On Petition for Review of an Order of the Federal Labor Relations Authority
Before: Edwards, Sentelle, and Tatel, Circuit Judges.
The opinion of the court was delivered by: Tatel, Circuit Judge
This case involves a collective bargaining agreement that gives a union ten days after receiving notice of a change in working conditions to request bargaining. Although the union failed to request bargaining within ten days of when the employer first notified it about the closure of an employee child-care center, the union did request bargaining within ten days of receiving a subsequent notice stating that the center would in fact close several years later than indicated in the earlier notice. The Federal Labor Relations Authority ruled that the union waived its right to bargain over the closure by failing to request bargaining within ten days of receiving the first notice. But because under Authority precedent unions must receive adequate notice of a proposed change -- including the planned timing of the change -- before they have any obligation to request bargaining, we conclude that the revised timing information in the second notice gave the union a new opportunity to request bargaining. We therefore grant the union's petition for review.
Petitioner, Local 1442 of the National Federation of Federal Employees, represents non-professional employees at the U.S. Army's Letterkenny Depot in Chambersburg, Pennsylvania. For years, the depot provided child-care services for both military and civilian employees. Union members not only sent their children to the depot's three child-care centers, but also worked there.
In April 1997, the depot's director of personnel and community activities sent a handwritten note to the union president, as well as to the presidents of three other unions that represent depot employees, regarding a decision by the Base Realignment and Closure Commission (BRAC) to transfer many of the depot's activities elsewhere. The note attached a list of "morale, welfare, and recreation activities" that the depot expected to discontinue because of the BRAC transfer -- a list that included the three child-care centers -- along with a projected time frame for the discontinuation of each. The projected time frame for the three centers was "September 1998/March 1999."
Although the union and the depot had a collective bargaining agreement that gave the union ten days after receiving notice of a change in working conditions to request bargaining, the union did not invoke this right after receiving the handwritten note. Instead, it submitted the child-care issue to the Labor-Management Partnership Council, a group composed of representatives from management and the four depot unions. The Council "provide[s] a forum for labor and management representatives to come together in full partnership to discuss issues critical to the depot [and] to make decisions on those issues." Pet'r's Br. at 4 (internal quotation marks omitted).
In February 1999, with the child-care issue still on the Council's agenda, the depot announced that the Child Development Center (CDC), encompassing the depot's two childcare programs for pre-school children, would remain open until June of that year. It also announced that the School Age Services program (SAS), the third center and the one at issue in this case, would remain open until the end of August. After the CDC closed in June, the union filed an unfair labor charge, but the FLRA regional director declined to issue a complaint, in part because he concluded that the union's failure to request negotiations within ten days of the 1997 handwritten note -- or, at the latest, within ten days of the depot's February 1999 announcement -- waived the union's right to bargain under the collective bargaining agreement.
Meanwhile, the SAS remained open long after August 1999. In January 2001, the depot notified the four union presidents that the SAS would close on August 31 of that year. Less than ten days later the union requested bargaining over the closure, a request the depot initially agreed to. At their first bargaining session, management and the union reached agreement on four of the union's five proposals. The fifth proposal remained unresolved, however, even after the two sides were joined at a second session by a federal mediator.
A further session with the mediator was scheduled but then canceled when the depot took the position that it actually had no obligation to bargain with the union regarding the closure of the SAS. Adopting the reasoning that the FLRA regional director had offered in declining to issue a complaint about the CDC closure, the depot contended that by failing to request bargaining within ten days of the 1997 handwritten note, the union waived its right to negotiate over the SAS closure.
The union filed an unfair labor practice charge, but following a hearing an administrative law judge rejected the charge, accepting the depot's view that by failing to request bargaining in 1997 within the time period specified by the parties' collective bargaining agreement, the union waived its right to bargain over the SAS closure. (Although the Federal Labor Relations Act does not include a ten-day limitations period, Authority precedent, unchallenged by the union, recognizes contractual limitations periods when evaluating the timeliness of bargaining requests. See, e.g., Dep't of the Air Force Materiel Command, Wright-Patterson Air Force Base, 51 F.L.R.A. 1532, 1536 (1996).) Over a dissent, the Authority affirmed. We now consider the union's petition for review, mindful that "the Authority's decision may only be set aside if it is ... `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' " Ass'n of Civilian Technicians, Tex. Lone Star Chapter 100 v. FLRA, 250 F.3d 778, 782 (D.C. Cir. 2001) (quoting 5 U.S.C. § 706(2)(A) (2000)).
The union first argues that its failure to request bargaining within ten days of receiving the 1997 handwritten note did not amount to a waiver of its bargaining rights because it submitted the child-care issue to the Labor-Management Partnership Council. The union points out that the collective bargaining agreement nowhere requires the union to submit issues to the Council within ten days (or any other time period) and that the Council's by-laws provide that an issue can be withdrawn from the Council if the parties are unable to resolve it through the Council process, at which point the issue "would revert to normal collective bargaining procedures." Pet'r's Br. at ...