[ v09 p606 ]
09:0606(68)CA
The decision of the Authority follows:
9 FLRA No. 68
DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
REGION VIII, SAN FRANCISCO,
CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case Nos. 9-CA-224
9-CA-230
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAS ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION. THEREAFTER, THE GENERAL COUNSEL, THE CHARGING PARTY
AND THE RESPONDENT EACH FILED EXCEPTIONS, CROSS-EXCEPTIONS AND
OPPOSITIONS TO EXCEPTIONS. /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), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD IN THESE CONSOLIDATED CASES, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. THUS, THE AUTHORITY ADOPTS THE JUDGE'S CONCLUSION THAT
THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY ITS
REFUSAL TO BARGAIN OVER IMPACT AND IMPLEMENTATION PROPOSALS, I.E., THE
STARTING AND QUITTING TIMES AND LUNCH PERIODS TO BE ESTABLISHED IN
CONNECTION WITH THE NEWLY ESTABLISHED SHIFTS.
THE JUDGE RECOMMENDED THAT THE RESPONDENT BE REQUIRED TO NEGOTIATE,
UPON REQUEST, WITH THE CHARGING PARTY REGARDING THE IMPACT AND
IMPLEMENTATION OF THE DECISION TO ESTABLISH THE NEW SHIFTS. THE GENERAL
COUNSEL AND THE CHARGING PARTY HAVE REQUESTED THAT, AS A REMEDY, THE
AUTHORITY ORDER A RETURN TO THE STATUS QUO ANTE. THE AUTHORITY FINDS
THAT SUCH A REMEDY IS NOT WARRANTED HEREIN. THUS, SINCE THIS CASE
INVOLVES THE ESTABLISHMENT OF NEW SHIFTS, THERE ARE NO PREEXISTING
STARTING OR QUITTING TIMES, OR LUNCH PERIODS, WHICH THE AUTHORITY MAY
NOW ORDER THE RESPONDENT TO REINSTATE WHILE THE PARTIES ENGAGE IN
COLLECTIVE BARGAINING WITH RESPECT THERETO. ACCORDINGLY, THE AUTHORITY
FINDS THAT A STATUS QUO ANTE REMEDY IS NOT APPROPRIATE HEREIN, AND
THEREFORE ADOPTS THE JUDGE'S RECOMMENDED ORDER IN THIS REGARD. /2/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE U.S. CUSTOMS SERVICE, REGION VIII,
SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING ANY CHANGES IN TOURS OF DUTY AT THE HONOLULU AND SAN
FRANCISCO INTERNATIONAL AIRPORTS WITHOUT FIRST ALLOWING THE NATIONAL
TREASURY EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES,
THE OPPORTUNITY TO NEGOTIATE THE STARTING AND QUITTING TIMES AND LUNCH
HOURS OF SUCH NEW TOURS OF DUTY.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, CONCERNING THE STARTING
AND QUITTING TIMES AND LUNCH HOURS OF THE NEWLY ESTABLISHED TOURS OF
DUTY AT THE HONOLULU AIRPORT. /3/
(B) POST AT THE HONOLULU AND SAN FRANCISCO INTERNATIONAL AIRPORTS
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 REGIONAL COMMISSIONER, UNITED STATES CUSTOMS SERVICE,
REGION VIII, 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 SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR, REGION IX, FEDERAL LABOR RELATIONS
AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JULY 21, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE ANY CHANGE IN TOURS OF DUTY WITHOUT FIRST ALLOWING
THE NATIONAL TREASURY EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF
OUR EMPLOYEES, THE OPPORTUNITY TO NEGOTIATE CONCERNING THE STARTING AND
QUITTING TIMES AND LUNCH HOURS OF SUCH NEW TOURS OF DUTY. WE WILL NOT
IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR
EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE. WE WILL, UPON REQUEST, NEGOTIATE
WITH THE NATIONAL TREASURY EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE
OF OUR EMPLOYEES, CONCERNING THE STARTING AND QUITTING TIMES AND LUNCH
HOURS OF THE NEWLY ESTABLISHED TOURS OF DUTY AT HONOLULU AIRPORT.
(ACTIVITY)
DATED: . . . BY: (SIGNATURE) 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
QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE WITH ANY OF ITS
PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR OF
THE FEDERAL LABOR RELATIONS AUTHORITY, REGION IX, WHOSE ADDRESS IS: 530
BUSH STREET, ROOM 542, SAN FRANCISCO, CA 94108, AND WHOSE TELEPHONE
NUMBER IS: (415) 556-8105.
-------------------- ALJ$ DECISION FOLLOWS --------------------
CARL D. CAMMARATA, ESQUIRE
FOR THE RESPONDENT
BARI STOLMACK, ESQUIRE
FOR THE GENERAL COUNSEL
ALAN HERSH, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5
U.S.C.SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED
THEREUNDER, FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5
C.F.R.CHAPTER XIV, PART 2411, ET SEQ.
PURSUANT TO AMENDED CHARGES FIRST FILED ON NOVEMBER 7, 1979, IN CASE
NO. 9-CA-224, AND ON NOVEMBER 19, 1979 IN CASE NO. 9-CA-230, BY THE
NATIONAL TREASURY EMPLOYEES UNION, (HEREINAFTER CALLED THE NTEU OR
UNION), AN AMENDED CONSOLIDATED COMPLAINT AND NOTICE OF HEARING WAS
ISSUED ON MAY 6, 1980, BY THE REGIONAL DIRECTOR FOR REGION IX, FEDERAL
LABOR RELATIONS AUTHORITY, SAN FRANCISCO, CALIFORNIA. THE COMPLAINT
ALLEGES, IN SUBSTANCE, THAT THE DEPARTMENT OF THE TREASURY, UNITED
STATES CUSTOMS SERVICE, REGION VIII, SAN FRANCISCO, CALIFORNIA,
(HEREINAFTER CALLED THE RESPONDENT OR CUSTOMS SERVICE), VIOLATED
SECTIONS 7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (HEREINAFTER CALLED THE STATUTE OR ACT), BY VIRTUE OF
ITS ACTIONS IN UNILATERALLY ADOPTING AND IMPLEMENTING ADDITIONAL WORK
SHIFTS AT THE HONOLULU AIRPORT AND THE SAN FRANCISCO INTERNATIONAL
AIRPORT WHILE NEGOTIATIONS CONCERNING THE ESTABLISHMENT OF SUCH SHIFTS
WERE STILL PENDING.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON JULY 9, 1980, IN SAN
FRANCISCO. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING
ON THE ISSUES INVOLVED HEREIN. THE PARTIES SUBMITTED POST HEARING
BRIEFS WHICH HAVE BEEN DULY CONSIDERED. /4/
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT /5/
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
RESPONDENT OPERATES CUSTOMS FACILITIES AT THE HONOLULU AIRPORT AND
THE SAN FRANCISCO INTERNATIONAL AIRPORT WHEREIN IT INSPECTS ALL BAGGAGE
COMING IN FROM FOREIGN COUNTRIES. THE UNION, WHICH IS THE CHARGING
PARTY HEREIN, IS THE EXCLUSIVE REPRESENTATIVE OF THE CUSTOMS INSPECTORS
WORKING AT RESPONDENT'S FACILITIES IN THE HONOLULU AIRPORT AND THE SAN
FRANCISCO INTERNATIONAL AIRPORT.
SAN FRANCISCO AIRPORT CHANGES AND NEGOTIATIONS:
BY LETTER DATED OCTOBER 19, 1979, MR. PAUL ANDRES, RESPONDENT'S
ASSISTANT REGIONAL COMMISSIONER, INFORMED MS. PRISCILLA WINSLOW, NTEU'S
NATIONAL FIELD REPRESENTATIVE, THAT RESPONDENT, DUE TO A CHANGE IN
FLIGHT ARRIVAL TIMES, WAS ESTABLISHING A NEW SHIFT AT THE SAN FRANCISCO
INTERNATIONAL AIRPORT ON NOVEMBER 12, 1979. THE SHIFT WAS TO BE IN
EFFECT MONDAY THROUGH SATURDAY, 7:30 A.M. TO 4:30 P.M. ALTHOUGH NOT
CLEAR FROM THE RECORD, IT APPEARS THAT AS OF OCTOBER 1979, THE ONLY
SHIFT IN EFFECT WAS ONE WHICH COMMENCED AT 8 A.M. AND TERMINATED AT 5
P.M. THE CONTENTS OF THE LETTER WERE INFORMALLY DISCUSSED ON THE
TELEPHONE BY THE RESPECTIVE REPRESENTATIVES OF THE RESPONDENT AND THE
UNION AND IT WAS AGREED THAT A MEETING BE SCHEDULED FOR PURPOSES OF
DISCUSSING THE RESPONDENT'S ESTABLISHMENT OF A NEW SHIFT. ON OCTOBER
23, 1979, THE UNION SENT THE RESPONDENT A LETTER WHEREIN IT FORMALLY
REQUESTED NEGOTIATIONS WITH RESPECT TO THE SUBSTANCE, IMPACT AND
IMPLEMENTATION OF THE NEW SHIFT. THE UNION'S LETTER FURTHER REQUESTED
THAT THE IMPLEMENTATION OF THE NEW SHIFT BE DELAYED UNTIL THE MATTER HAD
BEEN FULLY NEGOTIATED.
ON OCTOBER 29, 1979, A MEETING WAS HELD FOR PURPOSES OF FURTHER
DISCUSSING THE PROPOSED NEW SHIFT. AFTER ASKING A NUMBER OF QUESTIONS
CONCERNING THE NEW SHIFT, THE UNION PROPOSED THAT THE STARTING HOUR OF
THE SHIFT BE 7:15 A.M. RATHER THAN 7:30 A.M.; THAT THE SHIFT BE OF AN
EIGHT HOUR DURATION RATHER THAN THE NINE HOURS PROPOSED BY MANAGEMENT;
THAT THE EMPLOYEES BE ALLOWED TO TAKE A LUNCH HOUR ON THE CLOCK; THAT
ASSIGNMENT TO THE NEW SHIFT BE BASED ON VOLUNTEERS; AND THAT
IMPLEMENTATION OF THE NEW SHIFT BE DELAYED UNTIL SUCH SHIFT COULD BE
COORDINATED WITH PERSONNEL FROM THE IMMIGRATION SERVICE WHICH ALSO
PERFORMED INVESTIGATORY FUNCTIONS ON INCOMING FOREIGN PLANES. THE
PARTIES FAILED TO REACH AGREEMENT ON THE AFOREMENTIONED PROPOSALS OF THE
UNION AND THE MEETING ENDED WITH THE UNION MAKING IT CLEAR THAT IT
INTENDED TO SEEK THE ASSISTANCE OF A FEDERAL MEDIATOR.
ON NOVEMBER 7, 1979, THE PARTIES HELD ANOTHER BARGAINING SESSION AT
THE OFFICE OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE. DURING
THE COURSE OF THE MEETING THE PARTIES ANSWERED MANY QUESTIONS PRESENTED
BY THE MEDIATOR AND THE UNION RESTATED THE PROPOSALS WHICH IT HAD MADE
AT THE OCTOBER 29TH MEETING. RESPONDENT TOOK THE POSITION THAT THE
UNION'S PROPOSALS WERE UNACCEPTABLE AND THAT IN ANY EVENT IT, THE
RESPONDENT, WAS NOT OBLIGATED TO NEGOTIATE THE STARTING TIME OF THE
SHIFT, DURATION OF THE LUNCH HOUR AND THE DATE OF IMPLEMENTATION OF THE
NEW SHIFT. THE MEETING ENDED WITH NO AGREEMENT ON THE STARTING TIME,
DURATION OF THE SHIFT, LUNCH HOUR AND DATE OF IMPLEMENTATION. THE
PARTIES DID REACH AN INTERIM AGREEMENT WITH RESPECT TO THE METHOD OF
STAFFING THE NEW SHIFT.
ON NOVEMBER 13, 1979, THE NEW SHIFT WAS PUT INTO EFFECT. ON THE NEXT
DAY, NOVEMBER 14, 1979, THE PARTIES AGAIN MET WITH THE MEDIATOR. DURING
THE COURSE OF THE MEETING THE PARTIES REACHED AGREEMENT ON THE DISPUTED
ISSUES. THE WRITTEN AGREEMENT WHICH IS DATED NOVEMBER 14, 1979, AND
INCLUDED IN THE RECORD AS JOINT EXHIBIT J, PROVIDES THAT THE NEW SHIFT
WILL BE FROM 7:15 A.M. TO 4:15 P.M., THAT EMPLOYEES MAY FOREGO THEIR
RESPECTIVE LUNCH HOURS AND QUIT WORK AT 3:15 P.M. IF THE WORK LOAD AND
OPERATIONAL REQUIREMENTS SO PERMIT, AND THAT EMPLOYEES WILL BE ASSIGNED
TO THE NEW SHIFT ON A ROTATIONAL BASIS AND BE ALLOWED, SUBJECT TO
APPROVAL OF THEIR SUPERVISOR, TO TRADE SHIFTS. AT NO TIME DURING THE
NEGOTIATIONS WAS AN IMPASSE DECLARED BY EITHER THE RESPONDENT OR THE
MEDIATOR.
HONOLULU AIRPORT CHANGES AND NEGOTIATIONS:
ON OR ABOUT JUNE 12, 1979, DEPARTMENT OF THE TREASURY, U.S. CUSTOMS
SERVICE ISSUED A MANUAL SUPPLEMENT TO ITS "POLICIES AND PROCEDURES
MANUAL" WHICH DEALT WITH "MANAGEMENT OF INSPECTIONAL OVERTIME". THE
MANUAL SUPPLEMENT DIRECTED RESPONDENT'S VARIOUS REGIONAL OFFICES TO
ESTABLISH TOURS OF DUTY WHICH WOULD CURTAIL THE PAYMENT OF OVERTIME.
THE MANUAL FURTHER INSTRUCTED THE REGIONS TO NOTIFY ANY UNION INVOLVED
AND BARGAIN SOLELY ON THE IMPACT AND IMPLEMENTATION OF ANY CHANGE IN A
TOUR OF DUTY. THE MANUAL SUPPLEMENT DID NOT CONTAIN ANY SPECIFIED DATE
BY WHICH IMPLEMENTATION OF CHANGES IN ESTABLISHED TOURS OF DUTY WERE TO
BE IMPLEMENTED, NOR DID IT SET FORTH THE PRECISE MANNER IN WHICH
OVERTIME WAS TO BE CURTAILED.
ON SEPTEMBER 29, 1979, PUBLIC LAW 96-74 WAS ENACTED BY CONGRESS.
PUBLIC LAW 96-74 PROVIDED, AMONG OTHER THINGS, THAT NO CUSTOMS EMPLOYEES
WERE TO BE PAID IN EXCESS OF $20,000 PER ANNUM FOR OVERTIME WORK
PERFORMED DURING THE FISCAL YEAR COMMENCING OCTOBER 1, 1979.
ON SEPTEMBER 28, 1979, MR. PAUL ANDRES, ASSISTANT REGIONAL
COMMISSIONER FOR REGION VIII, U.S. CUSTOMS SERVICE, WROTE A LETTER TO
MS. PRISCILLA WINSLOW, NTEU NATIONAL FIELD REPRESENTATIVE, WHEREIN HE
INFORMED THE UNION THAT EFFECTIVE OCTOBER 28, 1979, THREE SHIFTS WOULD
BE ESTABLISHED AT THE HONOLULU INTERNATIONAL AIRPORT. THE SHIFTS WERE
TO BE FROM 6 A.M. TO 2 P.M., 7 A.M. TO 3 P.M. AND FROM 9 A.M. TO 6 P.M.
AS OF SEPTEMBER 29, 1979, THE UNIT EMPLOYEES WERE ONLY WORKING ONE
SHIFT, I.E. 8 A.M. TO 4 P.M.
SUBSEQUENTLY, DURING THE COURSE OF A TELEPHONE CONVERSATION BETWEEN
THE RESPECTIVE REPRESENTATIVES OF THE RESPONDENT AND THE UNION
CONCERNING THE SEPTEMBER 28, 1979 LETTER, RESPONDENT CHANGED THE
PROPOSED STARTING AND QUITTING TIMES OF THE THREE SHIFTS TO BE AS
FOLLOWS: 6 A.M. TO 2:30 P.M., 6:30 A.M. TO 3 P.M. AND 9 A.M. TO 5:30
P.M. ALSO, DURING THE AFOREMENTIONED CONVERSATION, THE UNION REQUESTED
NEGOTIATIONS WITH RESPECT TO THE PROPOSED NEW TOURS OF DUTY AND ASKED
THE RESPONDENT NOT TO IMPLEMENT THE NEW TOURS OF DUTY UNTIL SUCH TIME AS
THE PARTIES HAD COMPLETED NEGOTIATIONS THEREON. THE UNION LATER
CONFIRMED ITS REQUESTS FOR NEGOTIATIONS AND DELAY OF IMPLEMENTATION OF
THE NEW TOURS BY A LETTER DATED OCTOBER 10, 1979.
THE PARTIES HELD NEGOTIATION SESSIONS ON OCTOBER 11 AND FROM OCTOBER
16 THROUGH THE 19TH, WHEREIN AGREEMENT WAS REACHED ON THREE ISSUES
RELATING TO THE CHANGE IN TOURS OF DUTY. THE AGREEMENT COVERED
ROTATION, SHIFT AND ADJUSTMENT FOR EDUCATIONAL PURPOSES AND THE USE OF
COMPENSATORY TIME.
ON OCTOBER 19, 1979, RESPONDENT NOTIFIED THE UNION THAT IT WOULD
DELAY IMPLEMENTATION BY ONE ADDITIONAL WEEK, UNTIL NOVEMBER 4, 1979, FOR
THE PURPOSES OF ALLOWING ONE WEEK'S NOTICE TO EMPLOYEES CONCERNING
SPECIFIC SHIFT ASSIGNMENTS AND POSSIBLE RESOLUTION OF OTHER OUTSTANDING
ISSUES. AT THE TIME OF THE ANNOUNCEMENT CONCERNING THE IMPLEMENTATION
DATE, THE PARTIES WERE STILL BARGAINING OVER SUCH ISSUES AS WHICH HOURS
IN THE DAY LUNCH COULD BE TAKEN, GROUND RULES, ADMINISTRATIVE DUTIES,
LEAVE, BREAKS AND SHIFT SWAPPING. DURING THE COURSE OF THE ABOVE
NEGOTIATING MEETING THE RESPONDENT, RELYING PRIMARILY ON THE PROVISIONS
OF 5 U.S.C. 7106 (MANAGEMENT RIGHTS), DECLARED SUCH ISSUES AS THE
STARTING AND QUITTING TIMES OF THE SHIFT AND THE DURATION OF THE TOURS
OF DUTY WHICH EXTENDED THE TOUR OF DUTY AN ADDITIONAL HALF HOUR TO
PROVIDE FOR A LUNCH HOUR "OFF THE CLOCK" TO BE NON-NEGOTIABLE. PRIOR TO
THE CHANGE IN THE TOURS OF DUTY, IT APPEARS FROM THE RECORD, THAT
EMPLOYEES NORMALLY TOOK LUNCH BREAKS "ON THE CLOCK". THE UNION
REQUESTED MEDIATION AND THE PARTIES MET WITH THE MEDIATOR ON OCTOBER 31
OR NOVEMBER 1, 1979. NO FURTHER AGREEMENTS WERE REACHED DURING THESE
SESSIONS AND THE PARTIES AGAIN MET IN MEDIATION IN LATE NOVEMBER OR
EARLY DECEMBER OF 1979. AT THE CONCLUSION OF THIS MEETING, THE MEDIATOR
DECLARED THAT THE PARTIES WERE AT IMPASSE. IN THE INTERIM, ON NOVEMBER
4, 1979, THE RESPONDENT IMPLEMENTED THE NEW TOURS OF DUTY. SEVEN
EMPLOYEES REMAINED IN THE PREVIOUSLY SCHEDULED UNCHANGED TOUR OF DUTY
FROM 8 A.M. TO 4 P.M. NEW TOURS OF DUTY WERE ESTABLISHED AS FOLLOWS:
(1) 6 A.M. TO 2:30 P.M., (2) 6:30 A.M. TO 3 P.M., (3) 9 A.M. TO 5:30
P.M. ON OR ABOUT DECEMBER 5, 1979, THE PARTIES MET AGAIN. AT THIS TIME
THE PARTIES EXECUTED A NEGOTIATED AGREEMENT CONCERNING SHIFT TRADING AND
LUNCH PERIODS. THE PARTIES HAD REACHED AGREEMENT ON THE FOREGOING
ISSUES AT THE EARLIER MEETING HELD IN THE PRESENCE OF THE FEDERAL
MEDIATOR IN EITHER LATE NOVEMBER OR EARLY DECEMBER. THE AGREEMENT
PROVIDED, AMONG OTHER THINGS, THAT RESPONDENT WOULD PROVIDE THE
INSPECTORS A LUNCH PERIOD BETWEEN THE 3RD AND 5TH HOURS OF THEIR
RESPECTIVE SHIFTS.
THE CHANGES IN TOURS OF DUTY AND THE DURATION OF THE LUNCH HOUR
IMPLEMENTED BY RESPONDENT ON NOVEMBER 4, 1979, RESULTED IN CHANGES IN
THE ASSIGNMENT OF OVERTIME, AND IN SOME CASES, IN THE DECREASE OF
OVERTIME TO SOME EMPLOYEES.
THE RECORD REVEALS THAT THE AIRLINES SERVING HAWAII CHANGE THEIR
SCHEDULES TWICE A YEAR AND THAT STARTING IN THE FALL AND WINTER OF 1979
A GOOD NUMBER OF AIRLINE FLIGHTS WOULD BE ARRIVING BETWEEN THE HOURS OF
6 A.M. AND 8 A.M. THE RECORD FURTHER INDICATES THAT THERE WOULD HAVE
BEEN VERY LITTLE FLIGHT ACTIVITY BETWEEN THE HOURS OF 3 P.M. AND 4 P.M.
LASTLY, VARIOUS CHARTS PREPARED BY THE RESPONDENT AND ADMITTED INTO
EVIDENCE INDICATE THAT IF FALL AND WINTER AIRLINE SCHEDULES CONTINUED
WITHOUT CHANGE AND THERE WERE NO CHANGES IN THE EXISTING 8 A.M. TO 4
P.M. ESTABLISHED TOUR OF DUTY, MANY UNIT EMPLOYEES MIGHT WELL HAVE
REACHED THE $20,000 OVERTIME CAP IMPOSED BY CONGRESS PRIOR TO THE END OF
THE FISCAL YEAR.
DISCUSSION AND CONCLUSIONS
RESPONDENT URGES DISMISSAL OF THE COMPLAINT ON VARIOUS PROCEDURAL AND
SUBSTANTIVE GROUNDS. WITH RESPECT TO THE PROCEDURAL GROUNDS PREDICATED
ON THE LACK OF JURISDICTION OF THE AUTHORITY'S SAN FRANCISCO REGION TO
PROSECUTE THE INSTANT CASE AND THE ALLEGED CONTRADICTORY AND AMBIGUOUS
NATURE OF THE COMPLAINT, I ADHERE TO MY PRIOR RULINGS THEREON MADE
DURING THE COURSE OF THE HEARING THAT SUCH MOTIONS ARE WITHOUT MERIT.
WITH RESPECT TO THE SUBSTANTIVE GROUNDS FOR DISMISSAL, RESPONDENT
TAKES THE POSITION THAT IT WAS NOT OBLIGATED TO BARGAIN OVER THE
STARTING AND QUITTING TIMES AND LUNCH HOUR PROPOSALS OF THE UNION SINCE
SUCH PROPOSALS WERE INTEGRALLY RELATED TO RESPONDENTS STAFFING PATTERNS.
IT FURTHER ARGUES THAT WITH RESPECT TO IMPACT AND IMPLEMENTATION THAT
IT DID BARGAIN OVER SUCH ISSUES AND ONLY IMPLEMENTED ITS PROPOSALS AFTER
IMPASSE WAS REACHED. LASTLY, RESPONDENT TAKES THE POSITION THAT
INASMUCH AS THE NEW TOURS OF DUTY WERE MANDATED BY A NATIONAL POLICY
ANNOUNCED BY THE CUSTOMS SERVICE, RESPONDENT WAS ONLY OBLIGATED TO
BARGAIN ON THE ISSUES WITH THE NATIONAL TREASURY EMPLOYEES UNION WHICH
ENJOYED NATIONAL EXCLUSIVE RECOGNITION AND NOT THE REGIONAL
REPRESENTATIVE OF THE NTEU. /6/
IN SUPPORT OF ITS POSITION THAT THE STARTING AND QUITTING TIMES AND
LUNCH HOUR PROPOSALS OF THE UNION WERE NON-NEGOTIABLE THE RESPONDENT
RELIES ON THE MANUAL SUPPLEMENT AND THE $20,000 OVERTIME PAY CAP IMPOSED
BY CONGRESS. ACCORDING TO RESPONDENT'S COUNSEL, THE $20,000 OVERTIME
PAY CAP WOULD RESTRICT THE USE OF ANY EMPLOYEE REACHING SUCH CAP ON
OVERTIME ASSIGNMENTS. THUS IT WAS IMPERATIVE THAT THE NEW TOURS OF DUTY
BE ESTABLISHED IN ORDER TO PREVENT RESPONDENT FROM BEING RESTRICTED WITH
RESPECT TO THE EFFECTIVE UTILIZATION OF ITS PERSONNEL. ALTHOUGH NOT
ENTIRELY CLEAR, IT APPEARS THAT RESPONDENT TAKES THE POSITION THAT
INASMUCH AS THE MANUAL SUPPLEMENT, WHICH IS APPLICABLE NATIONWIDE,
MANDATES CURTAILMENT OF OVERTIME, IT EXCUSED FROM BARGAINING WITH THE
UNION WITH RESPECT TO CHANGES IN STARTING AND QUITTING TIMES SINCE SUCH
CHANGES WERE ENACTED PURSUANT TO AN ORDER FROM HIGHER AUTHORITY.
THE AUTHORITY HAS HELD THAT IN THE ABSENCE OF A SHOWING THAT STARTING
AND QUITTING TIMES OF A SHIFT OR TOUR OF DUTY ARE INTEGRALLY RELATED TO
STAFFING, PROPOSALS THEREON BY A UNION ARE NEGOTIABLE. THE AUTHORITY
HAS FURTHER HELD THAT THE BURDEN OF ESTABLISHING THAT A UNION'S
PROPOSALS CONCERNING STARTING AND QUITTING TIMES IMPINGE UPON THE
RESPONDENT'S "MANAGEMENT RIGHT" TO UNILATERALLY DETERMINE STAFFING
PATTERNS IS UPON THE RESPONDENT. NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 666 AND INTERNAL REVENUE SERVICE, KANSAS CITY SERVICE CENTER, 1
FLRA NO. 106. UPON THE BASIS OF THE ENTIRE RECORD AND PARTICULARLY THE
CONSIDERATIONS SET FORTH BELOW, I FIND THAT THE RESPONDENT HAS FAILED IN
ITS ENDEAVOR TO ESTABLISH THAT THE UNION'S PROPOSALS WITH REGARD TO
STARTING AND QUITTING TIMES AND LUNCH PERIODS ARE "INTEGRALLY RELATED TO
THE RESPONDENT'S STAFFING PATTERNS" AND THUS ARE NON-NEGOTIABLE.
AT THE TIME RESPONDENT REFUSED TO CONSIDER THE UNION'S PROPOSALS THE
FISCAL YEAR, TO WHICH THE $20,000 CONGRESSIONAL PAY CAP WAS APPLICABLE,
HAD JUST STARTED AND NONE OF THE UNIT EMPLOYEES WERE SHOWN TO HAVE BEEN
ANYWHERE NEAR THE $20,000 LIMIT ON OVERTIME. ADDITIONALLY, THERE WAS NO
SHOWING THAT THE UNION'S PROPOSAL RELATIVE TO STARTING AND QUITTING
TIMES WOULD HAVE EITHER INCREASED OVERTIME OR EVEN NECESSITATED
OVERTIME. IN FACT IN SAN FRANCISCO THE UNION'S PROPOSALS VARIED ONLY 15
MINUTES FROM THOSE ANNOUNCED OR INSISTED UPON BY THE RESPONDENT. /7/
CONSIDERING THE FOREGOING AND THE FACT THAT FUTURE AIRLINE FLIGHT
SCHEDULE CHANGES MIGHT WELL BE MADE AND CAUSE A DECREASE IN ANTICIPATED
OVERTIME, I FIND RESPONDENT'S POSITION WITH REGARD TO THE IMPACT OF THE
$20,000 PAY CAP, I.E. IMPINGING ON ITS FREEDOM TO ASSIGN EMPLOYEES TO
OVERTIME WORK, TO BE AT BEST SPECULATIVE AND UNSUPPORTED BY THE RECORD
EVIDENCE.
ASIDE FROM THE FACT THAT THE MANUAL SUPPLEMENT SET FORTH NO
PARTICULAR IMPLEMENTATION DATE AND WAS AT BEST A GENERAL STATEMENT OF
POLICY CONTAINING NO SPECIFICS, I FIND THAT RESPONDENT'S RELIANCE ON THE
MANUAL SUPPLEMENT AS EXCUSE FOR ITS ACTIONS TO BE IN ERROR. IT HAS LONG
BEEN HELD THAT, AT LEAST IN THE FIELD OF UNFAIR LABOR PRACTICES, AN
ACTIVITY MAY NOT BE RELIEVED FROM ITS BARGAINING RESPONSIBILITIES SIMPLY
BECAUSE IT WAS ACTING UNDER THE AEGIS OR COMMAND OF HIGHER MANAGEMENT.
IT IS ONLY WHEN THE ACTIVITY IS PERFORMING SOLELY MINISTERIAL FUNCTIONS
THAT RELIEF FROM AN UNFAIR LABOR PRACTICE FINDING IS IN ORDER. NAVAL
AIR REWORK FACILITY, PENSACOLA, FLORIDA AND SECRETARY OF THE NAVY,
WASHINGTON, D.C. AND AFGE LOCAL 1960, A/SLMR NO. 608, FLRC NO. 76A-37
(MAY 4, 1977). HERE, HOWEVER, THE ACTIVITY OR REGION WAS PERFORMING
MORE THAN A MINISTERIAL FUNCTION. THUS, I FIND THAT THE ACTIVITY HEREIN
WAS SPECIFICALLY IMPLEMENTING WHAT OTHERWISE WAS MERELY A GENERAL POLICY
OF THE AGENCY WITH RESPECT TO THE CURTAILMENT OF EXCESSIVE OVERTIME. IN
THIS REGARD THE RECORD INDICATES THAT INSTITUTION OF THE NEW SHIFTS AND
RESPECTIVE STARTING AND QUITTING TIMES WAS SOLELY THE PRODUCT OF THE
ACTIVITY'S SUPERVISORY OFFICIALS WHO WERE ATTEMPTING TO COMPLY WITH THE
GENERAL POLICY ON OVERTIME SET FORTH IN THE MANUAL SUPPLEMENT.
ACCORDINGLY, BASED UPON THE FOREGOING CONSIDERATIONS, I FIND THAT THE
RESPONDENT WAS OBLIGATED TO BARGAIN ON THE UNION'S PROPOSALS WITH
RESPECT TO THE STARTING AND QUITTING TIMES AND LUNCH HOURS OF THE NEWLY
ESTABLISHED SHIFTS OR TOURS OF DUTY AND THAT ITS FAILURE TO DO SO WAS
VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF THE ACT.
MOREOVER, AND ASIDE FROM THE ABOVE CONSIDERATIONS AND CONCLUSIONS, I
FIND THAT THE RESPONDENT PRIOR TO IMPLEMENTATION WAS AT LEAST UNDER AN
OBLIGATION TO BARGAIN OVER THE IMPACT AND MANNER OF IMPLEMENTATION OF
ITS ALLEGED NON-NEGOTIABLE DECISIONS WITH RESPECT TO THE STARTING AND
QUITTING TIMES AND LUNCH HOURS OF THE NEWLY ESTABLISHED SHIFTS. I
FURTHER FIND, BASED UPON THE RECORD AS A WHOLE, THAT RESPONDENT FAILED
TO FULFILL THIS OBLIGATION AND THUS COMMITTED AN ADDITIONAL VIOLATION OF
SECTIONS 7116(A)(1) AND (5).
THE RECORD AMPLY SUPPORTS THE CONCLUSION THAT THE INSTITUTION OF THE
NEW SHIFTS AT SAN FRANCISCO AND HONOLULU OCCURRED PRIOR TO COMPLETION OF
NEGOTIATIONS AND THE REACHING OF AN IMPASSE AS DEFINED IN THE ACT. IN
THIS CONNECTION IT IS NOTED THAT WITH THE HELP OF THE FEDERAL MEDIATOR
VARIOUS AGREEMENTS WERE NEGOTIATED SHORTLY, IF NOT IMMEDIATELY, AFTER
THE IMPLEMENTATION OF THE NEW SHIFTS. IN THE ABSENCE OF SOME
UNANTICIPATED OR EXTRAORDINARY CHANGE IN EVENTS, SUCH CONCESSIONS AND
AGREEMENTS MADE ALMOST IMMEDIATELY AFTER IMPLEMENTATION NEGATE THE
EXISTENCE OF AN IMPASSE AT THE TIME THE NEW TOURS OF DUTY WERE
ESTABLISHED. ADDITIONALLY, A LITERAL READING OF THE RULES AND
REGULATIONS OF THE AUTHORITY, PARTICULARLY SECTION 2470.2(E.) MAKES IT
CLEAR THAT EXHAUSTION OF THE EFFORTS OF THE FEDERAL MEDIATION SERVICE IS
A CONDITION PRECEDENT TO THE DECLARATION OF AN IMPASSE. /8/
HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF
THE STATUTE BY INSTITUTING NEW TOURS OF DUTY WITHOUT FIRST NEGOTIATING
WITH THE UNION CONCERNING THE STARTING AND QUITTING TIMES AND LUNCH
HOURS OF SUCH NEW TOURS OF DUTY AS WELL AS THE IMPACT AND DATE OF
IMPLEMENTATION OF SUCH NEW STARTING AND QUITTING TIMES AND LUNCH HOURS,
I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER DESIGNED TO
EFFECTUATE THE PURPOSES OF THE STATUTE. /9/
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C.SECTION 7118(A)(7)(A), AND
SECTION 2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R.SECTION
2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE
TREASURY, UNITED STATES CUSTOMS SERVICE REGION VIII, SAN FRANCISCO,
CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING ANY CHANGES IN TOURS OF DUTY WITHOUT FIRST ALLOWING
THE NATIONAL TREASURY
EMPLOYEES UNION TO NEGOTIATE THE STARTING AND QUITTING TIMES AND
LUNCH HOURS OF SUCH NEW TOURS
OF DUTY.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL LABOR-MANAGEMENT RELATIONS STATUTE:
(A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, MEET AND
NEGOTIATE, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, THE STARTING AND QUITTING
TIMES AND LUNCH HOURS OF
THE NEWLY ESTABLISHED TOURS OF DUTY. TO THE EXTENT THAT ANY FINAL
AGREEMENT REACHED BY THE
PARTIES RESULTS IN DIFFERENT STARTING AND QUITTING TIMES AND LUNCH
HOURS THAN THOSE
UNILATERALLY ESTABLISHED ON NOVEMBER 4 AND 13, 1979, MAKE WHOLE ANY
UNIT EMPLOYEE FOR ANY
OVERTIME LOSS HE OR SHE MIGHT HAVE SUFFERED SINCE SUCH DATES.
(B) POST AT THE HONOLULU AND SAN FRANCISCO INTERNATIONAL AIRPORTS
COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL
LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
REGIONAL COMMISSIONER,
UNITED STATES CUSTOMS SERVICE REGION VIII, AND SHALL BE POSTED AND
MAINTAINED FOR 60
CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER
PLACES WHERE NOTICES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL
BE TAKEN TO INSURE THAT
SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: DECEMBER 15, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE ANY CHANGE IN TOURS OF DUTY WITHOUT FIRST ALLOWING
THE NATIONAL TREASURY EMPLOYEES UNION TO NEGOTIATE, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, THE STARTING AND QUITTING TIMES AND
LUNCH HOURS OF SUCH NEW TOURS OF DUTY. WE WILL NOT IN ANY LIKE OR
RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE. WE WILL UPON REQUEST MEET AND NEGOTIATE WITH THE
NATIONAL TREASURY EMPLOYEES UNION, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, CONCERNING THE STARTING AND QUITTING TIMES AND LUNCH HOURS
OF THE NEWLY ESTABLISHED TOURS OF DUTY. IF ANY FINAL AGREEMENT REACHED
BY THE PARTIES RESULTS IN DIFFERENT STARTING AND QUITTING TIMES AND
LUNCH HOURS, TO THE EXTENT CONSONANT WITH APPLICABLE LAW, REGULATIONS
AND DECISIONS OF THE COMPTROLLER GENERAL, WE WILL MAKE ANY UNIT EMPLOYEE
WHOLE FOR ANY OVERTIME LOSS HE OR SHE MIGHT HAVE SUFFERED SINCE THE
UNILATERAL INSTITUTION OF THE NEW TOURS OF DUTY ON NOVEMBER 4 AND 13,
1979. DATED: . . . BY: REGIONAL COMMISSIONER, U.S. CUSTOMS SERVICE
REGION VIII
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 QUESTION CONCERNING THIS NOTICE, OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
REGION IX, WHOSE ADDRESS IS: 450 GOLDEN GATE AVENUE, ROOM 11408, P.O.
BOX 36016, SAN FRANCISCO, CA 94102.
--------------- FOOTNOTES$ ---------------
/1/ MORE SPECIFICALLY, IN ADDITION TO EXCEPTIONS BY EACH PARTY, THE
CHARGING PARTY FILED A "BRIEF IN RESPONSE TO THE RESPONDENT'S
OBJECTIONS," THE GENERAL COUNSEL FILED AN "OPPOSITION TO THE
RESPONDENT'S EXCEPTIONS," AND THE RESPONDENT FILED "CROSS EXCEPTIONS OF
RESPONDENT ACTIVITY AND OPPOSITION TO EXCEPTIONS" FILED BY THE GENERAL
COUNSEL AND CHARGING PARTY. ADDITIONALLY, THE GENERAL COUNSEL FILED A
MOTION TO STRIKE THOSE PORTIONS OF RESPONDENT'S CROSS-EXCEPTIONS WHICH
RELY ON MATTERS NOT CONTAINED IN THE RECORD OF THE PROCEEDINGS. THE
CHARGING PARTY FILED A MOTION TO STRIKE RESPONDENT'S POST-HEARING BRIEF
AND SUPPORTING MEMORANDUM, AND THE RESPONDENT FILED A RESPONSE AND
MEMORANDUM IN OPPOSITION TO THE MOTION TO STRIKE PORTIONS OF
RESPONDENT'S POST-HEARING BRIEF. THE MOTIONS TO STRIKE ARE HEREBY
DENIED. THE AUTHORITY HAS RELIED ONLY ON MATTERS CONTAINED IN THE
RECORD IN DECIDING THESE CASES.
/2/ FOR A SIMILAR RESULT, SEE UNITED STATES CUSTOMS SERVICE, REGION
V, NEW ORLEANS, LOUISIANA, 9 FLRA NO. 15 (1982).
/3/ THE AUTHORITY DOES NOT ADOPT THE JUDGE'S RECOMMENDED ORDER,
HOWEVER, TO THE EXTENT THAT IT WOULD REQUIRE THE RESPONDENT TO GIVE
RETROACTIVE EFFECT TO WHATEVER FINAL AGREEMENT THE PARTIES REACH
CONCERNING THE STARTING AND QUITTING TIMES AND LUNCH HOURS OF THE NEWLY
ESTABLISHED TOURS OF DUTY AT THE HONOLULU AIRPORT (IF DIFFERENT FROM
THOSE PREVIOUSLY ESTABLISHED UNILATERALLY BY THE RESPONDENT) BY MAKING
ANY UNIT EMPLOYEE WHOLE FOR OVERTIME THAT MAY HAVE BEEN LOST SINCE THE
DATE ON WHICH THE RESPONDENT ESTABLISHED THE NEW TOURS OF DUTY. SUCH AN
ORDER WOULD BE INCONSISTENT WITH THE AUTHORITY'S CONCLUSION THAT A
STATUS QUO ANTE REMEDY IS UNWARRANTED IN THE CIRCUMSTANCES OF THIS CASE,
AND, FURTHER, WOULD BE SPECULATIVE IN TERMS OF IDENTIFYING THE TOURS OF
DUTY TO WHICH EACH EMPLOYEE MIGHT HAVE BEEN ASSIGNED AND WHICH
EMPLOYEES, IF ANY, MIGHT HAVE BEEN ASSIGNED OVERTIME.
ADDITIONALLY, INASMUCH AS AN AGREEMENT WAS REACHED BETWEEN THE
PARTIES WITH REGARD TO THE SAN FRANCISCO AIRPORT THE DAY AFTER
IMPLEMENTATION OF THE NEW TOURS OF DUTY, IT IS UNNECESSARY TO ORDER
NEGOTIATIONS AS TO THAT FACILITY.
/4/ GENERAL COUNSEL AND CHARGING PARTY'S MOTIONS TO STRIKE PORTIONS
OF RESPONDENT'S POST HEARING BRIEF ARE HEREBY DENIED. TO THE EXTENT
RESPONDENT'S COUNSEL MAY HAVE RELIED UPON FACTS NOT APPEARING IN THE
RECORD, ANY ARGUMENT PREDICATED THEREON WAS NOT CONSIDERED BY THE
UNDERSIGNED IN REACHING THE CONCLUSIONS SET FORTH HEREIN.
/5/ THE FACTS SET FORTH HEREINAFTER ARE IN THE MAIN BASED UPON THE
STIPULATIONS OF THE PARTIES. MOST OF THE ORAL TESTIMONY CONTAINED IN
THE RECORD IS PRIMARILY A REPETITION OF THE STIPULATIONS OR
CLARIFICATION THEREOF.
/6/ INASMUCH AS THE RECORD IS BARREN OF ANY PROBATIVE EVIDENCE
SUPPORTING RESPONDENT'S ASSERTIONS IN THIS LATTER REGARD, I FIND SUCH
DEFENSE TO BE WITHOUT MERIT. MOREOVER, AND IN ANY EVENT, I FIND THAT
RESPONDENT WAIVED ANY DEFENSE IT MAY HAVE ENJOYED IN THIS REGARD WHEN IT
ISSUED NOTICE OF ITS INTENDED CHANGES IN TOURS OF DUTY, ETC., TO NTEU'S
REGIONAL FIELD REPRESENTATIVE AND THEN PROCEEDED TO ENTER UNRESTRICTED
NEGOTIATIONS, ALBEIT UNSUCCESSFULLY, WITH SUCH REGIONAL FIELD
REPRESENTATIVES.
/7/ WHILE I AM SURE THAT THE UNION DESIRED A RETENTION OF THE STATUS
QUO AT BOTH THE SAN FRANCISCO AND HONOLULU AIRPORTS, THERE IS NO
SHOWING, WHATSOEVER, IN THE RECORD THAT THE UNION AT ANY TIME QUESTIONED
THE RESPONDENT'S RIGHT TO UNILATERALLY ESTABLISH ADDITIONAL SHIFTS. IT
WAS ONLY THE STARTING AND QUITTING TIMES AND THE LUNCH HOUR THAT THE
UNION REQUESTED NEGOTIATIONS THEREON.
/8/ ALTHOUGH NOT ENTIRELY CLEAR FROM THE RECORD, IT APPEARS THAT
RESPONDENT'S POSITION ON THE NON-NEGOTIABILITY OF THE ;NION'S PROPOSALS
CONCERNING STARTING AND QUITTING TIMES AND THE LUNCH HOURS FORECLOSED
ANY MEANINGFUL BARGAINING WITH RESPECT TO IMPACT AND IMPLEMENTATION.
/9/ IN AS MUCH AS NEGOTIATIONS OVER THE SUBSTANCE OF A DECISION TO
CHANGE TERMS AND CONDITIONS OF EMPLOYMENT ENCOMPASSES THE IMPACT AND
IMPLEMENTATION OF SUCH DECISION, THE ORDER SET FORTH INFRA WILL BE
LIMITED TO BARGAINING ON THE SUBSTANCE OF THE DECISION.