09:0116(15)CA - Customs Service, Region V, New Orleans, LA and NTEU and NTEU Chapter 168 -- 1982 FLRAdec CA (Authority decision, June 16, 1982)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice complaint under 5 U.S.C. § 7116. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

Customs Service Region V changed New Orleans air support employees’ shifts before bargaining over the impact and implementation of the change was complete. The Authority also found that changing the first shift’s hours without bargaining violated the statute. On the union’s request, it ordered restoration of the first shift’s earlier hours and bargaining over proposed changes. It ordered bargaining over the new second shift’s impact and implementation, but declined to undo that shift.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(5).
• Outcome: Violation found for the first shift’s hours; prior first-shift hours restored on request. No status quo remedy for the new second shift.
• Key point: The remedy restores the first shift’s old hours on request, while the second shift remains subject to impact and implementation bargaining.

Full text (FLRA public release)

[ v09 p116 ]

09:0116(15)CA

The decision of the Authority follows:

9 FLRA No. 15

U.S. CUSTOMS SERVICE
REGION V
NEW ORLEANS, LOUISIANA
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
(NTEU) AND NTEU, CHAPTER 168
Charging Party

Case No. 6-CA-248

DECISION AND ORDER

THE ADMINISTRATIVE LAW JUDGE ISSUED HIS 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 ACTIONS. THEREAFTER, THE GENERAL COUNSEL AND THE
CHARGING PARTY FILED EXCEPTIONS AND THE RESPONDENT FILED
CROSS-EXCEPTIONS AND AN OPPOSITION TO THE CHARGING PARTY'S EXCEPTIONS.
/1/

PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (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 RECOMMENDATIONS EXCEPT AS MODIFIED
HEREIN.

PRIOR TO MARCH 25, 1979, THE EMPLOYEES OF THE NEW ORLEANS AIR SUPPORT
BRANCH (A SUBDIVISION OF THE RESPONDENT) WORKED FROM 8 AM TO 4 PM,
MONDAY THROUGH FRIDAY. IN NOVEMBER 1978, THE RESPONDENT DETERMINED THAT
RESTRUCTURING THE WORKING HOURS OF CERTAIN EMPLOYEES OF THAT BRANCH
WOULD ENABLE IT TO BETTER MEET THE DEMANDS OF ITS MISSION. RESPONDENT
NOTIFIED THE CHARGING PARTY (NTEU) THAT IT INTENDED TO ESTABLISH A
SECOND SHIFT WITH HOURS OF 2 PM TO 10 PM, AND TO CHANGE THE HOURS OF THE
EXISTING SHIFT FOR MOST OF THE PILOTS AND AIR OFFICERS TO 10 AM TO 6 PM.
NTEU DEMANDED NEGOTIATIONS ON THE SUBSTANCE AS WELL AS THE IMPACT AND
IMPLEMENTATION OF THE CHANGE. ALTHOUGH NEGOTIATIONS WERE COMMENCED,
NEITHER AGREEMENT NOR IMPASSE /2/ HAD BEEN REACHED BY MARCH 25, 1979,
WHEN THE CHANGE WAS IMPLEMENTED. THE COMPLAINT ALLEGED IN SUBSTANCE
THAT THE RESPONDENT UNILATERALLY CHANGED THE STARTING AND QUITTING TIMES
FOR EMPLOYEES OF THE AIR SUPPORT BRANCH WITHOUT HAVING AFFORDED NTEU THE
OPPORTUNITY TO BARGAIN ABOUT THE CHANGES AND/OR THE IMPACT AND
IMPLEMENTATION THEREOF, IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF
THE STATUTE.

THE JUDGE FOUND THAT THE "RESPONDENT'S ESTABLISHMENT OF NEW TOURS OF
DUTY, THE DESIGNATION OF THEIR DURATION, I.E., THEIR STARTING AND
QUITTING TIMES, AND THE NUMBER AND TYPES OF EMPLOYEES ASSIGNED THERETO
WERE SO DIRECTLY AND INTEGRALLY RELATED TO THE ACTIVITY'S STAFFING
PATTERNS . . ." AS TO BE DETERMINATIVE THEREOF AND, HENCE, NEGOTIABLE
ONLY AT THE ELECTION OF THE AGENCY. /3/ ACCORDINGLY, HE CONCLUDED THAT
THE RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1) AND (5) OF THE STATUTE
BY FAILING TO AFFORD NTEU AN OPPORTUNITY TO BARGAIN OVER THE DECISION TO
CHANGE STARTING AND QUITTING TIMES. HOWEVER, HE FURTHER FOUND THAT
THERE WAS AN OBLIGATION TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF
SUCH DECISION, AND THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND
(5) OF THE STATUTE BY FAILING TO AFFORD NTEU THE OPPORTUNITY TO
NEGOTIATE FULLY ON PROCEDURES AND APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES
ADVERSELY AFFECTED, WITHIN THE MEANING OF SECTION 7106(B)(2) AND (3) OF
THE STATUTE, /4/ PRIOR TO IMPLEMENTATION OF CHANGES IN TOURS OF DUTY.
IN THIS LATTER REGARD, THE JUDGE FOUND THAT THE RESPONDENT'S INITIAL
WILLINGNESS TO BARGAIN OVER THE HOURS OF THE FIRST SHIFT DID NOT
PRECLUDE THE RESPONDENT FROM LATER DECLINING TO CONTINUE TO NEGOTIATE
OVER THE MATTER.

THE AUTHORITY AGREES WITH THE JUDGE THAT THE DECISION TO ESTABLISH
THE SECOND SHIFT OR TOUR OF DUTY INVOLVED THE "NUMBERS, TYPES, AND
GRADES OF EMPLOYEES OR POSITIONS ASSIGNED TO ANY ORGANIZATIONAL
SUBDIVISION, WORK PROJECT, OR TOUR OF DUTY" WITHIN THE MEANING OF
SECTION 7106(B)(1) OF THE STATUTE /5/ AND, THUS, WAS NEGOTIABLE ONLY AT
THE ELECTION OF THE AGENCY. IN VIEW OF THE RESPONDENT'S ELECTION NOT TO
NEGOTIATE THE MATTER, THE BARGAINING OBLIGATION WITH RESPECT TO THAT
PORTION OF THE DECISION WAS LIMITED TO PROCEDURES TO BE OBSERVED IN
IMPLEMENTATION OF, AND APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED BY, MANAGEMENT'S DECISION TO ESTABLISH THE SECOND SHIFT. WITH
REGARD TO THE DECISION TO CHANGE THE STARTING AND QUITTING TIMES OF THE
PREVIOUSLY EXISTING FIRST SHIFT, HOWEVER, AND IN DISAGREEMENT WITH THE
JUDGE, THE AUTHORITY FINDS THAT THE RESPONDENT HAD A DUTY TO BARGAIN
WITH NTEU CONCERNING SUCH CONDITIONS OF EMPLOYMENT INASMUCH AS THE
RECORD FAILS TO ESTABLISH THAT THE CHANGE EFFECTUATED BY THE RESPONDENT
WAS DETERMINATIVE OF THE NUMBERS, TYPES OR GRADES OF EMPLOYEES OR
POSITIONS ASSIGNED TO A WORK PROJECT OR TOUR OF DUTY, SO AS TO RENDER
THE MATTER NEGOTIABLE ONLY AT THE RESPONDENT'S ELECTION UNDER SECTION
7106(B)(1) OF THE STATUTE. NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
66 AND INTERNAL REVENUE SERVICE KANSAS CITY SERVICE CENTER, SUPRA N. 3.
/6/ THE AUTHORITY THUS FINDS THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1) AND (5) OF THE STATUTE BY NOT AFFORDING NTEU THE OPPORTUNITY
TO NEGOTIATE FULLY ON THE DECISION TO CHANGE THE STARTING AND QUITTING
TIMES OF THE PREVIOUSLY EXISTING SHIFT /7/ AS WELL AS ON THE PROCEDURES
TO BE OBSERVED IN THE IMPLEMENTATION OF, AND APPROPRIATE ARRANGEMENTS
FOR EMPLOYEES ADVERSELY AFFECTED BY, THE DECISION TO ESTABLISH THE
SECOND SHIFT, PRIOR TO THE IMPLEMENTATION OF THE CHANGES IN THE STARTING
AND QUITTING TIMES AND TOURS OF DUTY.

NTEU HAS REQUESTED THAT, AS A REMEDY, THE AUTHORITY ORDER A RETURN TO
THE STATUS QUO ANTE. NOTING PARTICULARLY THAT THE RESPONDENT FAILED TO
MEET ITS DUTY UNDER THE STATUTE TO BARGAIN WITH NTEU CONCERNING THE
DECISION TO CHANGE THE STARTING AND QUITTING TIMES OF THE PREVIOUSLY
EXISTING FIRST SHIFT OR TOUR OF DUTY, THE AUTHORITY FINDS THAT AN ORDER
DIRECTING REINSTATEMENT OF THE PREVIOUSLY EXISTING STARTING AND QUITTING
TIMES OF THE FIRST SHIFT, UPON REQUEST OF NTEU, AND REQUIRING THE
PARTIES TO NEGOTIATE CONCERNING THE STARTING AND QUITTING TIMES THEREOF,
IS NECESSARY TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE. IN
THIS REGARD, AS THE AUTHORITY MORE FULLY STATED IN SCOTT AIR FORCE BASE
(SUPRA N. 7) IN SIMILARLY ORDERING A RESTORATION OF THE PREEXISTING
STARTING AND QUITTING TIMES WHERE MANAGEMENT HAD FAILED TO NOTIFY AND
BARGAIN WITH THE EXCLUSIVE REPRESENTATIVE CONCERNING THE DECISION TO
CHANGE ESTABLISHED CONDITIONS OF EMPLOYMENT, SUCH CONCLUSION IS
SUPPORTED BY THE LITERAL LANGUAGE AND THE LEGISLATIVE HISTORY OF THE
STATUTE AND IS NECESSARY IN ORDER TO AVOID RENDERING MEANINGLESS THE
MUTUAL OBLIGATION UNDER THE STATUTE TO NEGOTIATE CONCERNING CHANGES IN
CONDITIONS OF EMPLOYMENT. HOWEVER, THE AUTHORITY FURTHER FINDS THAT A
STATUS QUO ANTE REMEDY IS NOT WARRANTED HEREIN WITH RESPECT TO THE
IMPACT AND IMPLEMENTATION OF (AS OPPOSED TO THE DECISION TO CREATE) THE
NEWLY ESTABLISHED SECOND SHIFT. THUS, BALANCING THE NATURE AND
CIRCUMSTANCES OF THE VIOLATION AGAINST THE DEGREE OF DISRUPTION IN
GOVERNMENT OPERATIONS THAT WOULD BE CAUSED BY SUCH A REMEDY, AND TAKING
INTO CONSIDERATION THE VARIOUS FACTORS SET FORTH IN FEDERAL CORRECTIONAL
INSTITUTION, 8 FLRA NO. 111 (1982), THE AUTHORITY CONCLUDES THAT AN
ORDER REQUIRING THE RESPONDENT TO BARGAIN UPON REQUEST ABOUT IMPACT AND
IMPLEMENTATION WILL BEST EFFECTUATE THE PURPOSES AND POLICIES OF THE
STATUTE. IN THIS REGARD, THE AUTHORITY NOTES PARTICULARLY THAT THE
RESPONDENT ACTED WITHIN ITS RESERVED RIGHTS UNDER SECTION 7106(B)(1) OF
THE STATUTE IN ESTABLISHING THE NEW SHIFT OR TOUR OF DUTY, AND THAT, AS
A NEW SHIFT, THERE WERE NO PREEXISTING STARTING AND QUITTING TIMES WHICH
THE AUTHORITY MAY 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 REQUIRED OR
NECESSARY TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE
CONCERNING THE NEW SHIFT.

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 V, NEW
ORLEANS, LOUISIANA, SHALL:

1. CEASE AND DESIST FROM:

(A) INSTITUTING ANY CHANGE IN THE STARTING AND QUITTING TIMES OF THE
EXISTING FIRST SHIFT AT THE NEW ORLEANS AIR SUPPORT BRANCH WITHOUT
AFFORDING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER
168, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, THE
OPPORTUNITY TO NEGOTIATE WITH RESPECT TO THE CHANGE.

(B) ESTABLISHING ANY NEW SHIFT AT THE NEW ORLEANS AIR SUPPORT BRANCH
WITHOUT AFFORDING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU,
CHAPTER 168, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, A
REASONABLE OPPORTUNITY TO NEGOTIATE CONCERNING THE PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH A CHANGE AND ON APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE CHANGE.

(C) 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 OF THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND
NTEU, CHAPTER 168, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS
EMPLOYEES, REESTABLISH AS THE STARTING AND QUITTING TIMES OF THE FIRST
SHIFT AT THE NEW ORLEANS AIR SUPPORT BRANCH THOSE IN EXISTENCE PRIOR TO
MARCH 25, 1979, AND AFFORD THE NATIONAL TREASURY EMPLOYEES UNION (NTEU)
AND NTEU, CHAPTER 168, THE OPPORTUNITY TO NEGOTIATE WITH RESPECT TO ANY
PROPOSED CHANGES THERETO.

(B) UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
UNION (NTEU) AND NTEU, CHAPTER 168, THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF ITS EMPLOYEES, CONCERNING THE PROCEDURES TO BE
OBSERVED IN IMPLEMENTING THE SECOND SHIFT AT THE NEW ORLEANS AIR SUPPORT
BRANCH AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED
BY THE ESTABLISHMENT OF THE SECOND SHIFT.

(C) POST AT ITS FACILITIES AT THE NEW ORLEANS AIR SUPPORT BRANCH
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 DISTRICT DIRECTOR AND SHALL BE POSTED AND MAINTAINED BY
HIM/HER FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DISTRICT DIRECTOR SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.

(D) PURSUANT TO SECTION 2423.30 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION
VI, FEDERAL LABOR RELATIONS AUTHORITY, BRYAN AND ERVAY STREETS, ROOM
450, DALLAS, TEXAS, 75221, 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., JUNE 16, 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 THE STARTING AND QUITTING TIMES
OF THE EXISTING FIRST SHIFT OF THE NEW ORLEANS AIR SUPPORT BRANCH
WITHOUT AFFORDING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU,
CHAPTER 168, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR EMPLOYEES,
THE OPPORTUNITY TO NEGOTIATE WITH RESPECT TO THE CHANGE.

WE WILL NOT ESTABLISH ANY NEW SHIFT AT THE NEW ORLEANS AIR SUPPORT
BRANCH WITHOUT AFFORDING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU)
AND NTEU, CHAPTER 168, A REASONABLE OPPORTUNITY TO NEGOTIATE CONCERNING
THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH A
CHANGE AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED
BY THE CHANGE.

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 OF THE NATIONAL TREASURY EMPLOYEES UNION (NTEU)
AND NTEU, CHAPTER 168, REESTABLISH AS THE STARTING AND QUITTING TIMES OF
THE FIRST SHIFT AT THE NEW ORLEANS AIR SUPPORT BRANCH THOSE IN EXISTENCE
PRIOR TO MARCH 25, 1979, AND AFFORD THE NATIONAL TREASURY EMPLOYEES
UNION (NTEU) AND NTEU, CHAPTER 168, THE OPPORTUNITY TO NEGOTIATE WITH
RESPECT TO ANY PROPOSED CHANGES THERETO.

WE WILL, UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
UNION (NTEU) AND NTEU, CHAPTER 168, CONCERNING THE PROCEDURES TO BE
OBSERVED IN IMPLEMENTING THE SECOND SHIFT AT THE NEW ORLEANS AIR SUPPORT
BRANCH AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED
BY THE ESTABLISHMENT OF THE SECOND SHIFT.

(AGENCY)

DATED

BY: (SIGNATURE) (TITLE)

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 THE NOTICE OR
COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, BRYAN
AND ERVAY STREETS, ROOM 450, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE
NUMBER IS (214) 767-4996.

-------------------- ALJ$ DECISION FOLLOWS --------------------

U.S. CUSTOMS SERVICE,
REGION V,
NEW ORLEANS, LOUISIANA
RESPONDENT

AND

NATIONAL TREASURY EMPLOYEES UNION
(NTEU) AND NTEU, CHAPTER 168
CHARGING PARTY

CASE NO.: 6-CA-248

ELIZABETH B. BRIGMAN, ESQUIRE
FOR THE RESPONDENT

SUSAN E. JELEN, ESQUIRE
FOR THE GENERAL COUNSEL

BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE

DECISION

STATEMENT OF THE CASE

THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., (THE STATUTE), AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT DATED FEBRUARY 29, 1980 FILED BY THE
REGIONAL DIRECTOR, SIXTH REGION, FEDERAL LABOR RELATIONS AUTHORITY,
DALLAS, TEXAS, AGAINST THE U.S. CUSTOMS SERVICE, REGION V, NEW ORLEANS,
LOUISIANA (RESPONDENT).

THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
SECTIONS 7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY CHANGING THE
STARTING AND QUITTING TIMES FOR EMPLOYEES IN THE AIR SUPPORT BRANCH
WITHOUT AFFORDING NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU,
CHAPTER 168 (THE UNION) AN OPPORTUNITY TO BARGAIN CONCERNING THE CHANGES
AND/OR THEIR IMPACT AND IMPLEMENTATION. RESPONDENT DENIED THE
ALLEGATIONS.

A HEARING WAS HELD IN THIS MATTER IN NEW ORLEANS, LOUISIANA. THE
RESPONDENT AND THE GENERAL COUNSEL WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, EXAMINE
AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING BRIEFS.

BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.

FINDINGS OF FACT

1. THE NEW ORLEANS AIR SUPPORT BRANCH IS A SUBDIVISION OF THE
   RESPONDENT. ITS MISSION IS TO INTERDICT THE SMUGGLING OF CONTRABAND AND
   NARCOTICS INTO THE UNITED STATES BY AIRCRAFT, SUPPORT THE LAND AND
   MARINE BRANCHES OF THE CUSTOMS SERVICE BY AIR SURVEILLANCE OF SUSPECTED
   VEHICLES OR VESSELS, AND ASSIST OTHER FEDERAL AND STATE LAW ENFORCEMENT
   AGENCIES AS REQUIRED. IT HAS ONE OFFICE IN BELLE CHASSE, LOUISIANA, BUT
   OPERATES THROUGHOUT A SIX STATE AREA, INCLUDING ARKANSAS, LOUISIANA,
   MISSISSIPPI, ALABAMA, TENNESSEE, AND PART OF FLORIDA.

2. THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT
   OF EMPLOYEES, INCLUDING PILOTS AND AIR OFFICERS WITHIN THE AIR SUPPORT
   BRANCH.

3. AT ALL RELEVANT TIMES, APPROXIMATELY FOUR AIR OFFICERS AND FIVE
   TO SEVEN PILOTS WERE STATIONED AT THE AIR SUPPORT BRANCH. THEY SERVED
   UNDER THE DIRECTION OF THE CHIEF, AIR SUPPORT BRANCH AND TWO
   SUPERVISORS. THE AIR SUPPORT BRANCH UTILIZED BETWEEN FIVE AND SEVEN
   AIRCRAFT.

4. PRIOR TO MARCH 25, 1979 ALL EMPLOYEES WORKED FROM 8:00 A.M. TO
   4:00 P.M., MONDAY THROUGH FRIDAY. THERE WAS NO ESTABLISHED PLAN FOR
   WORKING NIGHTS AND WEEKENDS. (TR. 13). BETWEEN 1975 AND LATE 1976 A
   VOLUNTARY PAGER/BEEPER SYSTEM TO COVER COMMUNICATIONS DURING OFF-DUTY
   HOURS WAS IMPLEMENTED BY AGREEMENT BETWEEN THE RESPONDENT AND THE
   UNION.
   (TR. 17-18). THIS PROGRAM WAS ABANDONED WHEN EMPLOYEES OBJECTED TO
   CARRYING THE PAGERS WITHOUT ANY COMPENSATION. (TR. 67-68). IN 1978 A
   MANAGEMENT PROPOSAL FOR A PILOT AND AN AIR OFFICER TO CARRY A PAGER AND
   BE ON CALL AFTER HOURS FOR A SEVEN DAY PERIOD WAS WITHDRAWN WHEN THE
   UNION INSISTED ON COMPENSATION FOR THE RESTRICTIONS ON EMPLOYEE
   ACTIVITIES NECESSARILY INVOLVED IN SUCH A PROGRAM. (TR. 19-21).

5. AFTER THE ABANDONMENT OF THE VOLUNTARY PAGER SYSTEM, IT BECAME
   DIFFICULT FOR SUPERVISORS TO OBTAIN PILOTS TO FLY SUPPORT MISSIONS AFTER
   NORMAL HOURS AND ON WEEKENDS. THE AIR SUPPORT BRANCH RECEIVED
   COMPLAINTS FROM THE DISTRICTS REGARDING ITS FAILURE TO PROVIDE SUCH AIR
   SUPPORT. (TR. 68-69).

6. RAYMOND HALFACRE, CHIEF OF THE AIR SUPPORT BRANCH, DETERMINED
   THAT THE GREATEST NUMBER OF REQUESTS FOR AIR SUPPORT CAME IN BETWEEN 10
   A.M. AND 10 P.M. (TR. 70). THE NUMBER OF FLIGHTS WAS AT ITS PEAK
   BETWEEN 2 P.M. AND 6 P.M. HALFACRE DETERMINED THAT NOT AS MANY REQUESTS
   CAME IN FOR AIR SUPPORT FROM 8 A.M. TO 10 A.M.; THAT A 10 A.M. STARTING
   TIME FOR THE DAY SHIFT WOULD ALSO ELIMINATE SOME WASTED COMMUTER TIME
   FOR EMPLOYEES TRAVELING OUT OF TOWN, AND WOULD COINCIDE WITH THE WORKING
   HOURS OF SOME STATE AGENCIES WITH WHOM RESPONDENT MAINTAINED LIAISON.
   (TR. 74-75).

7. HALFACRE RECEIVED APPROVAL FROM THE REGIONAL COMMISSIONER TO
   CHANGE THE WORKING HOURS OF THE AIR SUPPORT BRANCH FROM ONE SINGLE EIGHT
   HOUR SHIFT, FROM 8 A.M. TO 4 P.M. FOR ALL EMPLOYEES, TO A SYSTEM WHICH
   CONSISTED OF TWO SHIFTS, ONE BEGINNING AT 10 A.M. AND ENDING AT 6 P.M.,
   MONDAY THROUGH FRIDAY, FOR ALL EMPLOYEES EXCEPT TWO PILOTS, AND A SECOND
   SHIFT FROM 2 P.M. TO 10 P.M. UTILIZING ONLY TWO PILOTS. THE SECOND
   SHIFT WOULD INCLUDE WORK ON SATURDAYS AND SUNDAYS WITH DAYS OFF FOR
   PERSONNEL SCHEDULED DURING THE WEEK. (TR. 70-75; JOINT EX. 1(B)).

8. ON NOVEMBER 1, 1978 RESPONDENT NOTIFIED THE UNION CHAPTER
   PRESIDENT OF THE PLAN TO CHANGE DUTY HOURS. (JOINT EX. 1(A)). BY
   LETTER DATED NOVEMBER 6, 1978 THE UNION REQUESTED TO NEGOTIATE ON THE
   CHANGES AND THEIR IMPLEMENTATION. (JOINT EX. 2).

9. THE PARTIES WERE UNABLE TO MEET UNTIL DECEMBER 22, 1978 DUE TO
   CONFLICTING SCHEDULES. (TR. 94). AT THIS INFORMATIONAL-TYPE MEETING,
   RESPONDENT EXPLAINED THE PROPOSAL, BUT WAS UNABLE TO ANSWER CERTAIN
   QUESTIONS POSED BY THE UNION. IT WAS AGREED THAT THE UNION WOULD SUBMIT
   ITS QUESTIONS IN WRITING TO PERMIT RESEARCH AND A LATER RESPONSE. (TR.
   22-23; 95-96).

10. THE UNION PREPARED AND SUBMITTED A LIST OF QUESTIONS DATED
    DECEMBER 29, 1978. RESPONDENT ALSO SUGGESTED IN ITS REPLY THAT THE
    PARTIES MEET ON FEBRUARY 12, 1979 TO RESUME NEGOTIATIONS, AND THAT IT BE
    ADVISED OF ANY COUNTERPROPOSALS OR ADDITIONAL AREAS OF CONCERN PRIOR TO
    THAT DATE. ONE OF RESPONDENT'S NEGOTIATORS WAS UNAVAILABLE THE FIRST
    WEEK IN FEBRUARY. (TR. 100; JOINT EX. 3 AND 4).

11. THE UNION MADE NO RESPONSE TO THE FEBRUARY 12, 1979 SUGGESTED
    MEETING DATE. (TR. 98). OSCAR VERA, ASSOCIATE CHIEF STEWARD OF THE
    UNION, TESTIFIED THAT HE AND VARIOUS OTHER UNION OFFICIALS CONTACTED
    RESPONDENT ORALLY WITH ADDITIONAL QUESTIONS, BUT DID NOT DO SO IN
    WRITING. VERA DID NOT TESTIFY AS TO THE DATES OR THE NATURE OF SUCH
    QUESTIONS. (TR. 40). ART BORREGO, LABOR RELATIONS SPECIALIST FOR
    RESPONDENT, RECALLED NO ORAL REQUESTS FOR INFORMATION DURING THIS
    PERIOD. (TR. 97).

12. DURING THE PERIOD FRIDAY, FEBRUARY 16 AND TUESDAY, FEBRUARY 20,
    1979, ART BORREGO, LABOR RELATIONS SPECIALIST FOR RESPONDENT, CONTACTED
    LOCAL UNION OFFICIALS AND UNION OFFICIALS IN AUSTIN, TEXAS IN AN EFFORT
    TO DETERMINE WHO WOULD REPRESENT THE UNION IN THE NEGOTIATIONS AND WHEN
    THEY COULD BE SCHEDULED. THE LOCAL UNION WAS INSISTING ON PARTICIPATION
    BY THE REGIONAL UNION REPRESENTATIVES IN ORDER TO PROTECT THE RIGHTS OF
    OTHER CHAPTERS IN THE REGION, BUT THE REGIONAL REPRESENTATIVES INDICATED
    THAT THEY WERE UNABLE TO COME TO NEW ORLEANS ANYTIME SOON. MR. BORREGO
    REQUESTED THAT THE LOCAL UNION RESOLVE THE PROBLEM AND CONTACT HIM. MR.
    LEROY ROBERTSON, CHIEF STEWARD, ADVISED MR. BORREGO ON FEBRUARY 20, 1979
    THAT THEY WOULD RESOLVE THE MATTER IN A DAY OR TWO AND ADVISE HIM OF THE
    OUTCOME. (TR. 97-100).

13. ON FEBRUARY 28, 1979, OSCAR VERA, ASSOCIATE CHIEF STEWARD OF THE
    UNION, ADVISED RESPONDENT BY LETTER, "AS I HAVE PREVIOUSLY STATED ON
    BEHALF OF NTEU CHAPTER 168, MR. JIM THORNTON OR MR. ROB ROBERTSON OF THE
    AUSTIN NTEU OFFICE WILL BE ABLE TO SCHEDULE THE MEETING WITH YOU AT THE
    EARLIEST POSSIBLE DATE." THE LETTER MADE NO REFERENCE TO A PROPOSED
    DATE. (TR. 101; JOINT EX. 5).

14. BY LETTER DATED MARCH 6, 1979 RESPONDENT ADVISED THE UNION THAT
    THE CHANGE IN DUTY HOURS AND THE ESTABLISHMENT OF THE SECOND SHIFT WOULD
    BE IMPLEMENTED ON MARCH 25, 1979. RESPONDENT ALSO STATED, "IF NTEU
    WISHES TO RESUME NEGOTIATIONS ON THE PROPOSAL, MANAGEMENT IS PREPARED TO
    MEET AT ANY TIME PRIOR TO THE IMPLEMENTATION DATE. THE
    IMPLEMENTATION.DATE SPECIFIED ABOVE WILL NO LONGER BE POSTPONED." (TR.
    102-103; JOINT EX. 6). AS A RESULT OF THIS LETTER, A BARGAINING DATE
    OF MARCH 22, 1979 WAS AGREED UPON. (TR. 25, 103).

15. THE PARTIES MET ON THURSDAY, MARCH 22, 1979. THE UNION'S
    POSITION WAS THAT THE STARTING AND QUITTING TIMES OF BOTH SHIFTS WERE
    NEGOTIABLE. RESPONDENT'S POSITION WAS THAT THE STARTING AND QUITTING
    TIMES OF THE FIRST SHIFT WAS NEGOTIABLE, BUT NOT THE STARTING AND
    QUITTING TIMES OF THE SECOND SHIFT. (TR. 29). THE UNION MADE A
    PROPOSAL THAT THE PLAN BE FOR A TRIAL PERIOD AND THAT AN AIR OFFICER BE
    ASSIGNED TO THE SECOND SHIFT. RESPONDENT REPLIED THAT IT WOULD BE
    AMENABLE TO A TRIAL PERIOD, BUT NOT TO AN AIR OFFICER ON THE SECOND
    SHIFT, AS THE TYPE OF POSITIONS ON A TOUR OF DUTY IS A PREROGATIVE OF
    MANAGEMENT. (TR. 104). THE UNION WAS CONCERNED ABOUT THE PLAN'S EFFECT
    ON AN FAA WAIVER, WHICH PERMITTED CUSTOMS' AIRCRAFT TO FLY WITH LIGHTS
    OFF, IF IN HOT PURSUIT OF OTHER AIRCRAFT, AND ALSO TO FLY BELOW 1,000
    FEET FOR IDENTIFICATION PURPOSES, SO LONG AS A COMPETENT OBSERVER WAS
    ABOARD IN ADDITION TO THE PILOT, IN ORDER TO MAINTAIN A SAFE SEPARATION.
    (TR. 26-27; 65-66). THE UNION'S POSITION WAS THAT ONLY AN AIR OFFICER
    WAS QUALIFIED AND COMPETENT. MANAGEMENT'S POSITION, ALLEGEDLY BASED ON
    AN FAA INTERPRETATION, WAS THAT ANY PERSON WHO COULD SEE AND HEAR WAS A
    COMPETENT OBSERVER. (TR. 28, 66). BARGAINING ALSO TOOK PLACE ON
    VARIOUS IMPACT ISSUES, INCLUDING HOW THE SHIFT WOULD AFFECT PILOTS
    TAKING COLLEGE COURSES, HOW THE PILOTS WOULD CONTINUE TO PERFORM WORK
    RELATING TO THEIR GEOGRAPHICAL AREAS OF RESPONSIBILITY, AND METHODS FOR
    THE EXCHANGING OF TOURS OF DUTY. (TR. 29; 104-105). THE PARTIES WERE
    UNABLE TO REACH AGREEMENT ON SEVERAL OF THESE ISSUES. CONSEQUENTLY, A
    FEDERAL MEDIATOR WAS CALLED IN TO ASSIST IN THE NEGOTIATIONS. (TR. 30).

16. THE NEGOTIATIONS CONTINUED ON FRIDAY, MARCH 23, 1979 WITH THE
    SERVICES OF THE MEDIATOR. THE UNION PRESENTED A PROPOSAL CONCERNING THE
    HOURS OF BOTH SHIFTS. RESPONDENT REPLIED THAT THEY WERE HOLDING TO THE
    10 A.M. STARTING TIME FOR THE FIRST SHIFT, AND THAT THE STARTING TIMES
    FOR THE SECOND SHIFT WERE NON-NEGOTIABLE. (TR. 105-106). THE PARTIES
    THEN LEFT BARGAINING ON THE HOURS FOR LATER AND BARGAINED ON THE OTHER
    ITEMS. (TR. 31, 106). AT THE END OF THE DAY, THE PARTIES WERE STILL
    UNABLE TO REACH AGREEMENT OVER WHAT CONSTITUTED A COMPETENT OBSERVER
    UNDER THE FAA WAIVER, HOW PILOTS WOULD CONTINUE TO WORK THEIR
    GEOGRAPHICAL AREAS, AND OTHER ISSUES. (TR. 31-32, 107). AT THE END OF
    THE SESSION ON FRIDAY THE UNION REQUESTED THAT THE IMPLEMENTATION OF THE
    CHANGE IN HOURS BE DELAYED UNTIL NEGOTIATIONS COULD BE COMPLETED.
    RESPONDENT REFUSED TO DELAY IMPLEMENTATION. (TR. 107).

17. ON SUNDAY, MARCH 25, 1979 THE PLAN FOR CHANGING THE HOURS AND
    ADDING A SECOND SHIFT WAS IMPLEMENTED. ONE SHIFT OPERATED MONDAY
    THROUGH FRIDAY FROM 10 A.M. TO 6 P.M., UTILIZING FOUR PILOTS AND FOUR
    AIR OFFICERS, AND A SECOND SHIFT OPERATED FROM 2 P.M. TO 10 P.M., SEVEN
    DAYS A WEEK, UTILIZING TWO PILOTS. THE PILOTS WERE ASSIGNED THE SECOND
    SHIFT FOR A PAY PERIOD, OR TWO WEEKS. (TR. 32-33, 107; JOINT EX. 8).

18. ALTHOUGH THE RESPONDENT IMPLEMENTED ITS PLAN ON SUNDAY, MARCH
    25, 1979, THE PARTIES CONTINUED TO MEET. THEY MET AGAIN ON MARCH 27,
    1979 AND ON APRIL 2, 1979. DURING THE MARCH 27, 1979 MEETING THE
    PARTIES CONTINUED NEGOTIATIONS ON ALL OUTSTANDING ISSUES, BUT PRIMARILY
    ON ISSUES OTHER THAN THE STARTING AND QUITTING TIMES. (TR. 38, 108).
    THE UNION MADE SOME PROPOSALS CONCERNING THE ROTATION OF AIR OFFICER
    OVERTIME. (TR. 38).

19. THE MEETING BETWEEN THE PARTIES ON APRIL 2, 1979 DEALT PRIMARILY
    WITH THE STARTING AND QUITTING TIMES. (TR. 39; 108). THE UNION
    PRESENTED FOUR DIFFERENT PROPOSALS CONCERNING THE STARTING AND QUITTING
    TIMES. THE UNION'S PROPOSALS CALLED FOR GREATER COVERAGE DURING THE DAY
    AND FOR SOME EMPLOYEES TO BEGIN WORK EARLIER IN THE MORNING. (TR. 40).
    RESPONDENT REPLIED THAT IT WAS HOLDING TO ITS POSITION IN TERMS OF THE
    HOURS FOR THE FIRST SHIFT AND REITERATED THAT THE HOURS OF THE SECOND
    SHIFT WERE NON-NEGOTIABLE. (TR. 111). OSCAR VERA, ASSOCIATE CHIEF
    STEWARD OF THE UNION, THEN ASKED ART BORREGO, LABOR RELATIONS SPECIALIST
    FOR RESPONDENT, IF THE PARTIES WERE GOING TO NEGOTIATE THE STARTING AND
    QUITTING TIMES ON THE FIRST SHIFT. BORREGO REPLIED THAT THEY WERE NOT
    AND REFUSED TO NEGOTIATE THE STARTING AND QUITTING TIMES OF ANY OF THE
    SHIFTS. (TR. 40-41, 111). RESPONDENT PROPOSED THAT THE PARTIES MEET
    AGAIN ON APRIL 6, 1979 AT WHICH TIME RESPONDENT WOULD PRESENT ITS
    POSITION CONCERNING THE VARIOUS PROPOSALS THAT HAD BEEN DISCUSSED DURING
    THE COURSE OF THE NEGOTIATIONS. (TR. 109). VERA ADVISED RESPONDENT
    THAT BECAUSE OF THE FACT THAT MANAGEMENT HAD UNILATERALLY IMPLEMENTED
    ITS PLAN AND REFUSED TO NEGOTIATE ON THE STARTING AND QUITTING TIMES,
    THE UNION WOULD NOT CONTINUE TO MEET WITH RESPONDENT. (TR. 41, 113).

20. ON APRIL 9, 1979 RESPONDENT SENT THE UNION A LETTER SETTING
    FORTH RESPONDENT'S POSITION ON EACH OF THE PROPOSALS WHICH IT BELIEVED
    HAD BEEN PRESENTED BY THE UNION DURING THE BARGAINING SESSIONS.
    RESPONDENT CONTENDED THAT NINE OF THE UNION PROPOSALS WERE
    NON-NEGOTIABLE UNDER SECTION 7106 OF THE STATUTE BECAUSE THEY INFRINGED
    VARIOUSLY ON MANAGEMENT'S RESERVED RIGHTS TO DETERMINE THE NUMBER AND
    TYPES OF POSITIONS ASSIGNED TO A TOUR OF DUTY, DIRECT AND ASSIGN WORK,
    TAKE DISCIPLINARY ACTION, DETERMINE THE BUDGET AND THE TECHNOLOGY,
    METHODS, AND MEANS OF PERFORMING WORK. (JOINT EX. 7, UNION PROPOSALS
    I(A), I(C), III, IV, VII, IX, X, XII, AND XIII.) SEVEN OF THE PURPORTED
    UNION PROPOSALS DEALT WITH PROCEDURES FOR EXCHANGING ASSIGNMENTS,
    SCHEDULING SHIFTS FOR EMPLOYEES ATTENDING COLLEGE CLASSES, GRANTING
    ANNUAL LEAVE, SIGNING OUT UPON LEAVING THE PREMISES, PAYING TRAVEL
    EXPENSES AND OVERTIME, AND MAKING OVERTIME RECORDS AVAILABLE TO THE
    UNION. AS TO THESE SEVEN ITEMS, RESPONDENT PRESENTED A COUNTERPROPOSAL
    TO EACH OF THE UNION'S PROPOSALS. (JOINT EX. 7, UNION PROPOSALS I(B),
    I(D), II, V. VI, VIII, AND XI.)

DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS

I. THE DECISION.

THE GENERAL COUNSEL ALLEGES THAT RESPONDENT VIOLATED SECTIONS
7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY CHANGING THE STARTING
AND QUITTING TIMES FOR EMPLOYEES IN THE AIR SUPPORT BRANCH WITHOUT
AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN CONCERNING THE CHANGES.
RESPONDENT REPLIES THAT THE STARTING AND QUITTING TIMES FOR THE SHIFTS
WERE WITHIN THE AMBIT OF SECTION 7106(B)(1) OF THE STATUTE WHICH IS
NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY.

SECTION 7106(B)(1) OF THE STATUTE PROVIDES:

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM

NEGOTIATING --

(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR

POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE

TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK . . .

THE CLEAR MEANING OF THIS SECTION IS TO RENDER THE NUMBERS, TYPES,
AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED TO A TOUR OF DUTY
NEGOTIABLE AT THE AGENCY'S ELECTION. FURTHER, A PROPOSAL OTHERWISE
CONSISTENT WITH THE STATUTE, WHICH, BY ITS DIRECT OR INTEGRAL
RELATIONSHIP TO THE NUMBERS, TYPES, OR GRADES OF EMPLOYEES OR POSITIONS
ASSIGNED TO A TOUR OF DUTY, WOULD BE DETERMINATIVE OF SUCH NUMBERS,
TYPES OR GRADES, LIKEWISE WOULD BE NEGOTIABLE AT THE ELECTION OF THE
AGENCY. NATIONAL EMPLOYEES UNION CHAPTER 66 AND INTERNAL REVENUE
SERVICE, KANSAS CITY SERVICE CENTER, 1 FLRA NO. 106 (1979).

THE RECORD INDICATES THAT THE ACTIVITY HEREIN, BASED AT A SINGLE
LOCATION, IS RESPONSIBLE FOR PROVIDING AIR SUPPORT THROUGHOUT A SIX
STATE REGION. TEN MEMBERS OF THE BARGAINING UNIT, SIX PILOTS AND FOUR
AIR OFFICERS, WERE DIRECTLY INVOLVED IN THIS EFFORT. THE GREATEST
NUMBER OF REQUESTS FOR AIR SUPPORT CAME IN BETWEEN 10 A.M. AND 10 P.M.
WITH A PEAK PERIOD OF 2 P.M. TO 6 P.M.

IN ORDER TO MEET THIS RESPONSIBILITY THE ACTIVITY WAS REQUIRED TO
ESTABLISH AND CHANGE TOURS OF DUTY WITH SUFFICIENT NUMBERS AND TYPES OF
PERSONNEL TO PROVIDE THE REQUISITE COVERAGE. THE FOLLOWING HOLDING OF
THE FEDERAL LABOR RELATIONS COUNCIL, WITH REGARD TO SECTION 11(B) OF
EXECUTIVE ORDER 11491, IN AFGE LOCAL 1940 AND PLUM ISLAND ANIMAL DISEASE
LABORATORY DEPARTMENT OF AGRICULTURE, GREENPORT, NEW YORK, FLRC NO.
71A-11, 1 FLRC 100 (1971) IS EQUALLY APPLICABLE TO SECTION 7106(B)(1) OF
THE STATUTE IN THIS INSTANCE:

CLEARLY, THE NUMBER OF ITS WORK SHIFTS OR TOURS OF DUTY, AND THE
DURATION OF THE SHIFTS,

COMPRISE AN ESSENTIAL AND INTEGRAL PART OF THE 'STAFFING PATTERNS'
NECESSARY TO PERFORM THE

WORK OF THE AGENCY. FURTHER, THE SPECIFIC RIGHT OF AN AGENCY TO
DETERMINE THE 'NUMBERS,

TYPES, AND GRADES OF POSITIONS OR EMPLOYEES' ASSIGNED TO A SHIFT OR
TOUR OF DUTY, AS PROVIDED

IN SECTION 11(B), OBVIOUSLY SUBSUMES THE AGENCY'S RIGHT TO FIX OR
CHANGE THE NUMBER AND

DURATION OF THOSE SHIFTS OR TOURS OF DUTY. TO HOLD OTHERWISE, I.E.
TO INTERPRET SECTION 11(B)

AS SANCTIONING THE RIGHT OF THE AGENCY TO DETERMINE THE COMPOSITION
OF THE SHIFT OR TOUR AND

NOT THE FRAMEWORK UPON WHICH THAT COMPOSITION DEPENDS, WOULD RENDER
THE PROVISIONS OF SECTION

11(B) VIRTUALLY MEANINGLESS.

IN THE INSTANT CASE THE CHANGE IN SHIFTS ALSO AFFECTED BOTH THE
NUMBER AND TYPE OF EMPLOYEES ASSIGNED TO EACH SHIFT. UNDER THE PREVIOUS
8 A.M. TO 4 P.M. TOUR OF DUTY, ALL PILOTS AND AIR OFFICERS WERE ASSIGNED
TO A SINGLE SHIFT. UNDER THE NEW TOURS OF DUTY, TWO PILOTS AND NO AIR
OFFICERS WERE ASSIGNED TO THE SECOND SHIFT, AND ALL REMAINING EMPLOYEES
WERE ASSIGNED TO THE FIRST SHIFT. AS THE FEDERAL LABOR RELATIONS
COUNCIL STATED IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF
THE TREASURY, U.S. CUSTOMS SERVICE, REGION VII, FLRC NO. 76A-28, 5 FLRC
249, 259-260 (1977):

(T)HE COUNCIL HAS CONSISTENTLY RULED THAT MATTERS RELATED TO AN
AGENCY'S "STAFFING

PATTERNS" ARE EXCEPTED FROM AN AGENCY'S BARGAINING OBLIGATION. MORE
SPECIFICALLY, THAT AN

AGENCY IS NOT REQUIRED TO NEGOTIATE ON EITHER THE NUMBER OF SHIFTS OR
THE ORGANIZATIONAL

STRUCTURE OF ACTIVITIES WITHIN THOSE SHIFTS, VIZ., THE NUMBER OF
EMPLOYEES, OR THE NUMBER OR

CATEGORIES OF POSITIONS OR EMPLOYEES ASSIGNED TO ORGANIZATIONAL
UNITS, WORK PROJECTS OR TOURS

OF DUTY. . . . FURTHER, THE AGENCY IS NOT OBLIGATED TO NEGOTIATE ON
THE NATURE OF THE WORK

TO BE PERFORMED ON EACH SHIFT OR THE TASKS TO BE ASSIGNED VARIOUS JOB
CATEGORIES AND

ACCOMPLISHED ON THE RESPECTIVE SHIFTS.

IT IS CONCLUDED, THEREFORE, THAT RESPONDENT'S ESTABLISHMENT OF NEW
TOURS OF DUTY, THE DESIGNATION OF THEIR DURATION, I.E. THEIR STARTING
AND QUITTING TIMES, AND THE NUMBER AND TYPES OF EMPLOYEES ASSIGNED
THERETO WERE SO DIRECTLY AND INTEGRALLY RELATED TO THE ACTIVITY'S
STAFFING PATTERNS -- I.E., THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
ASSIGNED AS TO BE DETERMINATIVE OF SUCH NUMBERS, TYPES AND GRADES AND
THEREFORE WERE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY. AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3669, AFL-CIO AND VETERANS
ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 2 FLRA NO. 78
(1980). CF. VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY,
A/SLMR NO. 1051, 8 A/SLMR 596 (1978); VETERANS ADMINISTRATION HOSPITAL
A/SLMR NO. 1083, 8 A/SLMR 787 (1978); VETERANS ADMINISTRATION HOSPITAL,
SHERIDAN, WYOMING, A/SLMR NO. 952, 7 A/SLMR 1077 (1977); HEADQUARTERS,
63RD AIR BASE GROUP, USAF, NORTON AIR FORCE BASE, CALIFORNIA, A/SLMR NO.
761, 6 A/SLMR 679 (1976); ALABAMA NATIONAL GUARD, A/SLMR NO. 660, 6
A/SLMR 267 (1976).

THE RECORD REFLECTS THAT RESPONDENT DID, DURING THE NEGOTIATIONS,
INDICATE THAT IT WOULD BARGAIN ON THE HOURS FOR THE FIRST SHIFT, AND
THEN, LATER ON IN THE NEGOTIATIONS, REFUSED TO CONTINUE TO DO SO. SINCE
THE DECISION TO CHANGE THE HOURS AND STAFFING OF THE FIRST SHIFT WAS, IN
THIS INSTANCE, NEGOTIABLE ONLY AT THE AGENCY'S ELECTION, RESPONDENT WAS
COMPLETELY FREE TO CHANGE ITS MIND. SEE NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 66, SUPRA, 1 FLRA NO. 106 AT FN. 2; AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 3669, AFL-CIO, SUPRA, 2 FLRA NO. 78 AT
FN. 4.

ACCORDINGLY, RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1) AND (5) OF
THE STATUTE BY FAILING TO AFFORD THE UNION AN OPPORTUNITY TO BARGAIN ON
ITS DECISION TO CHANGE THE STARTING AND QUITTING TIMES, AS ALLEGED.

II. IMPACT AND IMPLEMENTATION.

THE GENERAL COUNSEL ALSO ALLEGES THAT RESPONDENT VIOLATED SECTIONS
7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY CHANGING THE STARTING
AND QUITTING TIMES FOR EMPLOYEES IN THE AIR SUPPORT BRANCH WITHOUT
AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN ON THE IMPACT AND
IMPLEMENTATION OF THE CHANGES. SECTION 7106(B)(2) ADN (3) OF THE
STATUTE PROVIDES THAT MANAGEMENT HAS A DUTY TO BARGAIN ON PROCEDURES
WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING ITS RIGHT AND ON
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF THE RIGHT.

RESPONDENT ASSERTS THAT THE UNION WAS NOTIFIED OF THE AGENCY'S PLAN
TO ESTABLISH NEW TOURS OF DUTY ON NOVEMBER 1, 1978, AND SINCE RESPONDENT
DID NOT IMPLEMENT SUCH CHANGES UNTIL MARCH 25, 1979, THE UNION HAD MORE
THAN AN AMPLE OPPORTUNITY TO EXERCISE ITS RIGHTS UNDER SECTION
7106(B)(2) AND (3). RESPONDENT CONTENDS THAT THE CONTINUOUS DELAYS
CREATED AND REQUESTED BY THE UNION WERE AN ATTEMPT TO KEEP THE AGENCY
FROM ACTING AT ALL, AND THAT THE UNION'S REQUEST THAT IMPLEMENTATION BE
DELAYED UNTIL NEGOTIATIONS WERE COMPLETED WAS ALSO UNREASONABLE IN LIGHT
OF THE TIME THAT HAD ALREADY ELAPSED.

THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO NEGOTIATE IN
GOOD FAITH INCLUDES THE OBLIGATION, UNDER SECTION 7114(B)(2) AND (3) OF
THE STATUTE "(2) TO BE REPRESENTED AT THE NEGOTIATIONS BY DULY
AUTHORIZED REPRESENTATIVES PREPARED TO DISCUSS AND NEGOTIATE ON ANY
CONDITION OF EMPLOYMENT;" AND "(3) TO MEET AT REASONABLE TIMES AND
CONVENIENT PLACES AS FREQUENTLY AS MAY BE NECESSARY, AND TO AVOID
UNNECESSARY DELAYS".

ALTHOUGH RESPONDENT NOTIFIED THE UNION OF THE AGENCY'S PLAN TO
ESTABLISH A NEW TOUR OF DUTY ON NOVEMBER 1, 1978, NO EVIDENCE OF
UNNECESSARY DELAY ON THE PART OF THE UNION CAN BE FOUND BEFORE FEBRUARY
12, 1979. PRIOR TO THIS DATE, THE PARTIES HAD MET ON THE MUTUALLY
AGREEABLE DATE OF DECEMBER 22, 1978 FOR AN INFORMATIONAL MEETING;
RESPONDENT HAD RESPONDED TO THE UNION'S REQUEST FOR INFORMATION
REGARDING THE PROPOSAL ON THAT DATE AND BY LETTER ON JANUARY 25, 1979;
AND THE FIRST SUBSEQUENT DATE AFTER THIS RESPONSE WHICH WAS PROPOSED BY
RESPONDENT FOR A MEETING WAS FEBRUARY 12, 1979.

THE PERIOD FROM FEBRUARY 12, 1979 TO MARCH 6, 1979 DOES NOT REFLECT
WELL ON THE UNION, ALTHOUGH NO "UNNECESSARY DELAY" CAN BE FOUND. THERE
WAS CONSIDERABLE CONFUSION ON THE UNION'S PART DURING THIS THREE-WEEK
PERIOD REGARDING WHO WOULD REPRESENT IT IN THE NEGOTIATIONS AND WHEN
SUCH NEGOTIATORS WOULD BE AVAILABLE TO MEET WITH RESPONDENT. ALTHOUGH
THE UNION'S FAILURE TO RESOLVE ITS PROBLEMS DURING THIS THREE-WEEK
PERIOD IS NOT CONDONED, IT CANNOT BE CONCLUDED, ON THE BASIS OF THE
RECORD, THAT THERE WAS A DELIBERATE ATTEMPT TO DELAY THE NEGOTIATIONS OR
THAT THE DELAYS WERE "UNNECESSARY." THE LOCAL UNION FELT IT NEEDED THE
ASSISTANCE OF THE REGIONAL UNION REPRESENTATIVES IN ORDER TO PROTECT THE
RIGHTS OF OTHER CHAPTERS IN THE REGION. RESPONDENT APPEARS TO HAVE
RECOGNIZED THE REASONABLENESS OF THIS REQUEST, AT LEAST IN PART, SINCE
IT ALSO CONTACTED SUCH REGIONAL UNION OFFICIALS IN AN EFFORT TO SCHEDULE
A DATE FOR THE NEGOTIATIONS.

THE NEXT TIME PERIOD TO BE CONSIDERED WAS FROM MARCH 6, 1979 TO MARCH
22, 1979. THE UNION CONTACTED RESPONDENT PROMPTLY AFTER RESPONDENT'S
MARCH 6, 1979 LETTER, AND A MARCH 22, 1979 DATE WAS AGREED UPON FOR
NEGOTIATIONS. THERE IS NO EVIDENCE THAT THE UNION WAS RESPONSIBLE FOR
ANY "UNNECESSARY DELAY" AT THIS TIME IN THE ESTABLISHMENT OF THE MARCH
22, 1979 DATE.

THE PARTIES MET ON THURSDAY, MARCH 22, 1979 AND FRIDAY, MARCH 23,
1979. THE RECORD REFLECTS THAT BARGAINING TOOK PLACE ON VARIOUS ISSUES
BEARING ON THE IMPACT AND IMPLEMENTATION OF THE PROPOSAL FOR NEW TOURS
OF DUTY, SUCH AS HOW THE LATE SHIFT WOULD AFFECT PILOTS TAKING COLLEGE
COURSES, HOW THE PILOTS WOULD CONTINUE TO PERFORM WORK RELATING TO THEIR
GEOGRAPHICAL AREAS OF RESPONSIBILITY, AND METHODS FOR THE EXCHANGING OF
TOURS OF DUTY. A FEDERAL MEDIATOR WAS CALLED IN LATE ON THURSDAY AND
ASSISTED THE PARTIES IN THEIR NEGOTIATIONS ON BOTH DATES. AT THE END OF
THE SESSION ON FRIDAY, THE UNION REQUESTED THAT THE ANNOUNCED
IMPLEMENTATION DATE FOR THE CHANGES IN THE TOURS OF DUTY BE DELAYED
UNTIL NEGOTIATIONS COULD BE COMPLETED. RESPONDENT REFUSED TO DELAY
IMPLEMENTATION, AND THE NEW TOURS OF DUTY WENT INTO EFFECT TWO DAYS
LATER ON SUNDAY, MARCH 25, 1979.

A DELAY IN IMPLEMENTATION OF THE NEW TOURS OF DUTY IN ORDER TO PERMIT
THE PARTIES TO NEGOTIATE FULLY ON PROCEDURES AND ON APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED WOULD HAVE BEEN
CONSISTENT
WITH THE STATUTE AND WOULD NOT HAVE PREVENTED THE RESPONDENT FROM ACTING
AT ALL. THE AUTHORITY, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE
EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA NO. 16 (1979), NOTED THAT
CONGRESS SPECIFICALLY REJECTED A PROVISION WHICH PROVIDED THAT
NEGOTIATION ON PROCEDURES SHOULD NOT "UNREASONABLY DELAY" SO AS TO
"NEGATE" THE EXERCISE OF MANAGEMENT'S RESERVED RIGHTS, AND HELD THAT
SUBSECTION (B)(3) IS INTENDED TO AUTHORIZE AN EXCLUSIVE REPRESENTATIVE
TO NEGOTIATE FULLY ON PROCEDURES, EXCEPT TO THE EXTENT THAT SUCH
NEGOTIATIONS WOULD PREVENT AGENCY MANAGEMENT FROM ACTING AT ALL. SEE
ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE
LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA NO. 77
(1980) AT P. 22. IN NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS
SERVICE, REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA NO. 30 (1979),
THE AUTHORITY HELD THAT A UNION PROPOSAL WHICH WOULD ALLOW EMPLOYEES
TIME TO HAVE THEIR NAMES DELETED FROM LOCAL TELEPHONE DIRECTORIES BEFORE
A NAMEPLATE TEST PROGRAM COULD BE PUT INTO EFFECT WOULD NOT VIOLATE
SECTION 7106(B) OF THE STATUTE EVEN THOUGH IT MIGHT DELAY IMPLEMENTATION
OF THE TEST PROGRAM FOR SOME TIME.

THE PARTIES HAD BEEN IN ACTUAL NEGOTIATIONS FOR ONLY TWO DAYS PRIOR
TO IMPLEMENTATION. THERE APPEARS TO HAVE BEEN GOOD FAITH BARGAINING AS
TO THE IMPACT AND IMPLEMENTATION PROPOSALS. THERE WAS NO "IMPASSE"
WITHIN THE MEANING OF 5 C.F.R. SECTION 2470.2(E) /8/ , WHICH
CONTEMPLATES THE USE OF EFFORTS TO REACH AGREEMENT BY DIRECT
NEGOTIATIONS AND BY MEDIATION OR OTHER VOLUNTARY ARRANGEMENTS FOR
SETTLEMENT BEFORE PARTIES CAN DECLARE THEMSELVES AT IMPASSE. THE
PARTIES ACKNOWLEDGED THE POSSIBILITY OF FUTURE AGREEMENTS BY THEIR
WILLINGNESS TO MEET THEREAFTER WITH THE ASSISTANCE OF THE MEDIATOR.
EVEN IF THE PARTIES WERE AT IMPASSE, RESPONDENT COULD NOT HAVE
IMPLEMENTED THE NEW TOURS OF DUTY UNTIL THE UNION HAD A REASONABLE
OPPORTUNITY TO INVOKE THE PROCESSES OF THE FEDERAL SERVICES IMPASSES
PANEL. 5 U.S.C. SECTION 7119(B); 5 C.F.R. CH. XIV, SUBCHAPTER D. A
PERIOD OF LESS THAN TWO DAYS, INVOLVING LATE FRIDAY TO SUNDAY, DOES NOT
CONSTITUTE SUCH A REASONABLE OPPORTUNITY, ABSENT A CLEAR AND UNEQUIVOCAL
WAIVER BY THE UNION OF ITS RIGHTS IN THIS RESPECT. THERE IS NO EVIDENCE
THAT AN OVERRIDING EXIGENCY EXISTED WHICH REQUIRED IMMEDIATE
IMPLEMENTATION.

IN VIEW OF THE FOREGOING, IT IS CONCLUDED THAT RESPONDENT VIOLATED
SECTION 7116(A)(5) OF THE STATUTE AND, DERIVATIVELY, SECTION 7116(A)(1)
OF THE STATUTE, BY NOT AFFORDING THE UNION THE OPPORTUNITY TO NEGOTIATE
FULLY ON PROCEDURES AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES
ADVERSELY AFFECTED, WITHIN THE MEANING OF SECTION 7106(B)(2) AND (3) OF
THE STATUTE, PRIOR TO THE IMPLEMENTATION OF CHANGES IN TOURS OF DUTY.
/9/ RESPONDENT'S WILLINGNESS TO CONTINUE TO NEGOTIATE OVER THE IMPACT
AND IMPLEMENTATION OF THE CHANGES AFTER IMPLEMENTATION DID NOT CURE THE
VIOLATION OR RENDER IT DE MINIMUS. BASED ON THE FOREGOING FINDINGS AND
CONCLUSIONS, 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 U.S. CUSTOMS SERVICE, REGION V, NEW
ORLEANS, LOUISIANA, SHALL:

1. CEASE AND DESIST FROM:

(A) INSTITUTING ANY FUTURE CHANGE IN THE TOURS OF DUTY, AND THE
NUMBERS, TYPES AND GRADES

OF EMPLOYEES OR POSITIONS ASSIGNED THERETO, OF THE NEW ORLEANS AIR
SUPPORT CENTER WITHOUT

AFFORDING NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER
168, THE

EMPLOYEES' COLLECTIVE BARGAINING REPRESENTATIVES, A REASONABLE
OPPORTUNITY TO NEGOTIATE, TO

THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES
WHICH MANAGEMENT WILL OBSERVE

IN IMPLEMENTING SUCH A CHANGE AND ON APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED

BY THE CHANGE.

(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 CARRY OUT THE
   PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
   STATUTE:

(A) UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
UNION AND NTEU CHAPTER

168, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE
PROCEDURES WHICH

MANAGEMENT OBSERVED IN CHANGING, ON MARCH 25, 1979, THE TOURS OF
DUTY, AND THE NUMBERS, TYPES,

AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED THERETO, OF THE NEW
ORLEANS AIR SUPPORT CENTER

AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY
THE CHANGE.

(B) POST AT ITS FACILITIES AT THE NEW ORLEANS AIR SUPPORT CENTER
COPIES OF THE ATTACHED

NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.
UPON RECEIPT OF SUCH

FORMS, THEY SHALL BE SIGNED BY THE DISTRICT DIRECTOR 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
DISTRICT DIRECTOR SHALL

TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY

OTHER MATERIAL.

(C) PURSUANT TO 5 C.F.R. SECTION 2423.30 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.

GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE

DATED: DECEMBER 4, 1980
WASHINGTON, D.C.

APPENDIX

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 FUTURE CHANGE IN THE TOURS OF DUTY, AND THE
NUMBERS, TYPES, AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED THERETO,
OF THE NEW ORLEANS AIR SUPPORT CENTER WITHOUT AFFORDING NATIONAL
TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER 168, THE EMPLOYEES'
COLLECTIVE BARGAINING REPRESENTATIVE, A REASONABLE OPPORTUNITY TO
NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH CHANGE
AND
ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
CHANGE.

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 AND NTEU CHAPTER 168, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, CONCERNING THE PROCEDURES WHICH MANAGEMENT OBSERVED IN
CHANGING, ON MARCH 25, 1979, THE TOURS OF DUTY, AND THE NUMBERS, TYPES,
AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED THERETO, OF THE NEW
ORLEANS AIR SUPPORT CENTER AND ON APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES
ADVERSELY AFFECTED BY SUCH CHANGE.

(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 EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 6, BROWN
AND ERVAY STREET, DOWNTOWN POST OFFICE STATION, ROOM 450, DALLAS, TEXAS
75221.

--------------- FOOTNOTES$ ---------------

/1/ THE GENERAL COUNSEL MADE A MOTION TO STRIKE CERTAIN MATERIAL
CONTAINED IN THE RESPONDENT'S CROSS-EXCEPTIONS AND OPPOSITION WHICH
RELATED TO LANGUAGE IN A COLLECTIVE BARGAINING AGREEMENT BETWEEN NTEU
AND THE CUSTOMS SERVICE THAT BECAME EFFECTIVE ON JUNE 30, 1980. AS THAT
CONTRACT WAS NOT YET EFFECTIVE DURING THE PERIOD OF TIME IN QUESTION,
THE MOTION TO STRIKE IS HEREBY GRANTED.

/2/ INASMUCH AS THE PARTIES HAD NOT REACHED IMPASSE BEFORE THE CHANGE
WAS IMPLEMENTED, THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE
JUDGE'S DISCUSSION CONCERNING THE REQUIREMENTS OF THE STATUTE WHERE
PARTIES DO REACH IMPASSE IN SIMILAR CIRCUMSTANCES.

/3/ IN REACHING THIS CONCLUSION THE JUDGE RELIED UPON, AMONG OTHERS,
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 66 AND INTERNAL REVENUE
SERVICE, KANSAS CITY SERVICE CENTER, 1 FLRA 926 (1979) AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3669, AFL-CIO AND VETERANS
ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 2 FLRA 640
(1980).

/4/ SECTION 7106(B)(2) AND (3) PROVIDE:

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM

NEGOTIATING --

. . . .

(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY

AUTHORITY UNDER THIS SECTION; OR

(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY

AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.

/5/ SECTION 7106(B)(1) PROVIDES:

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM

NEGOTIATING --

(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR

POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE

TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)

/6/ IT SHOULD BE NOTED THAT, UNLIKE THE JUDGE, THE AUTHORITY DOES NOT
CONSTRUE THE "DURATION" OF A TOUR OF DUTY AS BEING SYNONYMOUS WITH
"STARTING AND QUITTING TIMES." RATHER, "DURATION" RELATES TO THE LENGTH
OF A SHIFT OR TOUR OF DUTY.

/7/ DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 5
FLRA NO. 2 (1981).

/8/ 5 C.F.R. SECTION 2470.2(E) PROVIDES:

THE TERM 'IMPASSE' MEANS THAT POINT IN THE NEGOTIATION OF CONDITIONS
OF EMPLOYMENT AT WHICH

THE PARTIES ARE UNABLE TO REACH AGREEMENT, NOTWITHSTANDING THEIR
EFFORTS TO DO SO BY DIRECT

NEGOTIATIONS AND BY THE USE OF MEDIATION OR OTHER VOLUNTARY
ARRANGEMENTS FOR SETTLEMENT.

/9/ THIS DETERMINATION SHOULD NOT BE CONSTRUED TO MEAN THAT ANY
PARTICULAR PROPOSAL ALLEGEDLY CONCERNING IMPACT AND IMPLEMENTATION IS
WITHIN THE SCOPE OF THE DUTY TO BARGAIN. THIS ISSUE WAS NOT PRESENTED
FOR DETERMINATION HEREIN. CF. U.S. PATENT AND TRADEMARK OFFICE AND
PATENT OFFICE PROFESSIONAL ASSOCIATION, 3 FLRA NO. 123 (1980).