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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 13, 2004 Decided May 28, 2004
No. 03-1277
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
FD–1, IAMAW, LOCAL 1442,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of an Order of the
Federal Labor Relations Authority
Susan Tsui Grundmann argued the cause for petitioner.
With her on the briefs was Richard J. Hirn.
David M. Shewchuk, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
brief were David M. Smith, Solicitor, and William R. Tobey,
Deputy Solicitor.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS, SENTELLE, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: This case involves a collective bar-
gaining agreement that gives a union ten days after receiving
notice of a change in working conditions to request bargain-
ing. 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 re-
quest 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 bar-
gaining, 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.
I.
Petitioner, Local 1442 of the National Federation of Feder-
al Employees, represents non-professional employees at the
U.S. Army’s Letterkenny Depot in Chambersburg, Pennsyl-
vania. 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 cen-
ters, but also worked there.
In April 1997, the depot’s director of personnel and commu-
nity 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 trans-
3
fer—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 ‘‘Septem-
ber 1998/March 1999.’’
Although the union and the depot had a collective bargain-
ing agreement that gave the union ten days after receiving
notice of a change in working conditions to request bargain-
ing, 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 com-
posed 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 partner-
ship 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 Devel-
opment Center (CDC), encompassing the depot’s two child-
care 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.
4
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 follow-
ing 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 Feder-
al Labor Relations Act does not include a ten-day limitations
period, Authority precedent, unchallenged by the union, rec-
ognizes 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 TTT ‘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)).
II.
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 submit-
ted the child-care issue to the Labor–Management Partner-
ship Council. The union points out that the collective bar-
gaining 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
5
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 proce-
dures.’’ Pet’r’s Br. at 22. Noting that neither side ever
withdrew the SAS issue from the Council, the union asserts
that it cannot be deemed to have waived the right to bargain
over that issue.
The problem with this argument, as the Authority’s rejec-
tion of it suggests, is that it ignores the collective bargaining
agreement’s ten-day limitations period. The agreement
plainly states that if the union fails to request bargaining
within ten days, ‘‘negotiations are waived on the specific
change(s) or implementation.’’ Nothing in the agreement
indicates that submitting an issue to the Council tolls the ten-
day period. Indeed, if by submitting an issue to the Council
at any time the union could revive its right to bargain over
that issue after failing to seek negotiations within ten days,
then the ten-day period would be meaningless. The section
of the collective bargaining agreement providing that issues
withdrawn from the Council revert to normal collective bar-
gaining procedures merely ensures that the union will not
forfeit bargaining rights that it has preserved. In other
words, if the union requests bargaining over an issue within
the ten-day period, then a subsequent decision to submit that
issue to the Council does not constitute a waiver of its
bargaining rights. The collective bargaining agreement sim-
ply freezes the collective bargaining situation for as long as
the parties attempt to address an issue in the Council. We
thus reject the union’s assertion that its submission of the
child-care issue to the Council revived the bargaining rights
that it waived by failing to request negotiations within ten
days of receiving the handwritten note.
More meritorious is the union’s alternative argument that
the depot’s 2001 notice gave the union a new ten-day window
in which to request bargaining over the SAS closure. The
Authority rejected this argument, noting that ‘‘neither the
delay in closure nor the exploration of alternatives to closure
could reasonably be construed as a recission of the [1997]
decision to terminate the SAS program.’’ U.S. Dep’t of the
6
Army, Letterkenny Army Depot, 58 F.L.R.A. No. 166, 2003
WL 21690708, at *2 (July 14, 2003). Moreover, the Authority
said, ‘‘[i]f delaying an adverse event for employees gave rise
to new bargaining obligations by virtue of the passage of
time, an employer would be deterred from attempting to
reduce the impact of an adverse event through delayed
implementation.’’ Id.
We are unable to reconcile the Authority’s reasoning with
its own case law. Authority precedent provides that before
unions have any obligation to request bargaining over pro-
posed changes, they must receive adequate notice of the
changes. See, e.g., U.S. Penitentiary, Leavenworth, Kan., 55
F.L.R.A. 704, 715 (1999) (‘‘Adequate notice of a proposed
change in conditions of employment triggers the exclusive
representative’s responsibility to request bargaining over the
change.’’). To be adequate, ‘‘[n]otice TTT must be sufficiently
specific and definitive to TTT provide the exclusive representa-
tive with a reasonable opportunity to request bargaining.
For example, the notice must apprise the exclusive represen-
tative of the TTT planned timing of the change.’’ U.S. Army
Corps of Eng’rs, Memphis Dist., 53 F.L.R.A. 79, 82 (1997)
(citation omitted). Notices that omit the timing of a change
are therefore inadequate. See, e.g., Ogden Air Logistics Ctr.,
Hill Air Force Base, 41 F.L.R.A. 690, 698 (1991) (finding a
notice inadequate because ‘‘it did not specify either the num-
ber of employees to be placed in a nonpay status or the
expected date of the actions’’); U.S. Patent & Trademark
Office, 2001 WL 1035062, at **42, (FLRA May 24, 2001)
(‘‘PTO’s TTT notice was not adequate as it did not state or
otherwise indicate when hiring and/or implementation of the
plan or payments of the recruitment bonuses would be of-
fered or commenced.’’). We see no basis for reaching a
different result where, as here, the timing of a change
deviates significantly from what appears in a notice. Either
way, the union lacks accurate information about the timing of
the change as actually implemented and may therefore be
unable to make an informed decision about whether to re-
quest bargaining over the change.
Although the Authority neither explained why it viewed
this case differently than those in which notices omit timing
7
information nor even acknowledged its own case law requir-
ing that notices provide such information, its short opinion did
cite with evident approval the ALJ’s statement that ‘‘there
was nothing in the Union’s January 2001 proposals that could
not also have [been] submitted in April 1997, when it first
learned of the SAS closure.’’ Letterkenny, 2003 WL
21690708, at *2. That statement is incorrect. In 1999, after
the union received the handwritten notice, Congress author-
ized federal agencies to use funds appropriated for salaries to
lower the cost of employee child care. See Pub. L. No. 106–
58, § 643(a), 113 Stat. 430, 477 (1999). Agencies could do this
by, for example, providing tuition assistance to children at-
tending private child-care facilities. See 5 C.F.R. § 792.218
(2004) (‘‘The bill includes non-Federal center-based child care
as well as care in family child care homesTTTT’’). One of the
five proposals the union submitted for bargaining in 2001
related to such tuition assistance. Indeed, the two sides were
still negotiating over just this proposal when the depot with-
drew from negotiations. The Authority’s ruling thus rests on
a factual inaccuracy, i.e., that ‘‘there was nothing in the
Union’s January 2001 proposals that could not also have
[been] submitted in April 1997.’’ In fact, as the union points
out, the ruling required it to do the impossible: ‘‘to have
presented its proposal on childcare tuition assistance prior to
the time government-wide regulations authorized agencies to
use appropriated funds for this purpose.’’ Pet’r’s Br. at 23.
The intervening change in law not only undermines the
Authority’s reasoning but also distinguishes this case from
Department of the Treasury, Internal Revenue Service, 20
F.L.R.A. 403 (1985), on which the Authority relies. In IRS,
the Authority held that a two-year delay in the implementa-
tion of a proposed change created no new bargaining obli-
gation because ‘‘the nature and degree of the impact of the
change in 1983 did not differ from the impact that was
foreseeable when Respondent developed its plan in 1981.’’
Id. at 406, quoted in Resp’t’s Br. at 22. But here, contrary to
the Authority’s contention, the new law did affect the impact
of the SAS closure. Specifically, the law gave the depot a
new way to mitigate the loss of child-care services, i.e.,
8
offering tuition assistance to employees who moved their
children from the closed SAS facility into private child-care
programs, and thus provided the union with a reason to
request bargaining—a reason it lacked in 1997. IRS there-
fore provides no support for the Authority’s decision.
The Authority also reasoned that a contrary ruling would
encourage employers to implement changes sooner rather
than later even if delayed implementation was possible and
could benefit employees. An employer would do this, the
Authority explained, because if it had previously notified the
union about a proposed change and discharged any obligation
it had to bargain over the change (either because the two
sides finished bargaining or because the union waived its
bargaining rights), then delaying implementation would force
it to take on new bargaining obligations. This reasoning
suffers from two defects.
First, and most important, it runs counter to Authority
cases holding that notices are inadequate unless they include
information about the planned timing of a proposed change.
See supra pages 6–7. If employers can alter the timing of
proposed changes long after providing notice, then the re-
quirement that notices include timing information is weak-
ened if not eliminated. To be sure, the Authority may depart
from its precedent, but as we have explained, ‘‘[a]n agency
changing its course must supply a reasoned analysis indicat-
ing that prior policies and standards are being deliberately
changed, not casually ignored.’’ Nat’l Rural Elec. Coop.
Ass’n v. SEC, 276 F.3d 609, 615 (D.C. Cir. 2002) (quoting
Greater Boston Tel. Corp. v. FCC, 444 F.2d 841, 852 (D.C.
Cir. 1970)) (internal quotation marks omitted). The Authori-
ty failed to do so in this case.
Second, the Authority overlooks that an employer having
no further obligation to bargain over a change can inform the
union that it will delay implementation of the change only in
exchange for the union’s agreement that the delay will give
rise to no new bargaining obligations. A union may, of
course, reject such an offer and instead wait to see whether
the employer will delay implementation irrespective of the
9
union’s willingness to waive new bargaining rights. The point
is simply this: what the Authority calls ‘‘sound policy rea-
sons’’ for its decision, Resp’t’s Br. at 21–22, are unpersuasive
because a contrary decision would in fact not force employers
to choose between taking on new bargaining obligations and
implementing a proposed change sooner rather than later.
In sum, we conclude that the depot had an obligation to
negotiate with the union over the 2001 closure of the SAS.
Although the union waived its right to bargain over the
‘‘September 1998/March 1999’’ closure that the handwritten
note announced, that waiver did not forfeit the union’s right
to bargain over a closure that occurred several years after the
proposed time frame contained in the note.
III.
Congress passed the Federal Labor Relations Act to en-
courage collective bargaining between federal employees and
their employers. It did so after finding that such bargaining
is ‘‘in the public interest’’ because, among other things, it
‘‘contributes to the effective conduct of public business’’ and
‘‘facilitates and encourages the amicable settlements of dis-
putes between employees and their employers involving con-
ditions of employment.’’ 5 U.S.C. § 7101(a) (2000). While
the Act imposes obligations as well as benefits on federal
employees, obligations with which the Authority must ensure
compliance, we believe the Authority’s reasoning in this case
reflects an inappropriate willingness to erect barriers to
collective bargaining that are inconsistent with the text and
purposes of the statute. Thwarting Congress’s intent to
promote collective bargaining, such barriers are not ‘‘in the
public interest’’ because they hamper realization of the bene-
fits that such bargaining produces.
The petition for review is granted and the case is remanded
to the Authority for further proceedings consistent with this
opinion.
So ordered.