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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 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.

I.

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 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 ‘‘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.
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 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 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 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
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 procedures.’’ 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 rejection 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 tenday 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 bargaining 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 simply 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 proposed 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 representative with a reasonable opportunity to request bargaining.

For example, the notice must apprise the exclusive representative 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 number 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 offered 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 request 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 requiring 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 authorized 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 attending 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 withdrew 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 implementation of a proposed change created no new bargaining obligation 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 therefore 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 requirement that notices include timing information is weakened 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 indicating 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 Authority 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 reasons’’ 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 encourage 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 disputes between employees and their employers involving conditions 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 benefits 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.