[ v19 p1123 ]
19:1123(126)CA
The decision of the Authority follows:
19 FLRA No. 126
DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
MIAMI, FLORIDA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 4-CA-552
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 alleged in the complaint, 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 filed by the Respondent and the General
Counsel. An opposition to the Respondent's exceptions was filed by the
Charging Party.
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, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, as modified herein.
In Veterans Administration, Veterans Administration Medical Center,
Muskogee, Oklahoma, 19 FLRA No. 122 (1985), issued subsequent to the
Judge's Decision, the Authority concluded that actual representation by
an exclusive representative at a "formal discussion" is sufficient to
demonstrate compliance with the requirement of section 7114(a)(2)(A)
that such an exclusive representative "be given an opportunity to be
represented." On this basis it is concluded, in disagreement with the
Judge, that no violation of section 7116(a)(1) and (8) has been
established concerning the July 9 meeting herein. The Authority also
disagrees with the Judge's conclusion that the Respondent's conduct at
the meeting constituted a bypass of the Union in violation of section
7116(a)(1) and (5) of the Statute. In so finding, the Authority notes
particularly that there is no evidence that management attempted to deal
or negotiate directly with employees on matters properly bargainable
with their representative. See Internal Revenue Service (District,
Region, National Office Units), 19 FLRA No. 48 (1985); Department of
Health and Human Services, Social Security Administration, 19 FLRA No.
56 (1985). Accordingly, the Authority concludes that the complaint
herein should be dismissed in its entirety.
ORDER
IT IS ORDERED that the complaint in Case No. 4-CA-552 be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 30, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 4-CA-552
Marc L. Barbakoff, Esq.
Allan Pedrazas, Esq.
For the Respondent
Linda J. Norwood, Esq.
Edward P. Nichols, Esq.
For the General Counsel For the Respondent
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on November 13,
1980 by the Acting Regional Director for the Federal Labor Relations
Authority, Atlanta Region, a hearing was held before the undersigned on
January 3, 1981 at Coral Gables, Florida.
This case arises under the Federal Service Labor-Management Relations
Statute (herein called the Act). It is based upon a charge filed on
August 14, 1980 by National Treasury Employees Union (herein called the
charging party or Union) against the Department of the Treasury, U.S.
Customs Service, Miami, Florida (herein called the Respondent).
The complaint herein alleged that on or about July 9, 1980, and
during the last week of July 1980, Respondent conducted meetings with
unit employees re personnel policies, practices and other general
conditions of employment. Further, that by such acts Respondent (a)
failed to comply with Section 7114(a)(2)(A) of the Act and refused to
bargain in good faith in violation of 7116(a)(1) and (5) thereof, (b)
failed to comply with Section 7114(a)(2)(A) of the Act and failed to
give the Union an opportunity to be represented at a formal meeting in
violation of 7116(a)(1) and (8) thereof.
Respondent filed an answer dated December 4, 1980 in which it
admitted that on or about July 9, 1980 it conducted a meeting with the
employees, but denied the commission of any unfair labor practices.
Both parties were represented at the hearing, each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter briefs were filed with the
undersigned which have been duly considered. /1/
Upon the entire record in this case, from my observation of the
witnesses and their demeanor, and from all of the testimony and evidence
adduced at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is,
the collective bargaining representative of Respondent's non-supervisory
employees (Customs, Region IV).
2. Respondent employs import specialists, whose principal duties are
to make certain that merchandise entering the country is admissible and
the proper duty thereon is collected. The specialist reviews the entry
documents, and he is obliged to classify and appraise the goods
received. Other tasks performed by these employees include (a) dealing
with the import broker community and handling problems arising with the
broker, (b) checking on reports involving liquidation of entries to make
certain import specialists receives proper notification of entries and
relevant documents, (c) assure that, under Entry Processing System,
coded sheets are furnished the computer operator for programming into
the computer system. /2/
3. The import specialist, together with an assistant, comprises a
team, and there are 11 teams employed by Respondent (9 in the Miami,
Florida District Office). Each such specialist is termed the "team
leader", and these employees report to two supervisory import
specialists. Marshall Chwast and Anthony Russo.
4. Prior to April 1980, /3/ staff meetings were usually held about
once each month although it was not a formalized procedure. In a
memorandum dated April 15 John R. Gray, Director of Classification and
Value Division, announced that a staff meeting would take place every
second Wednesday of each month. /4/ It was also stated therein that all
persons attending "are encouraged to provide topics for discussion prior
to the meeting." Supervisor Chwast testified that the purpose of these
meetings was to discuss items that would affect the work of import
specialists, new policies, new guidelines received from headquarters--
things coming up daily that management needed to discuss with import
specialists.
5. In accordance with the aforesaid announcement supervisors Chwast
and Russo conducted an import specialist meeting on July 9. No
notification was given by management to the Union, nor did Respondent
consider that it was required to afford the bargaining agent an
opportunity to attend the meeting. /5/ In addition to the supervisors
heretofore mentioned, twelve import specialists attended the meeting at
which seventeen subjects were discussed. The topics were, for the most
part, selected by the supervisors, although questions were raised by the
import specialist. The main areas of discussion centered around the
following:
A. Morning Report-- management advised that a report would be kept by
the supervisor of Classification and Value Employees on a bi-weekly
basis, showing those individuals who are at work, on sick and annual
leave, or on formal training. A new form was devised by Director Gray
for this purpose.
B. K Report-- it was stated by Chwast that this report, which each
employee fills out to reflect the type of work he is performing, had not
been completed correctly. The supervisor indicated some of the mistakes
which were made, and advised the employees that Xerox copies of the
report would be sufficient. /6/
C. Accept Program-- This is a program which deals with the
accelerated release of cargo at the port. It is a computer-based system
permitting such acceleration. The criteria to be put into the computer
is prepared by the import specialist for certain merchandise. Since
there had been considerable delay in releasing cargo, Respondent
(through headquarters) decided to change its program in certain
respects. Thus, it was stated by the supervisor at the July 9 meeting
that effective August 1 all items other than quota class merchandise
would be released on a CF 3461 form (Customs Entry). As a result
thereof, the import specialist had to develop new criteria as input into
the system, and this entailed reprogramming the computer. Further, more
merchandise would now be released on the 3461.
D. Samples-- in performing his required duties, the specialist had
occasion to take samples of imported merchandise to make certain that
the classification was right. Each such employee received and returned
his own samples. It was stated at the meeting that henceforth a
particular individual would handle the samples for all teams and take
care of the mailing. This changed the procedure as well as altered the
responsibility for this duty.
E. Training Applications-- employees were informed that those who
attended classes concerning the new Value Law /7/ must fill out
certificates attesting to their attendance.
F. APP-1-Importers Premises-- under the existing rule import
specialists are required to visit importers who bring in large amounts
of merchandise and discuss with them the classification and
appraisement. The supervisors told the specialists to make those visits
at least once a month. Some discussion ensued, as a result of a
question by an employee, re the use of privately owned vehicles, and
management suggested the use of government cars for this purpose.
G. Staffing-- announcements were made re assignment of named
assistants to import specialists. Several of the latter individuals
requested assistance, and Chwast agreed to provide help to the
specialist. This procedure was followed in the past, and did not
represent a departure or change by Respondent.
H. Information Bulletin-- import specialist Allen Vitow suggested
that a bulletin be issued re a countervailing duty on certain textiles
from India. This matter was discussed, and Vitow prepared a draft of
this information bulletin.
6. In addition to discussing the various subjects /8/ at the meeting
on July 9, as heretofore set forth, the supervisors informed the import
specialists at this meeting that a Transaction Value Committee would be
established. The purpose of the Committee was to receive questions from
import specialists re the new Transaction Value Law and act as a forum
for the discussion of problems raised by the statute. After discussion
among the Committee members, the problems would be discussed with the
supervisors. It was not intended that the Committee would implement
policies or issue directives. Past practice called for the supervisors
to declare policy when the effect for new statute was questioned. The
appointed members of the Committee were Allen Vitow, Bob Kramer, and Jo
Bronson Harris-- all bargaining unit employees.
7. In late July the Committee met to discuss an issue raised by
Vitow re the deductibility of freight changes on certain 807 merchandise
(wearing apparel) under the new law. This meeting was conducted by
Chwast. Since the question dealt with considerable merchandise, the
proper application of freight charges involved sizeable revenues. No
solution was reached re the issue raised at the Committee meeting, nor
was any policy announced by management in regard thereto. No other
meetings were held by the Committee.
Conclusions
General Counsel contends that Respondent ran afoul of the Act by
holding formal meetings with its employees without notifying the Union
and affording it an opportunity to be present thereat. By conducting
such sessions, both on July 9 and in late July, the employer allegedly
failed to comply with Section 7114(a)(2)(A) of the Act. Accordingly, it
is contended that Respondent violated Sections 7116(a)(1) and (8)
thereof. Further, General Counsel maintains that such conduct
constituted a bypassing of the Union herein and was therefore violative
of 7116(a)(1) and (5).
Respondent takes the position that the items it discussed at the
meetings are not properly characterized as personnel policies, practices
or conditions of employment. It insists that the July 9 session was a
routine staff meeting and instructional in nature. The employer was
endeavoring, it avers, to clarify certain procedures or practices rather
than institute any changes. Moreover, Respondent notes that much of the
discussion ensued as a result of questions posed by the employees, which
belies any attempt by management to conduct a formal meeting re working
conditions. It is also maintained that since the shop steward was
present at the July 9 meeting and had an opportunity to participate
thereat, the failure to notify the Union officially should not warrant
finding that the employer failed to comply with the statute.
In the public sector an obligation is imposed upon an employer to
notify a bargaining representative and allow it to be present where
certain discussions take place with employees. Under Section
7114(a)(2)(A) the representative must be given an opportunity to be
represented at any formal discussion between the agency and employees
concerning any grievance, personnel policy or practices or other general
conditions of employment. In the case at bar Respondent urges that this
statutory language should apply solely to instances where an agency
seeks to initiate changes in practices or working conditions. However,
such contention was rejected in Internal Revenue Service, Atlanta
District Office, Atlanta, Georgia A/SLMR No. 1014. The Assistant
Secretary in the cited case refused to construe Section 10e of the Order
(the predecessor to Section 7114(a)(2)(A)) as to encompass only
discussions re changes or proposed changes in policies, practices or
working conditions.
While not conceding that it was required to notify the Union of the
meeting on July 9, Respondent asserts the bargaining agent was
represented by the fact that the shop steward, a unit employee, was
present thereat. I do not agree that the presence of Sherri Hurt at the
meeting was a fulfillment of any duty owed by management to give
notification to the Union. As per the stipulation between the parties
herein, the president of the Union, Frank Carelli, was the proper person
to contact re formal meetings between management and the bargaining
agent. There is no showing that shop steward Hurt customarily attended
formal meetings as a union representative. Neither does it appear that
she was present on July 9 as a union official or afforded an opportunity
to participate in that capacity. Thus, I cannot conclude that
representation was afforded the bargaining agent by management merely by
virtue of the presence at the meeting of this employee. See Department
of the Navy, Puget Sound Naval Shipyard, A/SLMR No. 1003.
In determining whether Respondent was obliged to notify the Union of
its meetings, as well as afford it an opportunity to be represented, the
decisive consideration is the nature of the meetings. If the latter
were in fact instructional, or called merely to disseminate information,
it cannot be concluded that formal discussions occurred thereat.
Department of the Treasury, Internal Revenue Service, Chicago District,
Chicago, Illinois, A/SLMR No. 1120.
A. July 9 meeting with employees
Of the seventeen topics discussed at the July 9 meeting, it is clear
that many were concerned with instructing employees in respect to
filling out forms, imparting information to the employees, reminding the
latter of their duties, or dealing with routine requirements on the job.
Included in these categories are, in my opinion, these subjects: (a)
Certificate of Training Applications, (b) July 2, 1980 Federal Register,
(c) Information Bulletin-Countervailing Duty, (d) Missing Documents, /9/
(g) No Change Stamp, (h) Federal Registers, (i) File Room, (j) Supplies.
I do not deem these subjects to be properly embraced within the term
"formal discussions" since, in most instances, they involve ministerial
and clerical functions or reminders from management as to routine
procedures which were in effect at all times. Further, in many
instances the subjects discussed arose by virtue of questions raised by
the import specialists. /10/ As to these situations, the meeting was
not thereby transformed into a formal discussion. See Department of
Health, Education and Welfare, Social Security Administration, BRSI,
Northeastern Program Service Center, A/SLMR No. 957.
The remaining topics discussed at the July 8 meeting were: (a)
Transaction Value Committee, (b) Staffing, (c) K-Report, (d) Accept
Program, (e) APP-1 Importers Premises, (f) Mailing of Samples. General
Counsel insists that the discussion re these items involved either
personnel policies, practices, or conditions of employment, and thus a
failure to notify the appropriate Union official and allow him to attend
was violative of the Act. Accordingly, it is necessary to consider
these subjects in seriatim to determine if this contention is
meritorious.
(a) Transaction Value Committee
General Counsel maintains that the announcement of the
Transaction Value Committee constituted a formal discussion within
the language of Section 7114(a)(2)(A) of the Act. It avers that
the questions submitted to the Committee, and the discussion of
same, involves working conditions.
This particular group was set up by Respondent by virtue of the
new law which might pose special valuation problems for the import
specialists handling 807 wearing apparel. It was established as a
forum to obtain questions from those specialists which would be
presented to the employee-Committee. After the latter unit had
obtained these queries, it was intended that the group would meet
with management. Thus the express purpose of this Committee was
to solicit questions or problems from the employees, who handled
this particular merchandise, which arose as a result of the new
Value Transaction Law. In this posture, I deem the instant case
to be similar to the situation present in National Aeronautics and
Space Administration (NASA), Washington, D.C. and Lyndon B.
Johnson Space Center, Houston, Texas, 3 FLRC 617, FLRC No. 74A-95
(1975). In the cited case meetings were conducted with employees
for the purpose of soliciting opinions as the EEO program of the
agency. The Federal Labor Relations Council found that the
conduct of the agency in evaluating the program, which existed
apart from the collective bargaining relationship, did not require
the employer to permit the presence of the exclusive
representative at said meetings. The Committee herein was formed
to solicit questions and views re the new law. While it may be
true that discussion will ultimately take place in respect to
changes in valuing 807 articles, that stage has not been reached.
Utilizing this vehicle for information-gathering purposes is not
tantamount, in my opinion, to conducting discussion re making
conditions. Accordingly, I find that the establishment of the
Transaction Value Committee was not a formal meeting so as to
require that the Union be afforded an opportunity to be present
thereat.
(b) Staffing
Import Specialist Vitow testified that, at the meeting, it was
stated by a supervisor that certain assistant import specialists
would be switched from one team to another; that this was
standard policy to do so once each year. The minutes of the
meeting further indicate that one specialist asked Chwast for help
on his team since her helper was on sick leave. The supervisor
agreed to provide her with assistance.
While staffing per se is a subject matter which may well
involve working conditions, I am not persuaded that, in the
context presented at the July 9 meeting, the statements re
assignment of assistants may be properly characterized as a formal
discussion thereof. Apart from the fact that such assignment of
assistants was routine in nature, the limited testimony by Vitow
does not reflect that management attempted to engage in a dialogue
re staffing. Neither does it appear that Respondent intended to
either reduce its staff of import specialists or take any action
which would affect their employment. Further, to the extent that
the minutes of the meeting indicate action taken, as comments
made, by management concerning the specialist, they were neither
explicated or amplified by testimony presented on behalf of the
General Counsel. In this posture, I am constrained to conclude
the Union would have little interest to protect by attending the
meeting. Accordingly, I conclude the failure to include the
Bargaining agent to address this issue was not in contention of
Section 7114(a)(2)(A).
(c) K-Report
General Counsel contends that since this report concerned the
productivity of the employee, a discussion of the proper method of
filling it out constituted a formal discussion. /11/ I cannot
agree. The K-Report, which the specialists filled out, indicated
the type of work done on a given month by the individual. No
change was made by Respondent in respect thereto, nor did
management attempt to discuss the basic information which
comprised the report. Chwast merely informed the import
specialist, as revealed in the minutes and the testimony by Vitow,
that some of the blanks (or boxes) on the form had not been
completed. He further stated the form was being filled out
improperly since the wrong information had been inserted in a
particular box. I construe these comments to be instructional in
nature with no intent by Respondent to by-pass the bargaining
agent. See Department of the Treasury, et al. supra. The
discussion re the incorrect completion of forms is not, in my
opinion, equitable with an attempt by management to discuss the
type of work performed by employees or to change the contents
thereof. An explanation how to fill out forms, or why there were
incorrections in so doing, is not embraceable within the terms
"formal discussion" of working conditions. Hence, I conclude
Respondent was not obliged to afford the Union to be present doing
the instructions re the K-Report.
(d) Accept Program
Respondent takes the position that the change in the Accept
Program dealt with the utilization of a Customs form, and that it
did not affect the work of the unit employees. It argues that the
presence of the Union representative is not required at the
meeting despite the announcement by the supervisor in respect to
the change.
Record facts, however, do reflect that the change in the
program did have an impact upon the duties imposed upon certain
import specialists. By increasing the number of items to be
released on an accelerated basis, and via the entry form,
management compelled the specialist to reprogram the computer.
New criteria was required for the system, and this impacted upon
the work performed by the particular employees. As such, the
releasing of cargo under the Accept Program in the new fashion did
involve and concern the working conditions of the import
specialist. Announcement by Respondent in this regard was not
merely informative re an established procedure. It was an
admitted change in operation, which I conclude would necessarily
constitute a "formal" discussion of a working condition.
Accordingly, management should have provided the Union herein with
an opportunity to be present during a discussion of the Accept
Program at the meeting on July 9. Its failure to do so is
violative of Sections 7116(a)(1) and (8) of the Act. Further, I
conclude that in meeting with the specialist on the said date and
announcing the change in this program, without notifying the
Union, Respondent bypassed the bargaining representative. /12/ By
so doing, the Respondent has run afoul of Section 7116(a)(1) and
(5) of the Act.
(e) APP-1 Importers Premises
General Counsel contends that the announcement re AAP-1 visits
touched directly on terms and conditions of employment. It
engendered, according to this contention, questions re the use of
personal vehicle and altered the degree of contact had by the
specialist with the public. Under the AAP-1 program visits were
required to be made to the importers' premises when the
merchandise was extremely valuable or could not be transported to
the Customhouse. Such visits by the specialist were, under the
rule, to be made once a month. At the meeting in July 9 the
supervisors reminded the employees to make these visits,
especially since the new value law had been passed. No change was
made by this announcement. Management was requesting that the
employees adhere to the rule which had been in existence. I do
not deem this reminder by the employer to be a formal discussion
re working conditions under Section 7114(a)(2)(A). The fact that,
as urged by General Counsel, questions were raised by employer as
to reimbursement if they used private vehicles does not transform
the meeting into a formal discussion. Department of Health,
Education and Welfare, et al. supra. Therefore, I conclude the
Respondent has not violated the Act by not affording the Union an
opportunity to be present during the discussion of the APP-1
subject.
(f) Mailing of Samples
While the new procedure for handling the return of sample
merchandise accepted by the specialists may not have involved a
startling innovation, it does provide for a change in the duties
of these employees. Thus, each individual is no longer concerned
with the responsibility for handling the samples and returning
some to the brokers. The change in the procedures, whereby one
import specialist will handle this duty for all specialists, must
result necessarily in an impact upon the time utilized, as well as
the tasks performed, by these employees. It seems apparent that
functions of the workers fall within the term "general working
conditions". See Department of the Treasury, Bureau of Alcohol,
Tobacco and Firearms, Midwest Region, Chicago, Illinois, A/SLMR
No. 1112. The meeting on July 9, insofar as it was concerned with
the new procedure re the handling of sample merchandise by the
import specialists, was a formal discussion under the Act. I
conclude that Respondent's failure to offer the Union an
opportunity to be present during such discussion was violative of
Section 7116(a)(1) and (8); that by dealing with the specialists
in this regard without notifying their bargaining representative
constituted a bypassing of the Union in contravention of Sections
7116(a)(1) and (5) thereof.
B. Late July meeting with employees
It is maintained by the General Counsel that the Transaction Value
Committee meeting in the latter part of July was a formal one because
matters affecting terms and conditions of employment were discussed. It
has been concluded herein that the announcement of the formation of this
Committee did not require the presence of the Union herein. This
conclusion was bottomed on the fact that management, in the course of
soliciting questions re the new Value Law, was not actually discussing
working conditions and thus no obligation existed to afford the
bargaining agent an opportunity to be present. The meeting of the
Committee with management, occasioned by Vitow, was an extension of the
Committee's formation. It dealt with questions raised by Vitow and
others as to the applicability of the new law-- the issue of freight
changes thereunder. In my opinion the discussion re the Value Law with
the Committee did not transfer the meeting into one involving working
conditions. It does not appear that management sought to introduce
changes in the duties of employees. Neither does the record reflect
that, at this point, it had embarked upon a consideration of any new
procedures for handling this merchandise. The meeting was confined to
questions as to the application of the new law, and I do not conclude
that it had reached the 'formal discussion' stage. Accordingly, I find
that Respondent did not contravene the Act by meeting with the Committee
in late July re the new Value Law.
Having concluded that Respondent violated Sections 7116(a)(1), (5)
and (8) of the Act, it is recommended that the Authority issue the
following order:
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 Department of the Treasury, U.S.
Customs Service, Region IV, Miami, Florida shall:
1. Cease and desist from:
(a) Conducting formal discussions between management and unit
employees, or their representatives, concerning personnel policies
and practices, or other matters affecting general working
conditions of employees in the unit, without notifying and
affording National Treasury Employees Union, the exclusive
representative of its employees, or any other exclusive
representative of its employees, the opportunity to be represented
at such discussions.
(b) Interfering with, restraining, or coercing the employees in
the exercise of their rights assured by the Order by failing to
notify and afford National Treasury Employees Union, or any other
exclusive representative of its employees, the opportunity to be
represented at formal discussions between management and
employees, or other matters affecting general working conditions
of employees in the unit.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of 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 Statute:
(a) Notify the National Treasury Employees Union, of and afford
it the opportunity to be represented at formal discussions between
management and unit employees, as their representatives,
concerning personnel policies and practices, or other matters
affecting the general working conditions of employees in the unit.
(b) Post at its facilities at the U.S. Customs Service, Miami,
Florida 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, U.S. Customs Service, Miami, Florida, and shall be
posted and maintained by him for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. The Regional 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 what steps have been
taken to comply herewith.
WILLIAM NAIMARK
Administrative Law Judge
Dated: June 5, 1981
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 conduct formal discussions between management and unit
employees, or their representatives, concerning personnel policies and
practices or other matters affecting general working conditions of
employees in the unit, without notifying and affording the National
Treasury Employees Union, the exclusive representative of our employees,
or any other exclusive representative of our employees, the opportunity
to be represented at such discussions. WE WILL NOT interfere with,
restrain, or coerce unit employees in the exercise of their rights
assured by the Order by failing to notify and afford the National
Treasury Employees Union, or any other exclusive representative of our
employees, the opportunity to be represented at formal discussions
between management and employees, or employee representatives concerning
personnel policies and practices, or other matters affecting general
working conditions of employees in the unit. 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 notify the National Treasury Employees
Union, of and afford it the opportunity to be represented at, formal
discussions between management and unit employees or their
representatives, concerning personnel policies and practices, or other
matters affecting general working conditions of employees in the unit.
(Agency or 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 the employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Region IV, for the Federal Labor Relations Authority, whose address is:
Suite 501, 1776 Peachtree Street, N.W., North Wing, Atlanta, Georgia
30309, and whose telephone number is: (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ At the hearing Respondent moved to dismiss the complaint based on
the contentions that (a) the allegations therein are vague and unclear,
merely stating that meetings were conducted by Respondent with unit
employees; (b) it was denied due process since the Regional Director
refused Respondent a request for a subpoena of the statements taken
during the investigation of this case; (c) the Chief Administrative Law
Judge wrongfully denied Respondent's request for interrogatories as to
the witnesses and the statements taken during the investigation. The
motion was denied by the undersigned. While the complaint might have
been pleaded with better specificity, paragraphs 9, 10, and 11 do
apprise Respondent of the facts which are alleged to be violative of the
Act, and I am satisfied the complaint is sufficient. In view of Section
2423.7(d) of the Rules and Regulations, I do not agree with Respondent's
view that it has been denied due process by not obtaining the
investigating data obtained by the regional office. Neither do I
conclude the ends of justice would be denied by ordering interrogatories
re such information under 2423.19(e) thereof.
/2/ These particular duties are performed by certain import
specialists in addition to their regular tasks.
/3/ Unless otherwise indicated, all dates hereinafter mentioned occur
in 1980.
/4/ The staff meetings in this Classification and Value Division were
discontinued in August.
/5/ Record facts reveal that unit employee Sherri Hurt, who was shop
steward, attended the meeting. However, the parties stipulated at the
hearing that Frank Carelli, as president of the local union, would have
been the proper person to contact re formal meetings; that he was not
informed of the July 9 meetings in the Classification and Value
Division; nor was he notified of the meeting later that month of the
Transaction Value Committee.
/6/ This report is statistical in nature. Each team member is
required to fill it out, and thereafter the figures are consolidated for
submission to headquarters.
/7/ Trade Agreement Act of 1979, P.L. 96-39 which set forth a new
method in valuing merchandise to arrive at the duty to be paid by the
importer.
/8/ Other topics mentioned at the meeting included (a) supplies, (b)
file room entries being lost or misplaced, (c) unauthorized use of
no-change stamp, (d) distribution of Federal Registers, and (e) missing
documents. Most of these matters arose due to complaint from the
employees in attendance.
/9/ Employees raised the question as to whether brokers and import
specialists were adhering to the proper procedures for presenting
missing documents to Customs, as set forth in an Information Bulletin.
The decision to reissue the bulletin as a reminder does not, I conclude,
transform this exchange into a "formal" discussion.
/10/ Included within the 17 topics, and numbered as XI in the
minutes, was a request by an employer that supervision of C&V inform
Headquarters and Regional Operations of the Miami C&V opinion re new
policy on valuation. Chwast's agreement to check this out does not, in
my opinion, institute a formal discussion under the Act.
/11/ In support of its position the General Counsel cite a decision
of Administrative Law Judge Devaney, Department of Health, Education and
Welfare, Region VI, SSA, et al. Case No. 6-CA-315 (1981). The cited
case is inapposite since it involves a change instituted by management
as to reporting mileage while attending to official business. The
employer instituted a new method of computing and reporting the
distances travelled by employees.
/12/ While the new procedure for the Accept Program may be deemed a
unilateral change of working conditions, no such allegation appears in
the complaint. Accordingly, I make no finding in this regard.