20:0516(63)CA - Defense General Supply Center, Richmond, Virginia and AFGE Local 2047 -- 1985 FLRAdec CA
[ v20 p516 ]
20:0516(63)CA
The decision of the Authority follows:
20 FLRA No. 63 DEFENSE GENERAL SUPPLY CENTER RICHMOND, VIRGINIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2047, AFL-CIO Charging Party Case No. 34-CA-30226 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, based on a stipulated record, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety. Thereafter, the Charging Party filed exceptions to the Judge's Decision and the Respondent filed an opposition. /1/ Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), as amended, the Authority has considered the Judge's Decision and the entire record, and hereby adopts the Judge's findings, conclusions and recommended Order, as modified herein. The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate with the American Federation of Government Employees, Local 2047, AFL-CIO, concerning the introduction of flexitime for bargaining unit employees in one of the Respondent's subdivisions. The Judge recommended dismissal of the complaint on the basis that issues raised therein involved questions of contract interpretation. The Authority agrees with the Judge's conclusion that the complaint should be dismissed. In so concluding, the Authority notes that the Master Agreement (MA) binding on the parties herein provides that all local labor-management agreements not in conflict with the MA remain in effect until a supplementary agreement has been negotiated. The record indicates that, as a result of the findings and recommendations of an ad hoc committee, which included Union representatives, a flexitime policy was established at the Respondent's facility which has been in effect since May 11, 1976. This policy provides that "Directors/Major Office Chiefs will . . . determine what positions will not participate in flexitime." The record further shows that the flexitime policy is incorporated into the parties' local collective bargaining agreement. The record fails to establish that this agreement is in conflict with the MA. In this regard, although the MA authorizes local negotiations over the installation of flexitime, as noted, the MA also provides that the parties' local agreement, which incorporates the current flexitime policy, remains in effect until a supplementary local agreement has been negotiated. The record clearly demonstrates that by its request to bargain, the Union was not trying to negotiate a new flexitime agreement but merely was attempting to revise the coverage of its employees under the parties' existing local agreement. Therefore, in denying flexitime to certain employees as requested by the Union, the Respondent was merely applying the terms of the parties' existing flexitime policy, and, by entering into such policy embodied in the local agreement, the Union clearly and unmistakably waived its right to bargain over the introduction of flexitime for previously uncovered employees. See Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia, 20 FLRA No. 62(1985). Accordingly, the Authority concludes that the Respondent's refusal to bargain herein did not constitute a violation of section 7116(a)(1) and (5) of the Statute. Moreover, to the extent that the Union sought to bargain over the introduction of flexitime for previously uncovered unit employees during the term of an existing agreement, the Authority has previously held that agency management is not obligated to bargain over union-initiated proposals during the term of existing agreements which are not related to changes initiated by the agency. See Internal Revenue Service, 17 FLRA No. 103(1985), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 85-1361 (D.C. Cir. June 14, 1985). See also Missouri National Guard, Office of the Adjutant General, Jefferson City, Missouri, 18 FLRA No. 44(1985). ORDER IT IS ORDERED that the complaint in Case No. 34-CA-30226 be, and it hereby is, dismissed. Issued, Washington, D.C., October 24, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 34-CA-30226 William C. Walker, Esquire For the Respondent Bruce D. Rosenstein, Esquire Wendy B. Finck, Esquire For the General Counsel Richard M. Earl, Sr., Esquire For the Charging Party Before: LOUIS SCALZO Administrative Law Judge DECISION Statement of the Case This case arose as an unfair labor practice proceeding under the provisions of the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter referred to as "the Statute"), and the Rules and Regulations issued thereunder. The case was referred to the Office of Administrative Law Judges on a stipulated record. The complaint alleged that on or about December 15, 1982, the Defense General Supply Center (DGSC), Richmond, Virginia (Respondent), a Primary Level Field Activity (PLFA), of the Defense Logistics Agency, violated Sections 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate with the American Federation of Government Employees, Local 2047, AFL-CIO (Charging Party or Union), concerning the introduction of flexitime for bargaining unit employees in the Respondent's Processing and Final Distribution Section, Shipment Planning Branch, Transportation Warehouse 61, Directorate of Storage and Transportation. Counsel representing the Respondent argues that the Union waived the right to negotiate concerning flexitime; and further that issues posed by the complaint should be resolved through the parties' grievance and arbitration procedure rather than unfair labor practice procedures, because they involve arguable and variable interpretations of applicable collective bargaining agreements. Based upon the entire record herein, including the stipulations of fact, the exhibits, and the briefs filed by the parties, I make the following findings of fact, conclusions and recommendation. Findings of Fact The following stipulations of fact entered into the record are accepted as true: /2/ 1. At all times material to the issues raised in the complaint, Brigadier General Atrilio Pedroli, USAF; and Captain R. E. Steidle, were supervisory or management officials within the meaning of Sections 7103(a)(10) and (11) respectively, of the Statute; and were agents of Respondent at its Richmond, Virginia location (Stip. 4). 2. By memorandum dated February 19, 1976, the Defense Logistics Agency, /3/ pursuant to 5 U.S.C. 6101(a)(2)(A), authorized each PFLA, including Respondent, to use flexible work schedules (Stip. 10, Jt. Exh. No. 11). 3. After receipt of the February 19, 1976, Defense Logistics Agency letter authorizing flexitime, an ad hoc committee was formed to develop procedures for administering flexitime at Respondent's Richmond location (Stip. 11). Representatives of the Union served on this ad hoc committee. The findings and recommendations of the committee were incorporated into DGSC Regulation No. 1422.3, dated May 11, 1976 (Stip. 11, Jt. Exh. No. 12). 4. From about May of 1976 through the present time /4/ employees assigned to the following of Respondent's Directorates and Offices have been working flexible schedules: A. Directorate of Storage and Transportation 1. Inventory Control Office, Warehouse 65. 2. Quality Control Office, Warehouse 65. 3. Document Control Office, Warehouse 59. 4. Mechanization Branch of OP&M., Warehouse 59. 5. Traffic Management Office of Transportation, Warehouse 60. B. Contracting and Production C. Supply Operations D. Technical Operations E. Comptroller F. Civilian Personnel G. Installation Services H. Office of Command Security, Officer Personnel I. Safety Office (Stip. 15). 5. Respondent's Directorate of Storage and Transportation presently has the following numbers of employees on flexitime: Inventory Control Office-54 employees Quality Control Office-17 employees Document Control Office-18 employees Mechanization Branch of OP&M-9 employees Traffic Management Office-9 employees (Stip. 15). 6. From May 11, 1976 until June 4, 1979, flexitime was administered pursuant to DGSC Regulation No. 1422.3 (Stip. 12, Jt. Exh. No. 12). 7. Since December 1, 1976, the Respondent and the Union have been governed by the provisions of a local collective bargaining agreement. This agreement currently remains in effect as a supplement to a Master Agreement executed on August 12, 1980, by the American Federation of Government Employees, AFL-CIO, and the Defense Logistics Agency (Jt. Exh. Nos. 3 and 4, Respondent's Brief at 2, and General Counsel's Brief at 6-8). 8. Since approximately January 1, 1977 until the present time, employees of the Processing and Final Distribution Section, Shipment and Planning Branch, Directorate of Storage and Transportation, have been on a fixed shift as opposed to a flexible shift (Stip. 16). 9. On February 27, 1979, the Union was provided with a copy of proposed DGSC Supplement 1, relating to Defense Logistics Agency Regulation 1422.1, captioned "Hours of Duty." (Stip. 13). 10. On May 9, 1979, the American Federation of Government Employees, AFL-CIO, was certified as the exclusive representative of a consolidated unit of nonprofessional employees, including those located at Respondent's Richmond, Virginia facilities (Stip. 5). 11. DGSC Supplement 1, relating to Defense Logistics Agency Regulation 1422.1, was published on June 4, 1979 (Stip. 13, Jt. Exh. No. 5). 12. From June 4, 1979 until the present, flexitime was administered in accordance with Defense Logistics Agency Regulation 1422.1, and DGSC Supplement 1, published on June 4, 1979 (Stip. 14, Jt. Exh. Nos. 5 and 6). 13. Since August 12, 1980, the American Federation of Government Employees, AFL-CIO, and the Defense Logistics Agency have been parties to a Master Agreement which delegated to the Union and the Respondent the right to negotiate over the installation of Flexitime (Stip. 6, Jt. Exh. No. 3). 14. On or about December 3, 1982, the Union submitted to Respondent a written request to negotiate the installation of Flexitime for bargaining unit employees in the Processing and Final Distribution Section of the Shipment Planning Branch of Transportation, Warehouse 61, Directorate of Storage and Transportation (Stip. 7, Jt. Exh. No. 7). 15. On or about December 15, 1982, Respondent failed and refused to negotiate with the Union over the installation of Flexitime for bargaining unit employees in the Processing and Final Distribution Section of the Shipment Planning Branch of Transportation, Warehouse 61, Directives of Storage and Transportation (Stip. 8, Jt. Exh. No. 8). In addition to the specifically stipulated facts outlined above, Joint Exhibits entered into the record and the stipulations referred to herein reflect the following: The Defense Supply Agency's February 19, 1976 memorandum of Heads of PFLA's authorized flexitime when it was considered beneficial at the PFLA level. Implementation was conditioned upon compliance with the Federal Personnel Manual, and provision was made for the participation of employee groups in planning flexitime programs at the PFLA level (Jt. Exh. No. 11). It appeared from the record that the Union was officially represented on an ad hoc committee charged with the responsibility of developing a flexitime program at Respondent's level of operation, and further that the findings and recommendations of the committee were incorporated in DGSC Regulation No. 1422.3, which went into effect on May 11, 1976 (Jt. Exh. No. 12). /5/ Paragraph IV.A.3. of the DGSC Regulation 1422.3 reflects the following policy: RESPONSIBILITIES A. Directors/Major Office Chiefs will: . . . . 3. Determine what positions will not participate in flexitime. These positions should be recorded by title, series, grade, and position number, together with the reasons for their exclusion, if not otherwise included by this regulation, . . . . The December 1, 1976 local agreement, which is still in effect, reflects that the parties intended to be governed by existing or future laws, and then existing regulations. Article VI, Section 1(a) of the agreement reflects the following: Section 1. This agreement is subject to the following requirements: (a) In the administration of all matters covered by this agreement, officials and employees are governed by existing or future laws and the regulations of appropriate authority, including policies set forth in the Federal Personnel Manual; by published Agency policies and regulations in existence at the time the agreement was approved. . . . Article X of the December 1, 1976 local agreement, entitled "Hours of Work and Tours of Duty," indicates at least three references to "flexitime" and (by implication) incorporates, the then existing flexitime program by reference. As noted the then existing flexitime program was spelled out in DGSC Regulation 1422.3 in specific terms. On September 15, 1978, Congress passed the Federal Employees Flexible and Compressed Work Schedules Act of 1978, Pub. L. No. 95-390, 92 Stat. 755(1978), (5 U.S.C. 6101 Note). The Act provided Federal agencies an initial three-year period to experiment with varied work schedules to evaluate the effectiveness and desirability of permanently maintaining flexible or compressed work schedules within Federal executive agencies. This Act did not affect the then existing flexitime program in effect by reason of the provisions of DGSC Regulation No. 1422.3, and the provisions of the December 1, 1976 local collective bargaining agreement executed by the Union and the Respondent. As of February 27, 1979, the Respondent commenced an effort to revise regulations pertaining to Respondent's flexitime program then in place. This was accomplished by supplying the Union with a copy of a proposed DGSC Supplement 1, relating to Defense Logistics Agency Regulation No. 1422.1, captioned "Hours of Duty." /6/ The exact procedure utilized by the parties to effect this regulatory change is not reflected in the record. However, the Union did supply comments concerning certain issues involved (Jt. Exh. No. 13). On June 4, 1979, a revised DGSC Supplement 1, to Defense Logistics Agency Regulation No. 1422.1, was issued. Through this issuance the Respondent utilized the format set out in earlier Defense Logistics Agency Regulation No. 1422.1, to "establish procedures and guidance for flexitime at the Defense General Supply Center. . . . " (Jt. Exh. No. 5). This issuance replaced DGSC Regulation No. 1422.3, dated May 11, 1976. The June 4, 1979 issuance, identified as DGSC Supplement 1 to Defense Logistics Agency Regulation 1422.1, reflects that the Supplement operated to modify Defense Logistics Agency Regulation 1422.1 so as to include the following as Paragraph IV.B.3.f.: 3. Directors and Major Office Chiefs will: . . . . f. Determine what positions will not participate in flexitime. These positions should be recorded by title, series, grade, and position number, together with the reasons for their exclusion, if not otherwise excluded by this regulation. . . . It was clear that the quoted language was identical to that used in Paragraph IV. A. 3. of DGSC Regulation 1422.3 issued on May 11, 1976. There is no indication in the record that the Union interposed objection to continuation of this terminology in the newly revised Defense Logistics Agency Regulation 1422.1, nor does the record otherwise reflect that the revised Regulation, as finally issued, was materially different. The May 9, 1979 certification of the American Federation of Government Employees, AFL-CIO as the exclusive representative of a consolidated unit eventually led to the execution of the August 12, 1980 Master Agreement. The terms of the Master Agreement were applicable to both professional and nonprofessional consolidated units of Defense Logistics Agency employees, including those represented by the Union in this case. The subject of flexitime is addressed in Article 20, Section 4 of the Master Agreement in the following terms: Subject to restrictions of Article 2, /7/ installation of flexitime within the administrative work week and basic work week stipulations set forth in Section 2 may be negotiated by the PLFA and the DLA Council Local. The cited Master Agreement provision operates to delegate to the Union and the Respondent the right to negotiate over issues relating to the "installation of flexitime." However, Article 44, Section 3 of the Master Agreement provides: All local labor-management agreements currently in effect which do not conflict with this Master Agreement shall remain in full force and effect until a supplementary agreement has been negotiated. Those provisions of currently existing local labor-management agreements which are in conflict with this Master Agreement are hereby superseded. On July 12, 1982, Congress passed the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227, 5 U.S.C. 6101 et seq. This enactment replaced the Federal employees Flexible and Compressed Work Schedules Act of 1978. Sections 6130(a)(1) and (2) of the 1982 enactment provide: (a)(1) In the case of employees in a unit represented by an exclusive representative, any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative. (2) Employees within a unit represented by an exclusive representative shall not be included within any program under this subchapter except to the extent expressly provided under a collective bargaining agreement between the agency and the exclusive representative. By memorandum dated December 3, 1982, Mr. Richard M. Earl, Sr., President and Executive Secretary of the Union addressed a request to Captain R. E. Steidle, Director of the Directorate of Storage and Transportation, for the purpose of requesting negotiations relating to "the installation of Flexitime in the Processing and Final Distribution Section of Shipment Planning Branch of Transportation, Whse. 61, Storage and Transportation." The Union proposed using "the present type of Flexitime i.e. core time 9:00 a.m. to 3:00 p.m. with 8 hours of duty between the hours of 6:30 a.m., and 5:30 p.m." (Jt. Exh. No. 7). By letter dated December 15, 1982, addressed to Mr. Earl, Captain Steidle responded that flexitime would not be introduced in the Processing and Final Distribution Section because it might interfere with the smooth functioning of the Section, and the support that the Section provided to the mission of the Directorate of Storage and Transportation (Jt. Exh. No. 8). By letter dated February 9, 1983, Brigadier General Attilio Pedroli, Commander, Defense General Supply Center, wrote to Mr. Earl and reiterated this position. He stated further that the flexitime schedule proposed was impractical; that the December 1, 1976 agreement, and Defense Logistics Agency Regulation 1422.1 covered this matter; that these documents were executed with Union concurrence; and that these documents did "not require management to negotiate, at the request of AFGE Local 2047, changes in tours of duty which are desired by bargaining unit employees." (Jt. Exh. No. 9). Discussion and Conclusions It is well settled that alleged unfair labor practices which essentially involve differing and arguable interpretations of a negotiated agreement, as distinguished from alleged actions which constitute clear and patent breaches of a negotiated agreement, are not deemed to be violative of the Statute. In such cases the aggrieved party's remedy lies within the grievance and arbitration procedures in the negotiated agreement rather than through unfair labor practice procedures. Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90, 11 FLRA 516 (March 9, 1983); Iowa National Guard and National Guard Bureau, 8 FLRA No. 101, 8 FLRA 500 (May 7, 1982); Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71, 8 FLRA 307 (March 26, 1982); Social Security Administration, District Offices in Denver, Pueblo and Greely, Colorado, et al., 3 FLRA No. 10, 3 FLRA 61 (April 14, 1980); U.S. Patent and Trademark Office, 3 FLRA No. 123, 3 FLRA 823, (July 31, 1980); Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA No. 82, 3 FLRA 511 (June 27, 1980); Department of Health, Education and Welfare, Social Security Administration, 1 FLRA No. 37, 1 FLRA 297 (May 9, 1979). The disposition of issues posed in this case are inextricably tied to questions of contract interpretation. That is, it would be necessary to resolve these questions in order to determine the contractual rights of the parties and to determine fully the respective rights of the parties under the Federal Employees Flexible and Compressed Work Schedules Act of 1982. Briefs filed by the parties clearly show that arguments presented by the General Counsel and the Respondent turn upon their respective interpretations of relevant provisions in the Master Agreement, and the December 1, 1976 local agreement. Section IV.A.3. of DGSC Regulation No. 1422.3 expressly gave Directors and Major Office Chiefs employed by the Respondent, authority to "(d)etermine what positions will not participate in flexitime." The parties stipulated that the flexitime program set out in Regulation No. 1422.3 embraced the findings and recommendations of an ad hoc committee formed to develop procedures for administering flexitime at the DGSC, and further that representatives of the Union served on the ad hoc committee. The program spelled out in Regulation No. 1422.3 was incorporated into the December 1, 1976 local agreement by reference. This incorporation by reference is reflected in Article VI, Section 1(a) which provides that, "(i)n the administration of all matters covered by this agreement, officials and employees are governed by existing or future laws and the regulations of appropriate authority, including . . . published Agency policies and regulations in existence at the time the agreement was approved. . . . " Article X of the December 1, 1976 local agreement also refers specifically to "flexitime," and was thus necessarily referring to the then existing flexitime program in place by virtue of the provisions of Regulation No. 1422.3, dated May 11, 1976. The flexitime regulations set out in DGSC Regulation No. 1422.3, did undergo some revision; however, the substance of the provision involved herein (IV.A.3.) remained unaltered in the June 4, 1979 issuance of DGSC Supplement 1 to Defense Logistics Agency Regulation 1422.1. Moreover, the record strongly suggests Union involvement prior to issuance of the June 4, 1979 Supplement. As early as March 5, 1979, the Union supplied proposals relating to the Respondent's plan to recodify the existing flexitime program into Defense Logistics Agency Regulation 1422.1. It is not contended that the revision of Regulation 1422.1 was issued in derogation of Union rights, or that unilateral changes in the flexitime program were effectuated. The facts reflect that the flexitime program promulgated on May 11, 1976 with Union involvement, insofar as it is relevant here, continued in effect for all intents and purposes, albeit in the form of Defense Logistics Agency Regulation 1422.1. The parties stipulated that since June 4, 1979, the program has been administered under the amended version of Defense Logistics Agency Regulation 1422.1. It appears that the parties considered the latter regulatory provision binding upon them for a period of about four and one half years prior to the alleged refusal to bargain. That is, for this period of time the provisions of Paragraph IV.B.3.f. of revised Defense Logistics Agency Regulation 1422.1 governed. This Paragraph reposed in the Respondent the right to determine which positions would be eligible to participate in flexitime. It is noted that Mr. Earl's December 3, 1982 bargaining request alluded to "the present type of flexitime" in his effort to expand coverage through negotiation. In doing so he was referring to the flexitime program prescribed in Defense Logistics Agency Regulation 1422.1. Although Article 20, Section 4 of the Master Agreement arguably imposes a new bargaining obligation upon the Respondent in the flexitime area, it is also true that Article 44, Section 3 of the Master Agreement may be utilized as a basis for arguing that the December 1, 1976 local agreement, together with flexitime as prescribed in regulations, both survived after execution of the Master Agreement. That is, although Article 20, Section 4 of the Master Agreement did provide for future PLFA, and Local 2047 negotiations relating to the "installation of flexitime" it must be noted that a flexitime program had already been installed at Respondent's Richmond location. Respondent might arguably contend that Article 20, Section 4 did not operate to abrogate what had previously been installed by the parties. Respondent may also contend that the flexitime program stemmed initially from the efforts of the ad hoc committee, which included Union participation; that it was continued in effect by the terms of the December 1, 1976 local agreement, and regulatory provisions endorsed by the Union; that it was given continued legal status by the Master Agreement and long-standing practice of the Parties over a period of years; and lastly, that the program in place specifically conferred upon the Respondent a clearly articulated contractual right to determine whether Processing and Final Distribution Section employees should be included under flexitime. All of these issues relate to variable and arguable interpretations of the two collective bargaining agreements in evidence. /8/ Heavy reliance is placed upon the Federal Employees Flexible and Compressed Work Schedules Act of 1982 as a basis for the bargaining obligation in this case. Section 6130(a)(1) of that Act provides that "any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative." At the outset threshold questions are posed with respect to the meaning and/or legal effect to be accorded pertinent provisions of the Master Agreement, pertinent provisions of the December 1, 1976 local agreement, and the regulatory scheme incorporated by reference. These would have to be resolved in order to determine the applicability of the 1982 Act. Section 6130(a)(2) provides that "(e)mployees within a unit represented by an exclusive representative shall not be included within any program under this subchapter except to the extent expressly provided under a collective bargaining agreement between the agency and the exclusive representative." Again, this language indicates that interpretations of pertinent contract provisions would have to be supplied before attempting to apply the provisions of the 1982 enactment. Notwithstanding other provisions of the 1982 Act, or any collective bargaining agreement, Section 6131 of Title 5 establishes criteria for alternative work schedules and for Federal Service Impasses Panel review of agency decisions terminating, or refusing to institute, alternative work schedules. Counsel for the General Counsel argues that this Section operates to impose a bargaining obligation in this case. Section 6131(a) provides that if the head of an agency finds that a particular schedule has had or would have an "adverse agency impact" as defined in Section 6131(b), the agency shall promptly determine not to establish such schedule. Section 6131(c)(1) and (2) provide that if an agency and an exclusive representative reach an impasse in collective bargaining with respect to an agency determination under subsection (a)(1) not to establish a flexible or compressed schedule, the impasse shall be presented to the Federal Service Impasses Panel, which shall promptly consider the case and take final action consistent with the requirements set forth in the Act. However, Section 6131(d) of the 1982 Act provides: (d) This section shall not apply with respect to flexible schedules that may be established without regard to the authority provided under this subchapter. Senate Report No. 97-365, 97th Congress, 2d Session 16, (1982), which accompanied S. 2240, prior to enactment into law as the 1982 Act, explained Section 6131(d) in the following terms: Subsection (d) provides for a restricted definition of flexible schedule. This restricted definition is only applicable to this section and section 4 of this Act. . . . The intent of this section is to constrict the normal negotiation process only over alternative work schedules that could not have been established prior to Public Law 95-390. . . . In this case we are specifically dealing with a flexitime proposal that could have been established prior to Public Law 95-390 (Federal Employees Flexible and Compressed Work Schedules Act of 1978), inasmuch as the proposal in issue would have merely extended the then existing flexitime program to the Processing and Final Distribution Section. By its terms the Union proposal in this case referred to flexitime of a type which had been in existence at Respondent's Richmond, Virginia location since May of 1976. Therefore, the provisions of Section 6131 may not be construed as imposing an independent bargaining obligation. Upon the basis of the foregoing, it is recommended that the Authority issue the following Order pursuant to 5 C.F.R. 2422.29. ORDER IT IS HEREBY ORDERED, that the complaint in Case No. 34-CA-30226, be, and it hereby is, dismissed. LOUIS SCALZO Administrative Law Judge Dated: February 22, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The Respondent's motion to dismiss the Charging Party's exceptions as untimely filed is denied. The Charging Party's request for an extension of time in which to file exceptions to the Judge's Decision was previously granted by the Authority for good cause shown within the meaning of section 2429.23(a) of the Authority's Rules and Regulations, and the Charging Party's exceptions were filed within such extension period. /2/ Although not set out in detail herein, the parties also stipulated to the truth of allegations in the complaint concerning the filing and service of the charge, amended charge, complaint, answer, and amended answer. Also, the parties stipulated that the Union was a "labor organization" within the meaning of Section 7103(a)(4) of the Statute; and that the Respondent was an "agency" within the meaning of Section 7103(a)(3) of the Statute. /3/ The record reflects that the Defense Logistics Agency was then known as the Defense Supply Agency (Jt. Exh. Nos. 11 and 12). /4/ The Stipulation was executed on September 2, 1983. /5/ As of May 11, 1976, the parties were also governed generally by Defense Supply Agency Regulation No. 1422.1 dated January 20, 1975, entitled "Hours of Duty." (Jt. Exh. Nos. 5 and 6). This later became known as Defense Logistics Agency Regulation No. 1422.1. Regulation No. 1422.1 did not then address flexitime issues. However, the power to fix daily and weekly work schedules was specifically delegated to the Heads of PFLA's. /6/ As previously noted Defense Logistics Agency Regulation No. 1422.1 did not then specifically relate to flexitime. /7/ Among other things, Article 2 of the Master Agreement reflects the intent of the Defense Logistics Agency and Defense Logistics Agency Council of AFGE Locals, to be governed by all applicable laws of the United States whether enacted before or after the execution of the Master Agreement. /8/ The General Counsel's case is based largely upon Article 20, Section 4, of the Master Agreement. The Authority has specifically held, where there is a dispute as to whether a master agreement, negotiated at the national level, authorizes bargaining at the local level on certain matters contained therein, the proper forum in which to resolve such disputes would be that which the parties themselves have adopted for such purpose. American Federation of Government Employees, AFL-CIO, Local 695, 3 FLRA No. 7(1980), 3 FLRA 42. Issues involved in this case do not, as contended by the counsel for the General Counsel, relate to the question of whether the Union clearly and unequivocally waived bargaining rights. The record does in fact reflect evidence of a clear and unequivocal waiver. However, in order to determine the legal effect of the waiver, as of the date of the refusal to bargain stipulated, it is necessary to resolve variable and arguable interpretations of relevant contractual provisions.