated § 7116(a)(1) and (5) of the Statute by repudiating the October and November MOUs. As a remedy, the Judge ordered the Respondent to comply with the MOUs.

III. Positions of the Parties

A. Respondent's Exceptions

The Respondent excepts to certain factual findings made by the Judge and to other factual findings that he failed to make. It also excepts to his legal conclusion that the Respondent repudiated the MOUs, and to the remedy.

The Respondent asserts that the October MOU "was not the result of 7106(b)(1) negotiations[,]" and [ v60 p847 ] that the parties have differing views as to the meaning of paragraph 7. Exceptions at 8 (emphasis omitted). Citing Scott, the Respondent contends that where an agency acts in accordance with a reasonable interpretation of an agreement provision, the agency's breach of the provision is not a clear and patent breach. According to the Respondent, it included paragraph 7 "as a clarification of what the scheduled workweek would be after implementation of the second shift." Id. at 9. The Respondent argues that it was reasonable "to interpret the MOU as allowing it to . . . return to a schedule that incorporated Saturday into the regular workweek, in response to production needs and the welfare of employees." Id.

The Respondent further argues that its witnesses testified that "by entering into the MOU, management was not forfeiting its right to assign work." Id. at 10. The Respondent contends that it has the "ability to adjust to the workload demands of the VA medical centers[,]" and that in the MOUs it "desired to reserve its right to assign work on Saturdays if that became necessary, which in fact happened." Id. at 12. Citing 5 C.F.R. § 610.121(b)(1), the Respondent asserts that it has "the authority to schedule the work of [its] employees to accomplish the Respondent's mission." [n5] Id. In this regard, the Respondent maintains that to construe the MOUs as "a determination that they removed management's established right to schedule Saturday work[] would be contrary to federal regulations." Id. at 12-13. The Respondent additionally contends:

[T]he intent of the MOUs was only to clarify that the creation of a second shift adequately addressed production needs, such that Saturday would not be scheduled as part of the regular workweek. When production needs changed, the Respondent had the reserved right to return Saturday as a regularly scheduled work day.

The Respondent exercised its right to establish a second shift of work to accommodate a workload increase. To provide clarification to the [Union] that it did not foresee a need to continue operations on Saturday, it expressed its foreseeability in the MOU. The [Judge's] interpretation of the MOU is contrary to federal regulations, such that it strictly limits the Respondent's ability to schedule work on Saturdays. The November 3 MOU admittedly allows the Respondent to schedule work on Saturdays, but only on an overtime basis. Such a condition is not in compliance with the regulation that reserves the scheduling of the regular workweek to management.

Id. at 13.

The Respondent also maintains that the MOUs were terminable at will because the MOUs do not contain expiration dates and are not directly tied to the master agreement. The Respondent asserts that construing the MOUs as eliminating Saturday from the regular workweek "is impracticable and potentially dangerous" at this time. Id. at 16. The Respondent states that when it implemented a two-shift schedule, management concluded that such a schedule would sufficiently address workload needs. However, when the workload increased because of production demands, the Respondent essentially maintained that it would be seriously handicapped in carrying out its mission of providing pharmaceutical care for veterans. In this regard, the Respondent specifically excepts to the Judge's failure to find that: (1) "the overtime work that resulted from scheduling Saturdays and Sundays caused an increase in prescription errors and employee sick leave usage[;]" (2) "the total number of hours the Respondent's employees worked per week was much greater when Saturday was treated as an overtime day[;]" and (3) the veteran population "has gone from 2.6 million to 6 million, resulting in a twenty-eight percent increase in prescription workload for the Respondent." Id. at 8. The Respondent contends that these findings, which are supported in the record but were not found as facts by the Judge, "all support that the Respondent's production needs were significantly disrupted by adhering to the MOUs." Id.

Moreover, even assuming, as the Judge found, that the MOUs were negotiated pursuant to Executive Order 12871, the Respondent asserts that after the recission of that Order by Executive Order 13203, it had the authority "to propose changes to the MOUs[.]" Id. at 17. In this connection, the Respondent states that it attempted to negotiate changes to the MOUs and that the Union "emphatically refused to negotiate." Id. According to the Respondent, "[i]f one party is allowed to refuse negotiation of a prior agreement that the other party is allowed to reopen, the reopening will never occur." Id. at 18.

The Respondent also specifically excepts to the Judge's conclusion that when the Respondent found that overtime scheduled pursuant to the November MOU increased, "it could have terminated the Master Agreement, but because it did not, both MOUs remained in effect after the Master Agreement renewed itself automatically." [ v60 p848 ] Id. at 17. According to the Respondent, the Judge's conclusion is "unreasonable" because "[t]he Respondent, by itself, did not have the authority to terminate the Master Agreement." Id.

Finally, the Respondent excepts to the remedy ordered by the Judge. The Respondent reiterates that it "made the decision to reschedule Saturdays because production needs required it. In order to meet the demands placed on it by the VA medical centers it serves, and timely mail prescription drugs to veterans, the Respondent had to reincorporate Saturday as part of the regular workweek." Id. at 18. The Respondent asserts that, if a violation is found, any remedy that would preclude the Respondent from scheduling Saturday as part of the regular workweek unless the Charging Party consents "would substantially disrupt the Respondent's mission to timely and safely provide prescription medications to veterans." Id. at 19.

B. General Counsel's Opposition

The General Counsel contends that the Judge's conclusion that the Respondent repudiated both MOUs is consistent with Authority precedent and is supported by record evidence.

As to the October MOU, the General Counsel asserts that the wording of paragraph 7 is "unambiguous" in that it provides for the elimination of Saturday as part of the regular tour of duty. Opposition at 6. With respect to the Respondent's contention that the MOUs conflict with 5 C.F.R. § 610.121(b)(1), the General Counsel argues that the Respondent has presented no evidence that it would be "seriously handicapped in carrying out its functions or that costs would be substantially increased' if it were unable to schedule employees to work on Saturdays as part of the regular tour of duty." Id. at 9. The General Counsel adds that "because the November 3 MOU contemplates the Respondent's assignment of weekend overtime work, the Respondent cannot seriously contend that the October 16 MOU undermined its ability tocarry out its functions.'" Id.

The General Counsel also disputes the Respondent's contention that the MOUs were terminable at will. The General Counsel maintains that the Judge correctly found that the MOUs were tied to the master agreement and remained in effect for the duration of the master agreement. See id. at 6-7. The General Counsel rejects the Respondent's claim that Executive Order 13203 permitted the Respondent to unilaterally reopen negotiation on the MOUs. The General Counsel asserts that, under the terms of Executive Order 13203, as well as Article 44 of the master agreement, the revocation of Executive Order 12871 did not affect agreements that were already in place.

Finally, the General Counsel contends that the Judge's status quo ante remedy is appropriate and is consistent with Authority precedent.

IV. Analysis and Conclusions

The complaint alleges that the Respondent impermissibly repudiated the MOUs when it reinstated a tour of duty that includes Saturdays as part of the regular workweek. For the following reasons, we conclude that the Respondent's action of reinstating the tour of duty did not constitute an impermissible repudiation of the MOUs because such action was: 1) authorized by Article 44 of the VA-AFGE Master Agreement; and 2) authorized by applicable government-wide regulations. Accordingly, we will dismiss the complaint.

A. The Respondent's Action was Authorized by
Article 44 of the Master Agreement

In Scott, 51 FLRA 858, the Authority set forth the analytical framework it follows for determining whether a party's failure or refusal to honor an agreement constitutes a repudiation of a collective bargaining agreement. The Authority held that it will examine two elements in analyzing an allegation of repudiation: (1) the nature and scope of the alleged breach of the agreement (i.e., was the breach clear and patent?); and (2) the nature of the agreement provision allegedly breached (i.e., did the provision go to the heart of the parties' agreement?). The examination of either element may require an inquiry into the meaning of the agreement provision allegedly breached.

With regard to the first element, it is necessary to show that a respondent's action constituted "a clear and patent breach of the terms of the agreement[.]" Scott, id. at 862, quoting Cornelius v. Nutt, 472 U.S. 648, 664 (1985) (citation omitted). If the meaning of a particular agreement term is unclear and a party acts in accordance with a reasonable interpretation of that term, that action will not constitute a clear and patent breach of the terms of the agreement. See id. In such a case it is not necessary to examine the second element. See id. at 863-64. Where the second element is analyzed, however, if a provision is not of a nature that goes to the heart of the parties' collective bargaining agreement, a breach of the provision could not amount to a repudiation and, therefore, would not constitute an unfair labor practice. See id. at 863.

As an initial matter, we find that the Respondent has failed to establish that the Judge erred in determining [ v60 p849 ] that the MOUs were part of, or "tied to," the collective bargaining agreement. The record demonstrates that the index to the master agreement between AFGE and the VA contains one entry for "Memorandums of Understanding." This entry refers to the page on which Article 44, entitled "Mid-Term Bargaining" appears. It is apparent, therefore, that the parties intended to negotiate MOUs consistent with the parties' mid-term bargaining obligations and that such MOUs were to become a part of the parties' agreement. Under these circumstances, we find that the Judge's determinations that the MOUs were negotiated in accordance with Article 44 and were to remain in effect during the term of the agreement are correct and we reject the Respondent's contention that the MOUs were terminable at will.

Nonetheless, we find that the Judge incorrectly concluded that the Respondent repudiated the MOUs.

As noted, Article 44 pertains to mid-term bargaining and authorizes negotiations on the "numbers, types, grades of employees, and positions assigned to any organizational subdivision, work project, [or] tour of duty . . ." under § 7106(b)(1) of the Statute and Executive Order 12871. Although the Respondent asserts that the MOUs were not negotiated consistent with Executive Order 12871, the Respondent further asserts that, even if that were the case, "[a] reasonable interpretation of Article 44 of the Master Agreement is that the rescission of Executive Order 12871 allowed either party in this case to propose changes to § 7106(b)(1) issues that were negotiated prior to the rescission date." Exceptions at 17.

When a defense to an unfair labor practice complaint is governed by the interpretation and application of specific terms of a collective bargaining agreement, as the Respondent asserts with respect to Article 44 in this case, the meaning of the provision must be ascertained. As the Judge's interpretation of the agreement is challenged on exceptions, the Authority must decide whether the Judge's determination is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts. See, e.g., United States Dep't of Veterans Affairs, 57 FLRA 515, 519 (2001); United States Dep't of Justice, INS, Wash., D.C., 52 FLRA 256, 261 (1996); IRS, Wash., D.C., 47 FLRA 1091, 1111 (1993). Therefore, the issue to be resolved in this case is whether the Judge's interpretation of Article 44 of the parties' agreement is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts.

As relevant here, Article 44, Section 1.B provides that "[i]n the event Executive Order 12871 is rescinded and the Department chooses not to bargain 5 U.S.C. Section 7106(b)(1), either party may reopen this Article to address the 7106(b) issues." That section also provides that "agreements reached during the effective term of this Master Agreement will remain in effect unless changes are negotiated." The Judge concluded that the Union was not obligated to negotiate over the Respondent's proposed changes in the MOUs because those agreements remained in effect for the duration of the master agreement. In reaching this result, the Judge noted that neither MOU had a reopener provision and that Executive Order 13203 provided that "nothing therein shall abrogate any collective bargaining agreement in effect on the date of E.O. 13203 [February 17, 2001]." Judge's Decision at 17. We find that the Judge erred by failing to find that the Respondent had the right, under the terms of Article 44, to negotiate changes to the MOUs.

The Authority has held that, absent a reopener clause, parties are not permitted to demand mid-term bargaining over matters that are covered by an agreement. See, e.g., United States Dep't of Labor, Wash., D.C., 60 FLRA 68, 72 (2004) (citing United States Dep't of Health & Human Servs., SSA, Balt., Md., 47 FLRA 1004, 1013 (1993)). In this case, Article 44 clearly permitted the reopening of the MOUs in the following respect. [n6]

By its terms, Article 44 states that in the event Executive Order 12871 is rescinded and the Respondent chooses not to bargain over § 7106(b)(1) matters, "either party may reopen this Article to address the 7106(b) issues." Article 44 further states that agreements reached during the term of the agreement remain in effect "unless changes are negotiated" and provides that both parties retain their statutory rights.

E.O. 12871 was rescinded by the promulgation of E.O. 13203. As such, under Article 44, either party was free at that time to reopen Article 44 itself to address "7106(b) issues." [n7] As for agreements that had been reached during the term of the master agreement, such as the October and November 2000 MOUs, the parties [ v60 p850 ] agreed that they would remain in effect unless changes to such agreements were negotiated.

In interpreting Article 44, the Judge referred to the phrase "unless changes are negotiated" on several occasions but he did not address the meaning of the phrase. As noted above, determining whether there has been a breach of an agreement may require an inquiry into the meaning of the agreement provision allegedly breached. Where the meaning of a particular agreement term is unclear and a party acts in accordance with a reasonable interpretation of that term, that action will not constitute a clear and patent breach of the terms of the agreement.

A plain reading of Article 44 demonstrates that, by including the phrase "unless changes are negotiated," the parties clearly contemplated that existing agreements covering matters under § 7106(b)(1) of the Statute could be modified during the term of the master agreement. What is less clear, however, is whether mutual assent of the parties is required in order to initiate negotiations or whether one party may invoke the negotiation process. Nothing in Article 44 either expressly requires mutual assent or expressly permits one party to refuse to negotiate when the other party seeks to make scheduling changes. Accordingly, and consistent with the Respondent's rights under § 7106(b)(1) to determine the numbers, types and grades of employees assigned to tours of duty, we find that the Respondent reasonably interpreted Article 44 as allowing it to initiate the bargaining process with respect to the matters contained in the MOUs.

In this case, the record reflects that, on two occasions, in January and again in March, 2002, the Respondent advised the Union of severe workload problems and the need to return to a six-day work schedule. The Respondent also invited the Union to negotiate and submit proposals. There is no dispute that the Union expressly refused to bargain on both occasions.

Where, as here, the Respondent acted reasonably in reopening negotiations under Article 44 of the parties' agreement, and the Union refused to bargain, there can be no clear and patent breach of the MOUs. See, e.g., Scott, 51 FLRA 858 (Authority found no repudiation of parties' smoking agreements where respondent was allowed to implement changes without bargaining in various situations). See also Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1536 (1996) (once adequate notice is given, a union must act to submit proposals, request additional information, or request additional time; a failure to take such action may result in finding that the union waived its right to bargain).

Accordingly, we find that the Judge erred in concluding that the Respondent could not negotiate changes to the MOUs. [n8]

B. The Respondent's Action was Authorized by Applicable Government-wide Regulations

In addition to the standard set forth above, we note that in order to constitute a repudiation of a collective bargaining agreement provision, the provision at issue must be a lawful one. An agency's failure to follow an illegal agreement provision does not constitute a repudiation of the parties' agreement. See, e.g., Office of the Adjutant Gen., Ga. Dep't of Defense, Atlanta, Ga., 54 FLRA 654 (1998) (respondent's refusal to honor portion of agreement that authorized the use of official time in order to lobby Congress in a support or opposition to pending or desired legislation held not to be unlawful because the use of such time for such purposes was inconsistent with section 8015 of the 1996 DOD Appropriations Act); Gen. Servs. Admin., Wash., D.C., 50 FLRA 136 (1995) (respondent's refusal to honor portion of agreement that authorized combination of work schedules held not to constitute an unlawful repudiation because agreement portion was contrary to the Work Schedules Act); Dep't of the Navy, United States Marine Corps, 34 FLRA 635 (1990) (respondent's repudiation of memorandum of understanding that required it to pay for reflective safety vests that were not used in the performance of work held not unlawful as payment for vests was inconsistent with law).

In order to be lawful, the MOUs in this case must be read in a manner that allows the Respondent to act in accordance with 5 C.F.R. § 610.121. The Authority has found previously that 5 C.F.R. § 610.121 is a Government-wide regulation. See AFGE, Local 1815, 53 FLRA 606, 619 (1997). As set forth therein, 5 C.F.R. § 610.121(b)(1) requires that agencies: (1) schedule employees' work so as to accomplish the agency's mission, and (2) schedule administrative workweeks to correspond with actual work requirements. [ v60 p851 ] The Authority has held that 5 C.F.R. § 610.121(b) is qualified by 5 C.F.R. § 610.121(a). See United States Dep't of the Navy, Phila. Naval Shipyard, 39 FLRA 590, 604 (1991); NAGE, Local R7-23, 23 FLRA 753, 755-56 (1986).

5 C.F.R. § 610.121(a) explicitly permits an agency to change employees' work schedules without limitation "when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased[.]" 5 C.F.R. § 610.121(a). 5 C.F.R. § 610.121(a) also provides that the basic workweek should be scheduled on Monday through Friday, when possible. However, it is well established that agencies have discretion to deviate from the basic workweek, as the Respondent sought to do by reinstating Saturday as part of the workweek. See Acuna v. United States, 479 F.2d 1356 (Cl. Ct. 1973), cert. denied, 416 U.S. 905 (1974). Furthermore, as we stated in United States Dep't of Commerce, NOAA, Nat'l Weather Serv., 49 FLRA 1563, 1565 (1994) (NOAA), 5 C.F.R. §_610.102 provides that the authority to establish employee work schedules may be delegated by agency heads to lower-level officials. We find here, as the Authority did in NOAA, that it is reasonable to conclude that agency officials who have been delegated authority to establish work schedules for a particular organizational segment also have authority to make changes in those schedules based on consideration of the effects of schedules on that segment. [n9]

A proposal or provision that does not allow an agency to change employees' work schedules without limitation pursuant to the situations set forth in § 610.121 is contrary to that regulation. See IAM&AW, 59 FLRA 830, 831-32 (2004) (proposal nonnegotiable that required the agency to schedule, without exception, the third shift basic workweek for five consecutive eight-hour work days, Sunday-Thursday); Haw. Fed. Employees Metal Trades Council, 57 FLRA 450, 452 (2001) (proposal nonnegotiable that required the agency to schedule, without exception, certain employees on the fourth day of a five-day process in which it occasionally drydocked nuclear submarines to either begin work at their normal start times or work fourteen hours); AFGE, Local 1815, 53 FLRA at 619-20 (provision contrary to law that permitted agency to change work schedules with less than seven days notice only when "there is an emergency that would hamper accomplishment of the mission" because it precluded changes when costs would be substantially increased). Thus, to the extent the MOUs were interpreted as not allowing the exercise of this authority, the MOUs would be contrary to the regulation and unenforceable.

The Respondent argues before the Authority, as it did before the Judge, that it decided to reinstate Saturday as part of the regular workweek because its ability to carry out its function of providing pharmaceutical care to veterans and healthcare providers was being seriously circumscribed. The Respondent states that when it implemented a two-shift schedule following negotiation of the MOUs in 2000, management concluded that such a schedule would sufficiently address workload needs. However, that situation changed and, in 2002, the Respondent advised the Union that changes in the workweek were required and invited the Union to bargain.

As noted earlier, the Respondent specifically excepts to the Judge's failure to find that: (1) "the overtime work that resulted from scheduling Saturdays and Sundays caused an increase in prescription errors and employee sick leave usage[;]" (2) "the total number of hours the Respondent's employees worked per week was much greater when Saturday was treated as an overtime day[;]" and (3) the veteran population "has gone from 2.6 million to 6 million, resulting in a twenty-eight percent increase in prescription workload for the Respondent." Exceptions at 8. See also Respondent's Posthearing Brief at 10, 13.

We find that the record supports the Respondent's claims. In this regard, the record shows that, by memorandum of January 24, 2002, the Respondent notified the Union that its workload had continued to increase over the previous six months and was projected to continue to increase. The memo further stated: "The existing schedule has not met the needs and increasing demands of the current work requirements." Joint Ex. 4. The record further shows that a Respondent witness testified, without contravention, that the Respondent decided that the scheduling of employees to perform overtime on Saturdays became excessive and resulted in "more errors occurring" and "sick leave usage." See Tr. at 142-43. In the absence of any assertion or evidence to the contrary, we find that the Judge erred by failing to make findings on these points.

Because the Respondent's actions were consistent with and satisfied the standards of 5 C.F.R. § 610.121, it did not repudiate the MOUs. Consequently, the [ v60 p852 ] Respondent did not commit an unfair labor practice, as alleged in the complaint.

C. Conclusion

For the reasons expressed above, we find that the Respondent did not violate the Statute. Accordingly, we dismiss the complaint.

V. Order

The complaint is dismissed.

APPENDIX

5 C.F.R. § 610.121 provides, in relevant part:

(a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide that--

(1) Assignments to tours of duty are scheduled in advance of the administrative workweek over periods of not less than 1 week;

(2) The basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;

. . . .

(b)(1) The head of an agency shall schedule the work of his or her employees to accomplish the mission of the agency. The head of an agency shall schedule an employee's regularly scheduled administrative workweek so that it corresponds with the employee's actual work requirements.

(2) When the head of an agency knows in advance of an administrative workweek that the specific days and/or hours of a day actually required of an employee in that administrative workweek will differ from those required in the current administrative workweek, he or she shall reschedule the employee's regularly scheduled administrative workweek to correspond with those specific days and hours. . .

File 1: Authority's Decision in 60
FLRA No.
159

File 2: Opinion of Member Pope

File 3: ALJ's Decision

Footnote # 1 for
60
FLRA No. 159

• Authority's Decision

Member Pope's dissenting opinion appears at the end of this decision.

Footnote # 2 for
60
FLRA No. 159

• Authority's Decision

Article 44, entitled "Mid-term Bargaining" provides, as relevant here:

Section 1 - General

A. The purpose of this Article is to establish a complete and orderly process to govern midterm negotiations at all levels. . . .

B. In accordance with Executive Order 12871, the Department will bargain on the numbers, types, grades of employees, and positions assigned to any organizational subdivision, work project, tour of duty, and the technology, methods, and means of performing work. . . . In the event Executive Order 12871 is rescinded and the Department chooses not to bargain 5 U.S.C. Section 7106(b), either party may reopen this Article to address the 7106(b) issues. However, agreements reached during the effective term of this Master Agreement will remain in effect unless changes are negotiated. Both parties continue to retain their statutory rights.

Joint Ex. 9 at 171.

Footnote # 3 for
60
FLRA No. 159

• Authority's Decision

The Judge did not explain how the Respondent (the CMOP in Leavenworth) could have terminated the nationwide Master Agreement, which was entered into at the level of exclusive recognition between the VA and AFGE. The VA is not a respondent in this case.

Footnote # 4 for
60
FLRA No. 159

• Authority's Decision

The Judge also concluded that the MOUs were not "terminable at will," a matter the Judge raised at the hearing. Judge's Decision at 15; Tr. at 126.

Footnote # 5 for
60
FLRA No. 159

• Authority's Decision

The relevant provisions of 5 C.F.R. § 610.121 are set forth in the attached appendix.

Footnote # 6 for
60
FLRA No. 159

• Authority's Decision

The General Counsel disputes the Respondent's claim that Executive Order 13203 permitted the reopening of the MOUs. The GC asserts that, under the terms of that Order, as well as the master agreement, the rescission of Executive Order 12871 had no effect on agreements already in place, such as the MOUs. However, the General Counsel does not address the portion of Article 44 providing that agreements will remain in effect "unless changes are negotiated."

Footnote # 7 for
60
FLRA No. 159

• Authority's Decision

The fact that E.O. 13203 itself does not abrogate existing agreements does not address any other provisions that parties may have negotiated that authorize the reopening and renegotiation of existing agreements.

Footnote # 8 for
60
FLRA No. 159

• Authority's Decision

We also disagree with the Judge's finding that the Respondent could have terminated the collective bargaining agreement, and presumably the MOUs, "[w]hen the workload showed evidence of a problem[.]" Judge's Decision at 17. The VA, not the Respondent in this case, is a party to the collective bargaining agreement. The Judge cited no authority by which the Respondent could have taken such an action.

Footnote # 9 for
60
FLRA No. 159

• Authority's Decision

Although the General Counsel asserts that the Respondent's arguments regarding § 610.121 are without merit and there was no evidence that the Respondent relied on § 610.121, the Respondent argued throughout that it was entitled to change the workweek, a matter that is governed by § 610.121.

Separate opinion of Member Pope (official HTML attachment)

[ v60
p853 ]

Dissenting Opinion of Member Carol Waller Pope:

The issue before the Authority is whether the Judge correctly found that the Respondent unlawfully repudiated two MOUs addressing work on Saturdays. For the reasons that follow, the Judge clearly was correct. In reaching a contrary conclusion, the majority applies an incorrect legal standard, misconstrues the contract terms at issue, and relies on argument the Respondent never made. Therefore, I dissent.

As for the appropriate legal standard, the majority fails to apply clear precedent requiring the Authority to resolve a contractual defense to an alleged unfair labor practice (ULP) by determining the meaning of the contractual provision relied on. It is undisputed, in this regard, that where, as here, a respondent defends its actions by relying on a contractual provision, the Authority ascertains the actual meaning of the contract provision using the standards and principles of interpreting agreements applied by arbitrators and the federal courts. See IRS, Wash., D.C., 47 FLRA 1091, 1111 (1993) (IRS). See also, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Florence, Colo., 59 FLRA 165, 171-72 (2003).

The Respondent claims that, under Article 44, § 1 B (hereinafter Article 44), it was permitted to terminate the MOUs based on rescission of Executive Order 12871. See Exceptions at 17. [n1] Article 44 provides, in the first two sentences, that the Respondent: (1) agrees to bargain over matters under § 7106(b)(1) of the Statute in accordance with Executive Order 12871, and (2) will not use § 7106(a) of the Statute to circumvent this contractual obligation to bargain. The third and fourth sentences provide:

In the event Executive Order 12871 is rescinded and the Department chooses not to bargain 5 U.S.C. Section 7106(b), either party may reopen this Article to address the 7106(b) issues. However, agreements reached during the effective term of this Master Agreement will remain in effect unless changes are negotiated.

Joint Ex. 9 at 171.

The Judge interpreted Article 44 to mean that agreements reaching during the term of the master agreement, including the two MOUs in this case, remain in effect during the term of the agreement unless the parties negotiate changes to the MOUs. See Judge's Decision at 16-17. According to the Judge, "[t]he Union was under no obligation to negotiate changes in the MOU[s] because those agreements remained in effect" during the term of the agreement. Id. at 17. Applying IRS, it is indisputable, in my view, that the Judge's interpretation is supported. I note, in this regard, that neither the GC nor the Respondent offered evidence regarding the interpretation of Article 44, such as bargaining history. Thus, the provision must be interpreted pursuant to its plain wording.

Examining the plain wording, two things are evident. First, Article 44 and the agreements reached under Article 44 are dealt with quite differently. In particular, the parties agreed to a unilateral right to act only with respect to reopening Article 44 -- "either party" may reopen Article 44 upon rescission of Executive Order 12871. The parties did not agree on similar wording in connection with agreements negotiated under Article 44 -- the latter agreements remain in effect "unless negotiated." Second, the sentence addressing agreements negotiated under Article 44 is an express exception to the sentence addressing Article 44 itself. In this regard, the sentence addressing agreements negotiated under Article 44 begins with "[h]owever," an unambiguous signal that it sets forth a different rule from the one preceding it.

Reading the two sentences with any care whatsoever shows that: (1) the first permits either party to unilaterally reopen Article 44 for the purpose of addressing prospective issues arising from rescission of Executive Order 12871 and a decision by the Respondent to no longer bargain over § 7106(b)(1) matters; and (2) the second indicates that such reopening does not affect agreements over § 7106(b)(1) matters that were reached under Article 44. As applied here, the Respondent was permitted unilaterally to reopen Article 44 but was not permitted unilaterally to terminate the MOUs, which the Judge found (and the majority and I agree) had been bargained under § 7106(b)(1). As such, Article 44 does not provide a defense to the Respondent's clear and patent breach of the MOUs.

In reaching a contrary conclusion, the majority ignores both the difference in wording between the two sentences (one vesting rights in "either party," the other not) and the fact that the second sentence is an express exception to the first. As such, the majority's interpretation flaunts the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts and, by extension, the Authority's [ v60 p854 ] established framework set forth in IRS. See, e.g., Elkouri & Elkouri, How Arbitration Works 493 (Marlin M. Volz & Edward P. Goggin eds., 5th ed. 1997) (general rule is to interpret agreement to give meaning to all of its parts).

The majority also ignores that IRS requires it to determine the meaning of Article 44. Indeed, the majority permits the Respondent to defend its actions on the basis of Article 44 without ever determining what Article 44 means. The majority concludes, in this regard, that the Respondent's interpretation of Article 44 as permitting it to reopen and terminate the MOUs is "reasonabl[e]." Majority Opinion at 16. However, the majority expressly finds that Article 44 is not clear on this point and refuses to determine whether the Respondent was in fact correct. See id. Thus, the majority excuses an alleged unfair labor practice on the basis of a contract provision it refuses to interpret.

Moreover, by applying a "reasonableness" standard to Article 44, the majority hopelessly confuses the standard for resolving a defense to a particular -- repudiation -- ULP with the standard for resolving general contractual defenses to all alleged ULPs. In so doing, the majority ignores that, while both defenses involve contract provisions, they operate in fundamentally different ways. In particular, when resolving a complaint alleging repudiation, the Authority determines, as relevant here, whether the respondent committed a clear and patent breach of the provision. See Dep't of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Ill., 51 FLRA 858, 862 (1996) (Scott AFB). In making that determination, the Authority finds no clear and patent breach where the respondent establishes the defense that it acted in accordance with a reasonable interpretation of the provision. See id. In resolving a general contractual defense, however, the Authority determines the actual meaning of the provision relied on; whether a particular interpretation is reasonable is not determinative. See IRS, 47 FLRA at 1103 (in adopting IRS analysis, Authority "reaffirm[ed its] rejection of the `differing and arguable interpretations' analysis[]"). Cf. Nat'l Naval Med. Ctr., 54 FLRA 1078, 1094-95 (1998) ("reasonableness" test for assessing compliance with arbitration award is not "analogous" to IRS analysis).

Here, the majority finds that the Respondent did not commit a clear and patent breach of the MOUs. See Majority Opinion at 16. However, the majority does not base this on a finding that the Respondent had a reasonable interpretation of the MOUs. Instead, the majority concludes that the Respondent did not commit a clear and patent breach of the MOUs because it had a reasonable interpretation of a different provision: Article 44 of the parties' agreement. See id. In so doing, the majority applies the repudiation standard to Article 44 even though the Respondent was never charged with repudiating Article 44; the complaint alleges -- only -- that the Respondent repudiated the two MOUs. See GC Ex. 1(c), ¶¶ 14-18. It also does so despite the fact that, as set forth above, it expressly finds that Article 44 is not clear on the relevant point and refuses to interpret the provision.

The majority also incorrectly holds that the MOUs are not enforceable because they are inconsistent with 5 C.F.R. § 610.121(a), which permits the adjustment of work schedules where the head of the agency determines that its functions would be "seriously handicapped" or its "costs would be substantially increased." The Respondent makes no such argument, however. In fact, the Respondent makes a different argument: it asserts that 5 C.F.R. § 610.121(b), which requires the scheduling of workweeks to correspond to the actual work requirements, grants it "the right to change the workweek of employees unilaterally[.]" Exceptions at 12. The Respondent's argument is easily resolved under Authority precedent. Where an agency enters into an agreement concerning employees tours of duty under § 7106(b)(1) of the Statute, as both the Judge and majority agree the Respondent did here, then that agreement corresponds to employee work requirements and is not inconsistent with 5 C.F.R. § 610.121(b). NAGE, Local R5-184, 51 FLRA 386, 398-99 (1995).

As for the issue the majority raises sua sponte --and not surprisingly finds persuasive -- neither the Charging Party nor the General Counsel had any opportunity to address whether the MOUs are consistent with 5 C.F.R. § 610.121(a). Thus, the argument is not properly before the Authority. [n2] I would not raise this issue, and I would deny the exception actually made by the Respondent. I also would deny the Respondent's remaining exceptions. Accordingly, I would conclude that the Respondent violated the Statute by repudiating the MOUs. I would also adopt the remedy directed by the Judge as consistent with the policy that remedies in ULP cases should restore, as far as possible, the status quo that would have obtained if the violation had not occurred. See United States Dep't of Justice, Fed. Bureau of Prisons, FCI Danbury, Danbury, Conn., 55 FLRA 201, 205 (1999) (Member Wasserman concurring in part and dissenting in part).

For the foregoing reasons, I dissent.

File 1: Authority's Decision in 60 FLRA No. 159

File 2: Opinion of Member Pope

File 3: ALJ's Decision

Footnote # 1 for
60
FLRA No. 159

• Opinion of Member Pope

In fact, the Respondent claims -- as an alternative to its arguments that the MOUs did not result from bargaining over
§ 7106(b)(1) matters and were terminable at will -- only that a "reasonable interpretation of Article 44 . . . is that the rescission of Executive Order 12871 allowed either party in this case to propose changes to § 7106(b) issues that were negotiated prior to the rescission date." Exceptions at 17 (emphasis added). Of course, parties are always free to propose changes. That is not the issue in this case, however. The issue here is whether, after a change is proposed and refused by the other party, it may be implemented unilaterally.

Footnote # 2 for
60
FLRA No. 159

• Opinion of Member Pope

I note that, although the GC claims that the Respondent has not to date demonstrated a right to change work schedules under
§ 610.121(a), the GC does not dispute the Respondent's right to do so in the future. See Opposition at 9-10.

Administrative law judge decision (official HTML attachment)

[ v60
p855 ]

Office of Administrative Law Judges

DEPARTMENT OF VETERANS AFFAIRS

CONSOLIDATED MAIL

OUTPATIENT PHARMACY

LEAVENWORTH, KANSAS

Respondent

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 85

Charging Party

Case No. DE-CA-02-0321

Michael Anfang, Esquire

For the Respondent

Steven B. Thoren, Esquire

Ayodele Labode, Esquire

For the General Counsel

Mr. Robert L. Lewis

For the Charging Party

Before: ELI NASH

Chief Administrative Law Judge [n1]

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., and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1 et seq., concerns whether Respondent repudiated the Memorandum of Understanding (MOU) of October 16, 2000, and/or the MOU of November 3, 2000, by implementing a six-day workweek that included Saturday as part of the regular tour of duty.

This case was initiated by a charge filed on March 13, 2002, which alleged violation of Section 7116(a)(1), (7) and (8) of the Statute; a First Amended charge filed on September 28, 2002, which also alleged violation of Section 7116(a)(1), (7) and (8) of the Statute; the Complaint and Notice of Hearing issued September 30, 2002, alleged violation only of Section 7116(a)(5) and (1) of the Statute; and set the hearing for February 25, 2003, at a place to be determined in Kansas City, Kansas.

A hearing was held in Leavenworth, Kansas. 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. Respondent and General Counsel each timely filed an excellent brief, which have been carefully considered.

On the basis of the entire record, I make the following findings and conclusions:

FINDINGS OF FACT

1. The American Federation of Government Employees, AFL-CIO, National Veterans Affairs Council of Locals (hereinafter, "AFGE") is the exclusive representative of a nationwide bargaining unit of employees of the Department of Veterans Affairs.

2. The American Federation of Government Employees, AFL-CIO, Local 85 (hereinafter, "Union") is an agent of AFGE for the purpose of representing employees at the Consolidated Mail Outpatient Pharmacy, Leavenworth, Kansas (hereinafter, "Respondent").

3. The Department of Veterans Affairs and AFGE are parties to a Master Agreement, effective March 21, 1997, for a period of three years (Jt. Exh. 9) (hereinafter, "Agreement"). Pursuant to the Agreement, it was automatically renewed in March 2000, in March 2001, and currently the parties are in the process of renegotiating the Agreement at the national level (Tr. 41).

4. Respondent provides pharmaceutical care, including pharmaceuticals such as capsules, tablets, liquid medicines and products used in providing healthcare to veterans in the Midwest and Northwest (Tr. 173). Respondent is one of seven Consolidated Mail Outpatient Pharmacies (hereinafter, CMOP) located throughout the country. Each CMOP is, essentially, a large factory that fills prescriptions written for veterans at VA Clinics and Medical Centers. Pharmaceuticals are delivered directly to the veteran's home (Tr. 47, 78). On a daily basis, prescriptions written at Veteran Affairs Medical Centers and clinics are electronically transferred to the CMOP to be filled (Tr. 49). Most of the prescriptions sent to CMOPs are refills for the ninety-day supply of medicine (Tr. 49, 64, 174). Each CMOP has the goal of filling approximately 80% of all medications [ v60
   p856 ] prescribed at VA medical facilities in the geographic area it serves (Tr. 64, 175). Currently, Respondent fills more than 73% of prescriptions written by the VA facilities in the area it serves. (Tr. 175).

5. The Union represents about 53 pharmacy technicians and housekeepers (Tr. 40). Pharmacy technicians are responsible for operating machinery that dispense pills into prescription bottles, and fill bottles of medicine, maintain inventories of pills and bottles, adhere labels to prescriptions, mail prescriptions, etc., (Tr. 78) and the housekeepers work in the bulk area (Tr. 79). There are packagers who are contract laborers represented by the Teamsters (id.) and professional employees, such as Pharmacists, are represented by NFFE (id.).

6. Respondent has a goal of a forty-eight hour turnaround time, i.e., a prescription should be filled and sent to the veteran within forty-eight hours of receipt of the prescription (Tr. 63, 64, 189). The number of prescriptions in the system waiting to be filled is called the queue (Tr. 25, 187). The queue is used by management to determine how many prescriptions the CMOP has in its system to be filled and to determine the hours the CMOP must operate to meet the demand (Tr. 188, 189).

7. Before November 2000, Respondent operated Monday through Saturday from either 6:00 a.m. to 6:30 p.m. or 7:00 a.m. to 6:00 p.m., with start times at either 6:30 a.m. or 9:30 a.m. (Tr. 20, 132). The schedule was considered one shift with two tours of duty (Tr. 132, 159, 160). Employees were scheduled to work a forty-hour workweek Monday through Saturday and were scheduled to work every other Saturday (Tr. 19).

8. In 2000 Respondent sought to add a second shift because Respondent was assuming responsibility from additional VA facilities, specifically incorporating Veterans Integrative Service Networks (the level of bureaucracy above the Medical Centers) (VISN), i.e., a number of VA Medical Centers make up a VISN (Tr. 173, 179, 180). The Union was told that if there were a second shift, the queue, ". . . would no longer matter because anything that we had in house would be covered by a second shift." (Tr. 80). Respondent gave the Union assurances that if the second shift were added, Saturdays could be eliminated as a regular work day and Respondent agreed to add a paragraph to the agreement eliminating Saturday hours as the regular tour of duty. The MOU was argued on October 16, 2000, and its effective date was November 5, 2000. The October 16, 2000 MOU provided as follows:

MEMORANDUM OF UNDERSTANDING

AFGE Local 85 and Consolidating Mail Outpatient Pharmacy (CMOP)

October 16, 2000

1. Effective November 5, 2000, CMOP will begin a second shift at the Leavenworth facility. AFGE and

Management recognize that the division of the two shifts depends upon the validation of the software,

hardware,
and workload. AFGE and Sheila Volski will meet within two weeks of the beginning of the

tour of duty to discuss
how things are proceeding, to include software, hardware, and workload.

Mr. Boneberg will be invited to
attend.

2. The second shift will operate from 3:30pm to midnight.

3. The first shift will operate from 6:30am to 3:00pm.

a. AFGE bargaining unit employees adversely impacted by the change in the first shift may

be allowed
to work 7:00am to 3:30pm. Management will give every consideration to

individual requests.

b. Adverse impact refers to family care responsibilities.

c. If there are more employees requesting 7:00am to 3:30pm tours of duty than

management can
accommodate those with the greatest Service Computation Date

(SCD) will receive priority.

4. A 4-week training tour of duty will operate from 10:30am to 7:00am.

a. Lead Technicians will be required to participate in the training tour of duty; a split tour

can be available.

b. Twelve (12) trainers per week will be needed.

c. Technician volunteers will be requested from existing staff to participate in the training

tour of duty.

d. Technician volunteers must volunteer for at least one consecutive week of training.

e. If there are more volunteers than needed those with the greatest SCD will be assigned

[ v60
p857 ]

f. Management will make every effort to be flexible with the training tour of duty in order to

accommodate
individual needs.

g. The Supervisory Pharmacy Technician will recommend equitable time-off awards for

volunteers no
later than one week after completion of the training tour of duty.

5. CMOP staff will be afforded the first opportunity to staff the second shift.

6. Vacancies on day or evening shifts will continue to be posted and filled according to past practice.

7. After implementation of the two separate shifts, Saturday will be eliminated from the regular tour of duty.

8. This MOU covers all AFGE Bargaining Unit Pharmacy
   Technicians

Jt. Exh. 2) (Emphasis supplied).

The October 16, 2000, MOU was signed by the parties but, does not contain an expiration date and makes no reference to the Agreement.

9. Before the effective date of the October 16, 2000, MOU, the parties negotiated a further MOU which addressed weekend work (overtime). The November 3, 2000, MOU provided as follows:

MEMORANDUM OF UNDERSTANDING

AFGE AND CMOP

WEEKEND WORK

11-3-00

In the spirit of cooperative Labor-Management relations, the American Federation of Government Employees, Local 85 (Union) and the Consolidated Mail Outpatient Pharmacy (Management) agree to the following regarding weekend work (overtime) for Pharmacy Technicians and Material Handlers/Housekeepers.

1. This MOU supercedes any and all previous written/verbal agreements concerning the scheduling of

bargaining
unit employees on Weekend work or Sunday work.

2. In the case of an emergency that has significant adverse effect on CMOP-Leavenworth, Management

will
meet with the union, prior to making a decision. Management will fully inform the union of the need

for weekend
work and discuss possible solutions. Management and the Union will normally meet at

8:00am Wednesday.

3. If the only solution is to work Saturday or Sunday, volunteers will be requested.

a. If there are more volunteers than needed the employees with the highest SCD will be

selected first.

b. If there are not sufficient volunteers, one shift or the other will be assigned.

c. Saturday or Sunday work will be rotated between the day and evening shift.

4. Employees who volunteer must volunteer for the entire shift.

5. Management will be flexible in allowing employees to switch Saturday or Sunday work with another

employee. The employee is responsible for ensuring that the shift they were assigned or volunteered

for is covered.

(Jt. Exh. 3).

The November 3, 2000, MOU was signed by the parties but, like the October 16, 2000, MOU, contains no expiration date and makes no reference to the Agreement.

10. Article 20, Section 3 - Tours of Duty/Scheduling, Paragraph I. of the Agreement provides, in material part, as follows:

Section 3 - Tours of Duty/Scheduling

. . .

I. Excessive use of overtime in any area will be evaluated by the Union and Management to review staffing options. . . . (Jt. Exh. 9, Art. 20, Sec. 3, Par. I., p. 66)

Article 44 of the Agreement - Mid-Term Bargaining -Section 1 - General and Section 4 - Local, provides in relevant part as follows:

ARTICLE 44--MID-TERM BARGAINING

Section 1 - General

A. The purpose of this Article is to establish a complete and orderly process to govern midterm negotiations at all levels. The parties are encouraged to use an interest-based bargaining approach in all midterm negotiations and will ensure that negotiators are trained in this approach prior to the inception of bargaining. [ v60 p858 ]

B. In accordance with Executive Order 12871, the Department will bargain on the numbers, types, grades of employees, and positions assigned to any organizational subdivision, work project, tour of duty, and the technology, methods, and means of performing work. Further, Management will not use 5 U.S.C. Section 7106(a) as a means of circumventing its 5 U.S.C. Section 7106(b)(1) bargaining obligations under this Agreement. In the event Executive Order 12871 is rescinded and the Department chooses not to bargain 5 U.S.C. Section 7106(b), either party may reopen this Article to address the 7106(b) issues. However, agreements reached during the effective term of this Master Agreement will remain in effect unless changes are negotiated. Both parties continue to retain their statutory rights. (Emphasis supplied).

.
. . .

D. As appropriate, the Union may initiate midterm bargaining at all levels on matters affecting the working conditions of bargaining unit employees.

. . .

Section 4 - Local

A. On all policies and directives or other changes for which the Department meets its bargaining obligation at the national level, appropriate local bargaining shall take place at individual facilities and may include substantive bargaining that does not conflict with negotiated national policy and agreements. Upon request, the Union will be briefed on the proposed subject prior to the demand to bargain.

B. Proposed changes in personnel policies, practices, or working conditions affecting the interests on one local Union shall require notice to the President of that local. . . .

C. Upon request, the parties will negotiate as appropriate. . . . (Jt. Exh. 9, Art. 44, Section 1 A, B and D; Section 4 A, B and C, pp. 172-173).

11. As the parties anticipated in Article 44, Section B of the Agreement, supra, Executive Order 12871 (Oct. 1, 1993) was, indeed, revoked by Executive Order 13203 (Feb. 17, 2001); however, Sec. 4 of E.O. 13203 specifically provides,

Sec. 4. Nothing in this order shall abrogate any collective bargaining agreements in effect on the date of this order [February 17, 2000] (E.O. 13203, Sec. 4).

12. The November 3, 2000, MOU (Jt. Exh. 3), was required to address how Saturday and Sunday work, if necessary, would be handled because, pursuant to the October 16, 2000, MOU (Jt. Exh. 2), Saturday was no longer part of the regular tour of duty (Tr. 26). Plainly, the November 3, 2000, MOU did not supercede the October 16, 2000, MOU (Tr. 85, 169) but, rather, supplemented the October 16, 2000, MOU by providing for overtime weekend workers if Saturday or Sunday work were required.

13. After the October 16 and November 3, 2000, MOUs were fully implemented, Respondent began operating the two shifts: the first shift 6:30 a.m. to 3:00 p.m.; and the second shift 3:00 p.m. to midnight, with the normal tour of duty Monday through Friday. Beginning in February 2001, Respondent determined it was necessary to operate on Saturday because of the growing queue (Tr. 193-194). In accordance with the November 3, 2000, MOU (Jt. Exh. 3), Respondent would seek volunteers for the weekend but when there were insufficient volunteers, Respondent would mandate weekend work (Tr. 28, 87, 137). Saturday was overtime work for which employees were paid time-and-a-half. During the year 2001, Respondent made 44 overtime weekend requests, 10 of which were mandated, i.e., insufficient volunteers were available (Tr. 42). At times, Respondent required both shifts to work on the weekend and, while the Union contended that this practice violated the November 3, 2000, MOU (Jt. Exh. 2), the Union did not protest the practice (Tr. 31, 32, 44). The Union expressed the employees' concerns about the increasing amount of overtime (Tr. 31-32).

14. On January 24, 2002, Ms. Sheila Volski, Supervisory Technician, sent the President of the Union, Debra McDougal, a memorandum stating as follows:

The workload at CMOP has continued to increase in the past six months. Recent projections from the CMOP- National Director's Office indicate that the workload will continue to increase throughout the CMOPs.

The existing schedule has not met the needs and increasing demands of the current work requirements. In order to expedite the medications to our veterans in a timely manner, we continue to schedule Saturday production, on an overtime [ v60 p859 ] basis. We have met with the union representative weekly to discuss any possible alternatives. The alternatives have been very limited and unable to meet the continuing demands. Therefore, we intend to return to the six-day workweek schedule, to include holiday scheduling on a fair and equitable basis.

We will have an informational meeting on Friday morning, January 25, 2002, at 11:00 a.m. in the CMOP conference room, and we encourage you to attend so we can hear and respond to your questions and concerns. In accordance with the Master Agreement, if you believe there are matters that you wish to negotiate prior to implementation of this decision, you may request to negotiate in accordance with the Labor Agreement. If no such request is received, the proposal will be implemented. If negotiations are requested, we want to schedule them as soon as possible. (Jt. Exh. 4).

15. The Union, by Ms. McDougal, responded the same day, January 24, 2002, and stated, in part, as follows:

This is in reference to your memo dated 1-24-02 regarding renegotiating the Saturday and Holiday tour of duty at CMOP, 5000 Leavenworth. Local 85 has no intentions [sic] of reopening these negotiations. We have a signed MOU which does not have a reopening clause.

. . .

At the time of the original negotiation you were insistent that the queue was not a concern. You included in the original MOU that Saturdays would no longer be a scheduled work day. CMOP 5000 intentionally mislead the Union and bargaining unit to obtain what you wanted. CMOP 5000 is now trying to force the bargaining unit back to the original old work schedule, plus a second shift. Local 85 demands that you cancel the meeting scheduled for Friday the 25th of January. Cease and desist the implementation of the proposed tour change. (Jt. Exh. 5).

16. Ms. Volski by memorandum dated March 5, 2002, notified Ms. McDougal as follows:

As of the week of March 24, 2002, CMOP will return to a six-day, 40 hour work week schedule. This is in reference to the information given to AFGE on January 24th and 25th.

Through our previous MOU, the holiday scheduling was moved from the holiday to the weekend after the holiday (post-scheduling). With the implementation of Saturday scheduling, Saturday will no longer be an option in the post-scheduling. Therefore, we plan to move the scheduling of the holiday work back to the actual holiday. If you plan to negotiate prior to implementation of this scheduling, please notify me as to your availability. If negotiations are requested, we want to schedule them as soon as possible. (Jt. Exh. 6).

17. Ms. McDougal responded by memorandum dated March 6, 2002, and stated as follows:

This is in reference to your memo dated March 5,2002. The subject matter concerned the scheduling of Saturdays and Holidays at CMOP 5000.

In the union's memo dated January 24,2002 Local 85 stated there are no reopening clauses in any of the affected MOUS and, the union was not reopening the negotiations over these issues. Local 85 stands firm with that decision. We will be willing to meet with Agency and discuss any alternate solutions to control the number of outstanding prescriptions at CMOP 5000.

At this time we are once again denying your request to reopen these negotiations, and are demanding you cease and desist the implementation of your proposed scheduling changes.

The Saturday and Holiday scheduling is covered by following agreed upon and signed MOUS, (Holiday Work 11-19-00), (Weekend Work 11-3-00), and (2nd Shift 10-16-00).

The 2nd Shift October 16,2000 MOU states Saturdays will be eliminated from the regular tour of duty.

The Weekend Work November 3,2000 MOU states Saturday to be volunteers, if mandated the day or evening shift will be scheduled.

The Holiday Work November 9, 2000 states if post holiday workload is such that it is necessary to work extra hours, it will be scheduled for the Saturday following the holiday and will be rotated between day and evening shift.

These MOUS are very clear in their intent and Agency agreed and gave them their blessings [ v60 p860 ] when they signed them. Agency received their second shift and Labor received their Saturdays off.

If Agency persist[s] in implementing these scheduling changes, they will be guilty of repudiating all (3) three MOUs. The perception of this action can only be that Agency bargained in bad faith and have had no intention of honoring these MOUS. (Jt. Exh. 7).

18. By memorandum dated March 12, 2002, Mr. Jerel Devor, Labor Relations Specialist, advised the President of the Union, Ms. McDougal, as follows:

19. This is in response to your memorandum received on March 8, 2002 [Ms. McDougal's memorandum

of
March 6, 2002 (Jt. Exh. 7)], declaring that AFGE Local 85 `stands firm' on its decision to not

negotiate CMOP
management's proposal to return to a 6-day workweek schedule. Your

memorandum clearly indicates that you
believe previously negotiated MOUs should remain in force

and that management does not have the right to
present new proposals without approval of AFGE

Local 85.

2. Management asserts that determination of the operational workweek is its protected right under the

Labor
Statute. It is an inherent part of determining the mission and number of employees necessary to

accomplish the
mission. This includes making changes from established workweek schedules when the

mission requires, and
the MOUs currently in effect do not restrict management from making such

changes. Management has not and
will not `bargain away' that right. At the same time, management

recognizes its obligation to provide opportunity
to AFGE Local 85 to bargain over the procedures and

arrange-ments/impact and implementation of work
schedules. CMOP management has consistently

provided that opportunity whenever it has identified the need
for a change in work schedules, as

evidenced by the MOUs currently in effect. You received notice on
January 24, 2002, that CMOP

was proposing to return to the 6-day workweek schedule, and you were given the opportunity to

bargain. You responded in writing on January 24, 2002, and again on March 8, 2002, that you would

not negotiate.

3. Management believes that it has met its obligation under the Labor Statute to provide opportunity to

negotiate.
Therefore, the proposed 6-day workweek schedule will be implemented. (Jt. Exh. 8)

19. Whether the January 25 meeting took place is disputed. While a meeting might have been held on that date with other unions (Tr. 145) (Teamsters and/or NFFE) I credit Mr. Lewis' testimony that he did not attend any meeting on January 25, 2002, nor did anyone else on behalf of the Union (Tr. 88, 204).

20. On March 24, 2002, Respondent implemented the six-day workweek schedule. Thereafter, employees were scheduled to work every other Saturday. Every two weeks, they would have two consecutive days off on Saturday and Sunday. In the six-day workweek, employees work 40 hours but because Saturday is a regular part of the workweek, employees no longer receive time-and-a-half for Saturday work (Tr. 98-101).

CONCLUSIONS

The standard for determining whether a repudiation violation has occurred is well settled. Department of the Air Force, 375 Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA 858 (1996) (Scott AFB); Department of Defense Dependent Schools, 50 FLRA 424 (1995). In analyzing a repudiation issue the Authority looks to two elements: (1) the nature and scope of the alleged breach; and (2) the nature of the agreement provision allegedly breached. Examination of either element may involve an inquiry into the meaning of the agreement provision allegedly breached. In order to establish the first element it must be shown that the respondent's action constitutes "a clear and patent breach of the terms of the agreement. (Scott AFB) The second element is satisfied when it is shown that the nature of the clear and patent breach goes to the heart of the agreement. In evaluating the second element, the focus of the analysis is on the importance of the particular provision allegedly to be breached relative to the agreement in which it is contained. Department of Justice, Federal Bureau of Prisons, Metropolitan Correction Center, Chicago, Illinois, CH-CA-01-0127, ALJ Decision 02-53 (August 1, 2002).

A. The alleged breach.

Paragraph seven of the October 16, 2000 MOU states that after implementation of two separate shifts, Saturday will be eliminated from the regular tour of duty. Prior to entering this MOU, employees at the CMOP worked a six-day workweek that included Saturdays. In exchange for adding the second shift at the CMOP Respondent agreed to eliminate Saturday from [ v60 p861 ] the regular tour of duty-which was the quid pro quo for the agreement. Thereafter, the parties abided by the MOU for over a year demonstrating that the terms of the MOU were understood by both sides. On March 24, 2002, however, Respondent implemented a six-day workweek requiring employees to work on Saturdays despite having agreed in the October 16 MOU that Saturday would be eliminated as a regular tour of duty. This implementation, in my view, constituted a clear and patent breach of the October 16 MOU. Thus, the initial element in Scott AFB has been satisfied.

The November 3, 2000 MOU concerned procedures to be followed when the CMOP determined that it must operate on the weekend. Where management determined that the CMOP had to operate on the weekend, the MOU provided a procedure to request and select volunteers to work that weekend. Paragraph three of the MOU provided that in the event CMOP must be operated on Saturday or Sunday and where there were insufficient volunteers, management could mandate either day or evening shifts to work on the weekend.

The record reveals that prior to the two MOUs involved herein, CMOP employees worked a six-day week that included Saturdays as a regular tour of duty. In accordance with the October 16 MOU, a second shift was added and fully trained and that shift worked a forty-hour week, Monday through Friday. Sometime in February 2001, management determined that it might be necessary to operate on Saturday or Sunday. Respondent did meet with the Union prior to making a decision to operate. However, when it could not get sufficient volunteers Respondent mandated employees to work and paid them overtime.

After March 24, 2002, when Respondent implemented a six-day workweek, Saturday again became a part of employees' regular tour of duty. Respondent thus ceased meeting with the Union prior to determining that the CMOP would operate on Saturday and no longer sought volunteers to work on the weekend. These actions are clearly inconsistent with the November 3, 2000 MOU and constitute, in my opinion, a clear and patent breach of that agreement.

B. The nature of the breach.

With regard to the second element found in Scott AFB, that the clear and patent breach goes to the heart of the agreement, it appears that this element has been satisfied as well. The record reveals that the elimination of Saturdays from the regular tour of duty, from the Union's point of view, was the core of the October 16, 2000 agreement. The record fully supports a finding that the Union and the employees viewed the elimination of Saturdays from the regular tour of duty as the essential ingredient of the agreement. Since the heart of an agreement is determined by the "paramount concern to the employees," it is concluded that the second element of Scott AFB is satisfied with respect to the October 16, 2000 MOU.

The record also shows that the MOU of November 3, 2000 was concerned solely with weekend work; the process of determining if the CMOP would operate on the weekend and the selection of volunteers to work the weekend. The November 3 MOU addressed how volunteers would be selected to work the weekend and the procedure to be followed in the event an insufficient number of employees volunteered to work. The record shows how employees would be selected to work on the weekend and procedures to be followed indeed were of "paramount concern to employees." It is therefore, found that the action of Respondent in implementing the six-day workweek which included Saturdays, and its failure to seek volunteers to work weekends, goes to the heart of the agreement and, thereby, constituted a violation of section 7116(a)(1) and (5) of the Statute.

C. Were the October 16, 2000 and November 3, 2000 MOUs terminable at will?

At the hearing the ALJ raised an issue as to whether the MOUs were terminable at will. In this regard, the ALJ raised the applicability of Department of the Navy, Naval Air Station, Pensacola, Florida and American Federation of Government Employees, Local 1960, (NAS Pensacola), Case No. AT-CA-00890, OALJ 02-42 (May 24, 2002), ALJ Dec. Rep. No. 169 (August 21, 2002), in that case the ALJ held that,

. . . Review of the language of the MOU itself . . . reveals two significant facts: 1) the MOU contains no statement regarding its duration; and 2) nothing in the MOU ties it to the Agreement. Further, nothing in the Agreement addresses the relationship of MOUs to the Agreement. Without a link to the Agreement or a statement regarding duration, the guidance for the proper duration of the MOU is common law. See Ellis Tacke, d/b/a Ellis Tacke Co., 229 NLRB 1296, 1302 (1977). Because the 1995 MOU lacks a definite duration, it will be construed as "terminable at will." Id. (Slip opinion, p. 10).

While acknowledging the correctness of this holding, I nonetheless agree with the General Counsel that this case can be distinguished. Unlike NAS Pensacola, [ v60 p862 ] the MOUs herein are tied to the Agreement and they remain in effect during the effective term of the Agreement unless changes are negotiated. The MOUs of October 16 and November 3, 2000 (Jt. Exhs. 2 and 3) were negotiated pursuant to Article 44 of the Agreement (Jt. Exh. 9), ". . . process to govern midterm negotiations at all levels." (Section 1-A); "As appropriate, the Union may initiate midterm bargaining at all levels on matters affecting the working conditions of bargaining unit employees." (Section 1 D); ". . . appropriate local bargaining shall take place at individual facilities and may include substantive bargaining that does not conflict with negotiated national policy and agreements. . . ." (Section 4 A). Further, the October 16, 2000, MOU (Jt. Exh. 2) was negotiated in accordance with E.O. 12871 as provided in Article 44, Section 1 B, which provision states that if E.O. 12871 is rescinded, nevertheless, ". . . agreements reached during the effective term of this Master Agreement will remain in effect unless changes are negotiated. . . ." (Jt. Exh. 9, Art. 44, Section 1 B). This language, I interpret to mean, that agreements reached (i.e. MOUs) during the effective term of the Agreement, remain in effect for the duration of the Agreement unless changes are negotiated. The Term of the Agreement was automatically renewed in March 2000, and in March 2001, i.e. at least to March 21, 2002, and because renegotiation of the Agreement is in progress (Tr. 41), the Agreement will automatically extend until a new agreement is negotiated (Jt. Exh. 9, Article 61 -Duration of Agreement, Section 2, p. 197). Although, E.O. 12871 was revoked by E.O. 13203 on February 17, 2001, E.O. 13203 provides that,

Sec. 4. Nothing in this order shall abrogate any collective bargaining agreements in effect on the date of this order (E.O. 13203, Sec. 4).

Furthermore, each MOU herein was in effect on the date of E.O. 13203; and each was a negotiated collective bargaining agreement. Accordingly, by the terms of Article 44, Section 1 B, of the Agreement, both the MOU of October 16, 2000, and the MOU of November 3, 2000, remained in effect for the term of the Agreement unless changes are negotiated, and, according to E.O. 13203, nothing therein shall abrogate any collective bargaining agreement in effect on the date of E.O. 13203 [February 17, 2001].

When the workload showed evidence of a problem, in late 2001, Respondent could have terminated the Agreement. Respondent did not and the Agreement thus automatically renewed itself with the renegotiation of the Agreement. Article 44 Section 1 B of the Agreement gave the MOUs a duration, namely, for the term of the Agreement, unless changes are negotiated. Neither MOU has any reopening provision and when Respondent on January 24, 2002, proposed to return to the six-day workweek schedule, the Union emphatically refused to renegotiate the MOUs (Jt. Exh. 5), a position it reaffirmed on March 6, 2002 (Jt. Exh. 7). The Union was under no obligation to negotiate changes in the MOU because those agreements remained in effect for the term of the Agreement. On March 6, 2002, the Union stated,

We will be willing to meet with Agency and discuss any alternate solutions to control the number of outstanding prescriptions. . . . (Jt. Exh. 7),

but, Respondent refused the Union's offer and on March 24, 2002, implemented the six-day workweek schedule.

Based on the foregoing, it is found that Respondent repudiated each MOU and, thereby, violated section 7116(a) (5) and (1) of the Statute.

I also agree with the relief sought by General Counsel, namely, requiring Respondent to comply with the October 16, 2000, and November 3, 2000, MOUs; return to a Monday through Friday tour of duty; and eliminate Saturday from the workweek.

Having found that Respondent violated section 7116(a) (5) and (1) of the Statute, it is recommended that the Authority adopt the following:

ORDER

Pursuant to § 2423.41(c) of the Rules and Regulations of the Federal Labor Relations Authority, 5 C.F.R. § 2423.41(c), and § 18 of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7118, the Department of Veterans Affairs, Consolidated Mail Outpatient Pharmacy, Leavenworth, Kansas, shall:

1. Cease and desist from:

(a) Failing and refusing to comply with the October 16, 2000, and November 3, 2000, Memoranda of Understanding with the American Federation of Government Employees, Local 85, the exclusive representative of certain of its employees, with respect to the elimination of Saturday from the regular tour of duty.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. [ v60 p863 ]

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

(a) Comply with the October 16, 2000, and November 3, 2000, Memoranda of Understanding with the American Federation of Government Employees, Local 85, the exclusive representative of certain of its employees by eliminating Saturday from the regular tour of duty as required by the Memoranda of Understanding.

(b) Upon request of American Federation of Government Employees, Local 85, reinstate the shift scheduling procedures as they had been established under agreements dated October 16 and November 3, 2000.

(c) Post at its facilities at the Department of Veterans Affairs, Consolidated Mail Outpatient Pharmacy, Leavenworth, Kansas, 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 Director, Consolidated Mail Outpatient Pharmacy, Leavenworth, Kansas, 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 Rules and Regulations, 5 C.F.R. § 2423.41(e) notify the Regional Director of the Denver Region, Federal Labor Relations Authority, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, in writing within 30 days of the date of this Order, as to what steps have been taken to comply.

Issued, April 19, 2004, Washington, DC

______

ELI NASH

Chief Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of Veterans Affairs, Consolidated Mail Outpatient Pharmacy, Leavenworth, Kansas, 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 and refuse to comply with the Memorandum of Agreements entered into by the Consolidated Mail Outpatient Pharmacy and the American Federation of Government Employees, Local 85, the employees' exclusive representative on October 16 and November 3, 2000, by scheduling employees to work on Saturdays, contrary to the terms of those Agreements.

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

WE WILL comply with the October 16 and November 3, 2000, Memoranda of Understanding with the American Federation of Government Employees, Local 85, the exclusive representative of certain of our employees by eliminating Saturday from the regular tour of duty as required by the Memoranda of Understanding.

WE WILL return to a Monday through Friday tour of duty.

WE WILL, upon request of American Federation of Government Employees, Local 85, reinstate the shift scheduling procedures as they had been established under agreements dated October 16 and November 3, 2000.

______

(Agency)

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, Denver Region, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, and whose telephone number is: 303-844-5224.

File 1: Authority's Decision in 60 FLRA No. 159

File 2: Opinion of Member Pope

File 3: ALJ's Decision

Footnote # 1 for
60
FLRA No. 159

• ALJ's Decision

The Administrative Law Judge who conducted the hearing subsequently became unavailable to issue a decision. The parties were advised of this fact and were offered the opportunity to request a new hearing. Each party has waived the right to a new hearing, and I have made my decision herein based on the complete record.