[ v15 p309 ]
15:0309(67)CA
The decision of the Authority follows:
15 FLRA No. 67
U.S. CUSTOMS SERVICE
REGION I
(BOSTON, MASSACHUSETTS)
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 1-CA-20325
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action. The
Judge further found that the Respondent had not engaged in certain other
alleged unfair labor practices and recommended dismissal of the
complaint with respect to them. Exceptions to the Judge's Decision were
file; by the Respondent and the General Counsel, and both parties also
filed oppositions to the other's exceptions.
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. /1/ Upon consideration of
the Judge's Decision and the entire record, the Authority hereby adopts
the Judge's findings, conclusions and recommended Order, excepts as
modified below.
In agreement with the Judge, the Authority finds that the statements
made by the Respondent's Montreal Branch Chief to employees concerning
the purported reason for the removal of stools used by customs
inspectors in Montreal, i.e., because of the filing of a grievance by an
employee in the Boston District who had been denied the use of a stool,
tended to coerce and restrain employees in the exercise of rights
guaranteed by the Statute in violation of section 7116(a)(1). In
reaching such a conclusion, the Authority finds that the Montreal Branch
Chief was acting as an agent of the Respondent, at which level there
exists the unit of exclusive recognition involved herein, and that
therefore the Branch Chief's conduct was binding upon the Respondent.
Department of Health and Human Services, Social Security Administration,
Office of Program Operations and Field Operations, Sutter District
Office, San Francisco, California, 5 FLRA 504, 505 n.2 (1981).
The Authority also adopts the Judge's dismissal of that portion of
the complaint alleging a violation of section 7116(a)(1) and (2) of the
Statute on the basis that the removal of stools in Montreal was due to
the filing of the grievance in Boston. The Judge found that the removal
was based solely on the Respondent's desire for uniformity of working
conditions throughout the region even though it was made pursuant to
information disclosed during the grievance proceeding to the effect that
stools were being used by employees in Montreal. In the Authority's
view, the General Counsel has failed to establish that the removal of
stools in Montreal was as a reprisal for the exercise of any protected
activity or was motivated by union animus. Rather, as found by the
Judge, although the Respondent first learned of the apparent
inconsistency in policy regarding the use of stools by customs
inspectors during the grievance proceeding, it took action to remove
stools in Montreal which was motivated solely by the Respondent's desire
for a uniform practice within the region. Under these circumstances,
the Authority finds that the Respondent's action in removing the stools
did not itself constitute a violation of section 7116(a)(1) and (2) of
the Statute.
Finally, with regard to the allegation that the Respondent violated
section 7116(a)(1) and (5) of the Statute by unilaterally removing the
stools without affording the Charging Party an opportunity to bargain
over the decision or its impact and implementation, the Authority finds
that the use of stools constituted a method or means of performing work
within the meaning of section 7106(b)(1) of the Statute. /2/ While the
Judge sought to distinguish the use of stools during "down time," i.e.,
when no passengers were being processed, from their use during such time
as employees were performing their inspectional duties, it appears from
the record that, employees were engaged in inspectional activities even
during periods referred to as "down time." Thus, the record evidence
discloses that even when the inspectors were not actually processing
passengers or performing physical inspections of passengers' baggage,
they were nonetheless required to be at their duty stations to observe
passengers approaching the inspection area. Where there were no
passengers to be processed, employees were permitted to leave their duty
stations and could avail themselves of an officer's lounge or other
facilities at the airport. The record further indicates that, in
addition to observing approaching passengers, the inspectors were
required to ensure that no parcels were being moved along the floor and
outside the employees' visual range, a function which could not be
accomplished while seated, and also to be able to react immediately to
potentially dangerous situations without being hindered by the presence
of stools in the baggage inspection area. On this basis, the Authority
finds that the use of stools by employees engaged in inspectional duties
concerned a method or means of performing such work at all times
relevant herein and that therefore the Activity's decision to remove
them was outside the required scope of bargaining under section
7106(b)(1) of the Statute. /3/ Of course, the Respondent was obligated
to notify the Charging Party in advance of the elimination of the stools
and to afford the Charging Party an opportunity to bargain over the
impact and implementation of such a change. The record reveals that the
Charging Party was so notified, but failed to request bargaining over
its impact and implementation, seeking instead to bargain over the
decision itself by proposing that the use of stools be retained.
Accordingly, the Respondent cannot be found to have violated section
7116(a)(1) and (5) in this respect and this aspect of the complaint
shall be dismissed.
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 I, Boston,
Massachusetts shall:
1. Cease and desist from:
(a) Making statements which tend to interfere with, restrain or
coerce its employees in the exercise of their rights assured by
the Federal Service Labor-Management Relations Statute.
(b) In any other like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at the Montreal Pre-Clearance Station 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 Commissioner of Region I, or his designee, and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 1-CA-20325
insofar as it alleges any other violations of the Statute be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 18, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 make statements which tend to interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL NOT in any other like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights
assured by the Statute.
(Activity)
By: (Signature) (Title)
Dated: . . .
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 questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region I, Federal Labor Relations Authority, whose address is:
441 Stuart Street, 9th Floor, Boston, Massachusetts 02116 and whose
telephone number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Martin J. Ward, Esquire
Ms. Lorraine Iovanni
For the Respondent
Richard D. Zaiger, Esquire
James R. Collins, Esquire
For the General Counsel
Mr. William P. Milton, Jr.
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.
7101, et seq. and the Rules and Regulations issued thereunder, Fed.
Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46, No. 154, August 11,
1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to an amended charge first filed on July 14, 1982, by the
National Treasury Employees Union, (hereinafter called the NTEU or
Union), a Consolidated Complaint and Notice of Hearing was issued on
October 29, 1982, by the Regional Director for Region I, Federal Labor
Relations Authority, Boston, Massachusetts. /4/ The Complaint alleges
that the U.S. Customs Service, Region I, Boston, Massachusetts,
(hereinafter called the Customs Service or Respondent), violated
Sections 7116(a)(1), (2) and (5) of the Federal Service Labor-Management
Relations Statute, (hereinafter called the Statute), by virtue of its
actions (1) in removing the stools used by employees at the Montreal
Pre-Clearance Station in retaliation for the filing of a grievance, and
(2) failing to give the Union advanced notice of its decision to remove
the stools and an opportunity to bargain over both the substance of the
change and the impact and implementation of the change. At the hearing,
over the objection of Counsel for the Respondent, the General Counsel
was granted permission by the undersigned Administrative Law Judge to
amend the complaint to further allege that the Respondent committed an
independent 7116(a)(1) violation by virtue of the action of one of its
supervisors in telling unit employees that the stools were removed
because of problems caused by the filing of a grievance. /5/
A hearing was held in the captioned matter on January 19, 1983, in
Boston, Massachusetts. All parties were afforded the full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues involved herein. The General Counsel and
the Respondent submitted post-hearing briefs on March 21, 1983, which
have been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, and the stipulations of the parties, I
make the following findings of fact, conclusions and recommendations.
Findings of Fact
The Union is the exclusive bargaining representative of Respondent's
non-professional employees assigned to Respondent's Region I which
includes among others, the custom inspectors working at the Boston,
Massachusetts and Montreal, Canada, airports.
Mr. Edward Pacewicz, an inspector assigned to Region I's Boston,
Massachusetts office, on an unspecified date received a job related
injury which forced him out on sick leave for an unspecified period of
time. Upon his return to work Mr. Pacewicz was assigned a number of
jobs which did not involve standing on his feet for long periods of
time. Subsequently, Mr. Pacewicz was assigned to work on the passenger
belts at Logan Airport in Boston, where he inspected the hand baggage,
etc. of incoming passengers from foreign countries. After a period of
time Mr. Pacewicz presented a doctor's certificate which indicated that
he should not be on his feet for a long period of time and requested the
use of a stool while he was performing his inspectional duties at Logan
Airport. Respondent agreed to allow him to use a stool for a two week
trial period with the understanding that the practice of using stools
while performing the duties of a customs inspector would be reassessed
at the end of such period.
At the end of the two week trial period, according to the credited
testimony of Mr. John Linde, District Director of Customs for the Boston
District, it was determined that the use of stools while performing the
job of a custom inspector was not a wise practice since it might hamper
the reactions of the inspectors to emergency situations, such as
discovering weapons or narcotics. According, to Mr. Linde there have
been occasions when passengers have attempted to swallow small amounts
of narcotics which inspectors have discovered in their possession.
Additionally, passengers have attempted to push small packages or
baggage along the outside of the baggage belts with their feet. If an
inspector was sitting down he would not be able to observe or see such a
maneuver.
Upon the basis of the above conclusions, the Respondent denied Mr.
Pacewicz the further use of a stool while performing his duties as a
customs inspector. Mr. Pacewicz then filed a grievance which proceeded
to the third step of the grievance procedure. In support of its
position on the grievance, the Union, in the third step of the grievance
procedure, pointed out that stools were used by custom inspectors
working in the clearance area of the Montreal airport.
After the third-step grievance meeting had been held on April 13,
1982, Ms. Lorraine Iovanni, an Employee Relations Specialist, who had
been in attendance at the grievance meeting, telephoned Mr. Hubert
Papelian, Branch Chief in Montreal, informed him of the grievance
meeting and inquired whether it was a fact that stools were being used
in Montreal. Mr. Papelian informed Ms. Iovanni that stools were being
used in Montreal.
Thereafter, Ms. Iovanni contacted Mr. Edward Dunford, Regional
Director of Inspection and Control, who was Mr. Papelian's supervisor,
and advised him of the grievance concerning the refusal to allow Mr.
Pacewicz to utilize a stool and the fact that she had verified that
stools were being used in Montreal. Mr. Dunford then contacted Mr.
Papelian for purposes of further verifying the fact that stools were
being used in Montreal. He informed Mr. Papelian that the reason for
his inquiry was that a grievance concerning the use of stools had been
filed in Boston.
Mr. Dunford then met with Mr. William Griffin, Region I Commissioner,
and discussed the grievance and the fact that stools were being utilized
in Montreal. Mr. Dunford recommended that the stools be taken out of
Montreal so that there would be a uniform policy throughout the Region.
Mr. Griffin agreed with the recommendation of Mr. Dunford.
On April 26, 1982, Mr. Dunford called Mr. Papelian and informed him
that the Regional Commissioner had directed him to instruct Mr. Papelian
to remove the stools from the Montreal Inspection area.
On April 27, 1982, Mr. Papelian sent a letter to Mr. Craig Jehle,
Secretary of NTEU Chapter 148 which read as follows:
This letter is to notify you in accordance with Article 37 of
the National Agreement that effective May 2, 1982, the use of
stools in the Customs work areas during inspection or down time
will not be permitted. This action is taken in order to bring
this location into conformity with the standard practice at all of
the other airports within Region I. /6/
Subsequently, in response to a letter from the Union, Respondent by
letter dated May 4, 1982, agreed to delay the removal of the stools
until May 18, 1982. The letter went on to remind the Union that "if the
Union wishes to negotiate the implementation impact on proposed changes,
the Union must submit written proposals to Management."
On May 12, 1982, Mr. Jehle, in his capacity as Secretary-Treasurer of
the Union wrote a letter to Mr. Papelian which read as follows:
This letter is to notify you that in accordance with Article 37
of the National Agreement that N.T.E.U. wishes to submit a
proposal concerning the change of status quo and stools in the
Customs work area. N.T.E.U. proposes that stools remain for use
at Montreal International Airport.
On May 12, 1982 the parties met for purposes of negotiation. The
Union's proposal was a reiteration of its May 12th letter from Mr. Jehle
to Mr. Papelian. The Respondent refused to accept the Union's proposal
and maintained that the stools would be removed. At the close of the
hearing both parties acknowledged that they were at impasse.
On May 13, 1982, Mr. Jehle wrote a letter to Mr. Papelian which read
as follows:
In reference to your proposal that stools be removed from the
Customs work areas on May 18, 1982, please be advised that an
impasse has been reached and the matter referred to the Federal
Mediation and Conciliation Services by N.T.E.U. N.T.E.U. expects
that the proposal will not be implemented until the satisfactory
completion of mediation. In the absence of mutual agreement,
implementation before an impasse order or decision has been
received will constitute grounds for an unfair labor practice
charge.
On May 17, 1982, the Union requested the assistance of the Federal
Mediation and Conciliation Service. Management refused to get involved
with the Federal Mediation and Conciliation Service and on May 18, Mr.
Papelian wrote Mr. Jehle a letter which read as follows:
This is to notify you that it is my view that your proposal
presented at our meeting of May 12, 1982, asking that the stools
remain in the Customs work area is non-negotiable. Accordingly,
the stools are to be removed effective this date.
According to the stipulation of the parties, the stools were removed
from the Customs area in the Montreal airport on May 18, 1982.
Mr. Jehle testified that on two occasions, the first being during the
period April 27-May 12, 1982, and the second being during the meeting of
May 12, 1982, Mr. Papelian attributed the removal of the stools to the
Union's action in filing the grievance in Boston. Thus, according to
Mr. Jehle, during the period between April 27-May 12, 1982, at a time
when he and Mr. Papelian were discussing the stools, "Mr. Papelian
prefaced his remarks by stating and his more or less words were, you
have done this to yourselves, the stools are going to be removed because
of Union activity elsewhere." Further, according to Mr. Jehle, Mr.
Papelian "then went on to say that he had received the word from his
boss to remove the stools, and that even though he didn't want them to
go, and if it were up to him they wouldn't go, he was going to remove
the stools."
On May 12, 1982, during the negotiations and in answer to an argument
put forth by Mr. Jehle, according to the testimony of Mr. Jehle, Mr.
Papelian stated "His boss had told him that the stools were going to go
because of Union activity elsewhere". In response to a clarifying
question from the undersigned administrative law judge concerning Mr.
Papelian's alleged reference to Union activity, Mr. Jehle stated, that
Mr. Papelian stated "not directly": "His words were, because of the
grievance in Boston the stools were going to go, yes".
According to Mr. Charles Dolan, a customs inspector who was in
attendance at the May 12, 1982, meeting, either Mr. Papelian or Mr.
Machniak, a supervisory inspector, "said that this was a result of what
happened in Boston". Mr. Dolan further testified that "the comment that
I remember being made was, you people brought this on yourselves." Mr.
Dolan acknowledged that he was aware that a grievance had been filed in
Boston and that the subject of stools being used in Montreal was raised.
On cross examination Mr. Dolan acknowledged that the recollection
contained in his pre-trial statement was a more accurate account of what
occurred at the May 12, 1982 meeting. In his pre-trial statement Mr.
Dolan stated "I recall Mr. Papelian mentioning at some point that this,
elimination of the stools, was all your fault, that this was due to one
of your buddies in Boston making noise and screwing all of you people".
Mr. Papelian denies ever attributing the removal of the stools in
Montreal to the grievance filed in Boston. However, he acknowledges
telling or passing on information to the Union "that a grievance had
been raised in Boston by an employee that wished to use the stools, and
he stated that fact that stools were utilized in Montreal".
With respect to the stools, the record evidence indicates that they
were owned by the Respondent and used by the Montreal Customs employees
since 1978. Additionally, according to Mr. Papelian's testimony the
stools were used by a majority of the customs inspectors only during
their "down time", when inspections were not being conducted.
Discussion and Conclusions
The General Counsel takes the position that the Respondent (1)
violated Section 7116(a)(1), (2) and (8) of the Statute by removing the
stools in Montreal in retaliation for the action of Mr. Pacewicz in
filing a grievance, (2) violated Section 7116(a)(1) by informing two
employees that the stools were removed because a grievance was filed in
Boston, and (3) violated Sections 7116(a)(1) and (5) by refusing to
bargain over the substance of the decision to remove the stools.
Respondent, on the other hand, urges dismissal of the complaint in
its entirety. Thus, the Respondent contends (1) that removal of the
stools was based solely on a decision to have uniformity within its
regions, (2) that no coercive statements were made by Mr. Papelian and
(3) that the substance of the decision to remove the stools was a
non-bargainable matter since it related to the technology of doing the
work, and therefore its refusal to bargain thereon was not violative of
the Statute. Additionally, Respondent takes the position that even
assuming that the substance of the decision to remove the stools was a
bargainable matter, the Union waived its right to bargaining thereon
when it limited its original bargaining request on the removal of the
stools to impact and implementation of the change in conditions of
employment.
With respect to the reasons for the removal of the stools from the
Montreal Airport, I find based upon the credited testimony of Mr.
Dunford, whose testimony is corroborated in pertinent part by Ms.
Iovanni, that the removal of the stools from Montreal was pursuant to
information disclosed in the third step of Mr. Pacewicz grievance and
based solely on Respondent's desire to have uniform working conditions
throughout Region I of the Customs Service. /7/ Accordingly, I shall
recommend that the Section 7116(a)(1) and (2) allegation of the
complaint be dismissed in its entirety.
With respect to the alleged Section 7116(a)(1) violation predicated
upon Mr. Papelian's statements to Mr. Jehle and Mr. Dolan, I find, based
upon the credited testimony of Mr. Jehle and Mr. Dolan that Mr. Papelian
couched his statements to them with regard to the removal of the stools
from the Montreal airport in such terms as to give them the impression
that the removal of the stools was attributable to the action of Mr.
Pacewicz in exercising his Statutory right to file a grievance. In such
circumstances, I find that the Respondent violated Section 7116(a)(1) of
the Statute since such action has a tendency to coerce and restrain
employees in the exercise of their rights under the Statute.
Turning now to the remaining allegation of the complaint, i.e.
Respondent's refusal to bargain over the substance of the decision to
remove the stools from the Montreal airport, I find, in agreement with
the General Counsel, that the NTEU did not waive its rights to bargain
with respect to the substance of the decision to remove the stools by
virtue of its letter of May 12, 1982, wherein it cited Article 37 of the
collective bargaining agreement which deals with impact bargaining as
the authority for its request to bargain. Thus, it is noted (1) that
the NTEU was responding to Respondent's notice of the change dated April
27, 1982, wherein the Respondent cited Article 37 as the authority for
its notice, and (2) that both the NTEU's May 12th response and
subsequent demands made during the ensuing negotiations and/or
discussions encompassed requests for substance bargaining, namely
retention of the status quo. In such circumstances it can hardly be
said that the NTEU clearly and unmistakably waived its rights to bargain
over the substance of Respondent's decision to remove the stools. In
reaching the above conclusion I have considered the Authority's decision
in Department of the Treasury, U.S. Customs Service, Region I, Boston,
Massachusetts, and St. Albans, Vermont District Office, 10 FLRA No. 100,
and concluded, contrary to the contention of Respondent, that the facts
therein are clearly distinguishable from those in the instant case.
Having determined that the Union did not waive its rights to
substance bargaining, it must now be decided whether the use of stools
falls within the meaning of "technology, methods, and means of
performing work" as set forth in Section 7106(b)(1) of the Statute. If
so, it is a management right, which is only bargainable at the option of
the Respondent.
In the above connection, the record evidence indicates that the
stools were used by a majority of the employees during their "down
time", i.e. when no passengers were being processed. To the extent that
the stools were being used at a time when no work was being performed it
can hardly be argued that the use of the stools was part of "the
technology, methods, and means of performing work". Accordingly, I find
that the use of stools while on "down time" was a condition of
employment which Respondent could not change without first giving the
NTEU notice and an opportunity to bargain over the substance of its
decision to remove same. By failing to give the Union an opportunity to
bargain over the substance of its decision to remove the stools used by
the customs inspectors during their "down time" Respondent violated
Sections 7116(a)(1) and (5) of the Statute.
However, to the extent the stools were utilized by the customs
inspectors while performing their inspectional duties, I find that the
use of stools falls within the "technology, methods, and means of
performing work", and that Respondent was under no obligation to bargain
with the Union with respect to the substance of its decision to remove
the stools. In reaching this conclusion I rely on the uncontested
testimony of Mr. John Linde, District Director of Customs for the Boston
district concerning the necessity for customs inspectors to be standing
so that they can immediately react and/or respond to emergency
situations such as the discovery of weapons or narcotics and prevent the
use of such weapons or the swallowing of narcotics. Additionally,
according to Mr. Linde, a customs inspector utilizing a stool would not
be able to see a passenger's feet and prevent the passenger from kicking
a parcel along the floor past the inspection belt or counter.
Having concluded that the Respondent (1) violated Section 7116(a)(1)
of the Statute by virtue of the actions of Mr. Papelian in making
statements which gave the impression that the stools were removed from
the Montreal airport because of the filing of the Boston grievance, and
(2) violated Sections 7116(a)(1) and (5) of the Statute by virtue of its
actions in refusing to bargain over the substance of its decision to
remove the stools used by customs inspectors during their down time, it
is hereby recommended that the Authority issue the following order
designed to effectuate the purposes and policies of the Statute.
It is further recommended that all other allegations of the Complaint
be dismissed in their entirety.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that the U.S. Customs Service, Region I, Boston,
Massachusetts, shall:
1. Cease and desist from:
(a) Making statements to unit employees which carry the
impression that changes in conditions of employment were
attributable to, or in retaliation for, the action of a fellow
employee in utilizing his statutory right to file a grievance.
(b) Refusing to bargain with the National Treasury Employees
Union, the exclusive representative of its employees, with respect
to the substance of its decision to remove the stools used by
customs inspectors during periods of time when they were not
performing inspectional duties.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Replace the stools formerly used by the customs inspectors
during their non-inspectional duty time at the Montreal, Canada,
airport and thereafter, upon request by the National Treasury
Employees Union, bargain with the National Treasury Employees
Union concerning the substance of any decision to remove the
stools.
(b) Post at its facilities in Montreal, Canada 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 Region I Commissioner for Customs and
shall be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. The Commissioner shall take reasonable steps to insure
that such 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: May 17, 1983
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
STATUTE
We Hereby Notify Our Employees That:
WE WILL NOT remove the stools used by customs inspectors during the
time they are not performing inspectional duties without giving the
National Treasury Employees Union, the exclusive representative of our
employees, an opportunity to bargain over the substance of any decision
to remove such stools from the inspectional areas at the Montreal,
Canada, airport.
WE WILL NOT make statements to unit employees which carry the
impression that changes in conditions of employment were attributable
to, or in retaliation for, the action of an employee in utilizing his
statutory right to file a grievance.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
WE WILL replace the stools formerly used by customs inspectors during
their non-inspectional duty time at the Montreal, Canada, airport and
thereafter, upon request by the National Treasury Employees Union,
bargain with such Union concerning the substance of any decision to
remove the stools.
(Agency or Activity)
By: (Signature)
Dated: . . .
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 questions 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 One,
whose address is: 441 Stuart Street, Ninth Floor, Boston,
Massachusetts, and whose telephone number is: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ The Authority specifically adopts the Judge's ruling with respect
to granting the General Counsel's motion to amend the complaint at the
hearing. Thus, as found by the Judge, the amendment was based upon the
same factual circumstances underlying the complaint; the Respondent was
apprised prior to the hearing that the General Counsel possessed
information supporting the additional allegation; and, contrary to the
Respondent's claim that it was prejudiced by an inability to secure
rebuttal witnesses, at no time did the Respondent seek a postponement to
secure such witnesses.
/2/ Section 7106(b)(1) provides in pertinent part as follows:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency . . . on the technology,
methods, and means of performing work(.)
/3/ See International Organization of Masters, Mates and Pilots and
Panama Canal Commission, 13 FLRA No. 87 (1983); National Treasury
Employees Union and U.S. Customs Service, Washington, D.C., 8 FLRA 3
(1982); American Federation of Government Employees, AFL-CIO,
International Council of U.S. Marshals Service Locals and Department of
Justice, U.S. Marshals Service, 4 FLRA 384 (1980); and National
Treasury Employees Union and Internal Revenue Service, 6 FLRA 522
(1981).
/4/ Case No. 1-CA-20326, which had been consolidated with the
captioned case, 1-CA-20325, was, upon motion by the General Counsel,
severed from the proceedings at the beginning of the hearing.
Accordingly, paragraphs 6(a), 6(b) and 8(a) were deleted from the
complaint and no testimony thereon was presented at the hearing.
/5/ Counsel for the Respondent in his post hearing brief has renewed
his objections to my action in granting the General Counsel's motion to
amend the outstanding complaint to allege for the first time an
independent 7116(a)(1) violation. Inasmuch as the amendment is based on
the same factual circumstances underlying the original complaint, i.e.,
the removal of the stools for a discriminatory reason, and since,
admittedly, Respondent's counsel was put on notice several weeks prior
to the hearing that General Counsel possessed statements from witnesses
supporting the alleged 7116(a)(1) violation of the Statute. I reaffirm
my original decision that under all the circumstances the amendment was
proper. To the extent that Counsel for the Respondent now contends that
he was prejudiced by the fact that he was unable to secure a necessary
rebuttal witness at such later date, it should be noted that at no time
during the proceeding did Counsel for Respondent request a continuance
to secure such rebuttal witnesses.
/6/ Article 37 of the National Agreement is entitled "Impact
Bargaining" and provides for Impact Bargaining when the Respondent
exercises its "management rights as set forth in the Civil Service
Reform Act."
/7/ Contrary to the contention of the General Counsel I do not
believe that a different conclusion is in order because the decision to
remove the stools occurred shortly after responsible officials of the
Respondent became aware of the grievance. Admittedly, it was the Boston
grievance which first made the Respondent aware of the existence of the
stools in Montreal and prompted Respondent to order the removal of the
stools for purposes of uniformity within Region I. However, while the
timing does make the case suspicious, suspicion alone does not establish
a violation of the Statute. This is particularly true in the absence of
any probative evidence indicating that Mr. Dunford had prior knowledge
of the existence and/or use of the stools in Montreal. In this latter
context, the record evidence, particularly the inquiries by Ms. Iovanni
and Mr. Dunford concerning the actual existence of the stools in
Montreal, belies prior knowledge.