Department of the Treasury, U.S. Customs Service, Region I, Boston, Massachusetts (Respondent) and National Treasury Employees Union and NTEU Chapter Nos. 133, 138, 141, 142, 148, 154, 181 and 184 (Complainants) 

 



[ v01 p398 ]
01:0398(49)CA
The decision of the Authority follows:


 1 FLRA No. 49
 
 DEPARTMENT OF THE TREASURY
 U.S. CUSTOMS SERVICE
 REGION I
 BOSTON, MASSACHUSETTS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER NOS. 133, 138, 141,
 142, 148, 154, 181 AND 184
 Complainants
 
                                            Assistant Secretary
                                            Case No. 31-11459(CA)
 
                            DECISION AND ORDER
 
    ON NOVEMBER 15, 1978, ADMINISTRATIVE LAW JUDGE RANDOLPH D. MASON
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING FINDING THAT THE RESPONDENT HAD VIOLATED SECTION 19(A)(1) AND
 (6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY UNILATERALLY CHANGING THE
 WORKING CONDITIONS OF EMPLOYEES WHEN IT IMPOSED A NEW POLICY REGARDING
 SHIFT TRADING.  THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE
 RESPONDENT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE
 ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER.  NO EXCEPTIONS WERE FILED WITH RESPECT
 TO THIS ASPECT OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
 AND ORDER.  THE ADMINISTRATIVE LAW JUDGE FOUND FURTHER THAT THE
 RESPONDENT HAD NOT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER WHEN
 IT ISSUED NEW GROOMING STANDARDS, AND THEREFORE RECOMMENDED THAT THE
 REMAINDER OF THE COMPLAINT BE DISMISSED.  THEREAFTER, THE COMPLAINANTS
 FILED EXCEPTIONS WITH RESPECT TO THE PORTION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER DISMISSING PORTIONS OF THE
 COMPLAINT, AND THE RESPONDENT FILED AN ANSWERING BRIEF.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, IN A MATTER SUCH AS HERE INVOLVED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, INCLUDING THE COMPLAINANTS' EXCEPTIONS AND THE RESPONDENT'S
 ANSWERING BRIEF, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS IN
 REGARD TO THAT PORTION OF THE COMPLAINT WHEREIN THE ADMINISTRATIVE LAW
 JUDGE FOUND A VIOLATION OF EXECUTIVE ORDER 11491, AS AMENDED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS /1/ AND RECOMMENDATIONS.  /2/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, REGION I,
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) UNILATERALLY INSTITUTING CHANGES WITH RESPECT TO SHIFT TRADING BY
 ITS EMPLOYEES WITHOUT
 
    PROVIDING NOTICE TO, AND, UPON REQUEST, MEETING AND CONFERRING WITH
 THE NATIONAL TREASURY EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF
 ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE;  AND
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, FOR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND PROVISIONS OF THE ORDER;
 
    (A) RESCIND AND REVOKE THE TERMS AND CONDITIONS OF EMPLOYMENT SET
 FORTH IN ITS MEMORANDUM
 
    OF AUGUST 15, 1977, PERTAINING TO THE CIRCUMSTANCES UNDER WHICH SHIFT
 TRADING WOULD BE
 
    PERMITTED, AND ANY SUBSEQUENT MEMORANDA ISSUED TO EFFECTUATE THOSE
 TERMS AND CONDITIONS.
 
    (B) NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION OF ANY INTENDED
 CHANGE IN THE PRACTICE OF
 
    SHIFT TRADING, AND, UPON REQUEST, MEET AND CONFER IN GOOD FAITH ON
 SUCH INTENDED CHANGE.
 
    (C) POST AT ITS FACILITIES IN THE OGDENSBERG DISTRICT 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 COMMISSIONS, REGION
 I, U.S. CUSTOMS SERVICE,
 
    DEPARTMENT OF THE TREASURY, AND THEY 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, REGION I, U.S.
 CUSTOMS SERVICE, DEPARTMENT OF
 
    THE TREASURY, SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
 ARE NOT ALTERED,
 
    DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (D) 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.
 
    IT IS HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT IN
 ASSISTANT SECRETARY CASE NO. 31-11459(CA) FOUND NOT TO BE VIOLATIVE OF
 THE EXECUTIVE ORDER BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 6, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
              CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INSTITUTE CHANGES WITH RESPECT TO THE PRACTICE OF SHIFT
 TRADING AND ANY OTHER TERMS AND CONDITIONS OF EMPLOYMENT, WITHOUT FIRST
 NOTIFYING AND, UPON REQUEST, MEETING AND CONFERRING WITH THE NATIONAL
 TREASURY EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF OUR UNIT
 EMPLOYEES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL RESCIND AND REVOKE THE TERMS AND CONDITIONS OF EMPLOYMENT SET
 FORTH IN OUR MEMORANDUM OF AUGUST 15, 1977, CONCERNING THE CIRCUMSTANCES
 UNDER WHICH SHIFT TRADING WILL BE PERMITTED, AND ANY SUBSEQUENT
 MEMORANDA ISSUED TO EFFECTUATE IT.
 
    WE WILL, UPON REQUEST, MEET AND CONFER WITH THE NATIONAL TREASURY
 EMPLOYEES UNION, WITH RESPECT TO ANY PROPOSED CHANGES RELATING TO THE
 PRACTICE OF SHIFT TRADING AND ANY OTHER TERMS AND CONDITIONS OF
 EMPLOYMENT.
 
                           (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, WHOSE ADDRESS IS:
 ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007.
 
    RICHARD BLAZAR, ESQUIRE
 
    ASSISTANT COUNSEL
 
    JOHN F. BUFE, ESQUIRE
 
    ASSOCIATE COUNSEL
 
    1730 K STREET, N.W.
 
    WASHINGTON, D.C.  200006
 
                            FOR THE COMPLAINANT
 
    CHRISTOPHER DOHERTY, ESQUIRE
 
    ASSISTANT REGIONAL COUNSEL
 
    GREGORY A. DUNN
 
    U.S. CUSTOMS SERVICE
 
    100 SUMMER STREET
 
    BOSTON, MASSACHUSETTS
 
                            FOR THE RESPONDENT
 
    BEFORE:  RANDOLPH D. MASON
 
                         ADMINISTRATIVE LAW JUDGE
 
                           CASE NO. 31-11459(CA)
 
                      RECOMMENDED DECISION AND ORDER
 
    THIS PROCEEDING WAS HEARD IN BURLINGTON, VERMONT ON SEPTEMBER 19,
 1978, AND ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED.  PURSUANT TO
 THE REGULATION OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
 RELATIONS (HEREINAFTER CALLED THE ASSISTANT SECRETARY), A NOTICE OF
 HEARING ON COMPLAINT WAS ISSUED ON AUGUST 17, 1978.  THIS CASE WAS
 INITIATED BY A COMPLAINT FILED ON NOVEMBER 21, 1977, BY THE NATIONAL
 TREASURY EMPLOYEES UNION AND NTEU CHAPTER NOS. 133, 138, 141, 142, 148,
 154, 181, 184.  THE COMPLAINT ALLEGES MULTIPLE VIOLATIONS OF SECTIONS
 19(A)(6) AND (1) OF THE ORDER BY THE U.S. CUSTOMS SERVICE, REGION I,
 (HEREINAFTER THE RESPONDENT).  SOME OF THE ALLEGATIONS WERE DISMISSED BY
 THE REGIONAL ADMINISTRATOR, THE PRIMARY ISSUES REMAINING FOR DECISION
 ARE AS FOLLOWS:
 
    (1) WHETHER RESPONDENT UNILATERALLY CHANGED THE POLICIES AND
 PROCEDURES UNDER WHICH INSPECTORS WERE PERMITTED TO TRADE SHIFTS;
 
    (2) WHETHER RESPONDENT TOOK APPROPRIATE ACTION TO NOTIFY THE UNION OF
 A PROPOSED CHANGE IN GROOMING STANDARDS;
 
    (3) WHETHER THE UNION REQUESTED NEGOTIATIONS PRIOR TO IMPLEMENTATION
 OF THE GROOMING STANDARDS;  AND, IF NOT, ASSUMING RESPONDENT'S NOTICE
 WAS LOST IN THE MAIL, WHETHER RESPONDENT WAS OBLIGATED TO RESCIND THE
 STANDARDS AND NEGOTIATE WITH THE UNION.
 
    AT THE HEARING, ALL PARTIES WERE REPRESENTED AND WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
 WITNESSES, AND ARGUE ORALLY.  THE RECORD WAS HELD OPEN FOR THE RECEIPT
 OF A MEMORANDUM DATED AUGUST 18, 1977;  THIS DOCUMENT WAS MARKED AND
 RECEIVED AS COMPLAINANT'S EXHIBIT NO. 9.  /3/ THEREAFTER, BOTH PARTIES
 FILED BRIEFS.  UPON CONSIDERATION OF THE ENTIRE RECORD, FROM MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
 TESTIMONY AND EVIDENCE ADDUCED AT THE HEARING, /4/ I MAKE THE FOLLOWING
 FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN, THE NATIONAL TREASURY EMPLOYEES UNION
 WAS THE EXCLUSIVE REPRESENTATIVE OF CERTAIN EMPLOYEES IN REGION I OF THE
 U.S. CUSTOMS SERVICE.  THE REGIONAL HEADQUARTERS WERE IN BOSTON,
 MASSACHUSETTS.  BY LETTER DATED MARCH 15, 1976, THE NATIONAL PRESIDENT
 OF NTEU INFORMED RESPONDENT'S REGIONAL COMMISSIONER OF HIS OBLIGATION
 UNDER THE EXECUTIVE ORDER TO NOTIFY NTEU OF ANY CHANGES IN PERSONNEL
 POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING CONDITIONS PRIOR TO
 THEIR IMPLEMENTATION SO THAT NTEU WOULD HAVE AN OPPORTUNITY TO INVOKE
 ITS RIGHT TO NEGOTIATE AND TO PARTICIPATE IN NEGOTIATIONS.  THE LETTER
 THEN INFORMED THE RESPONDENT THAT THE ONLY SUITABLE RECIPIENT OF SUCH
 NOTIFICATION WAS ROBERT TOBIAS, THE GENERAL COUNSEL OF NTEU IN
 WASHINGTON,D.C.  MR. TOBIAS' MAILING ADDRESS (INCLUDING ZIP CODE) WAS
 SPECIFIED.
 
    SHIFT TRADING
 
    THE PORT OF CHAMPLAIN, NEW YORK, IS LOCATED WITHIN THE RESPONDENT'S
 OGDENSBERG, NEW YORK, DISTRICT.  THE PORT INCLUDES FIVE SUBPORTS AND
 COVERS ABOUT 30 MILES ALONG THE CANADIAN BORDER.  THE CUSTOMS INSPECTORS
 ASSIGNED TO THIS PORT WORK AT 8 DIFFERENT LOCATIONS.  DURING THE PERIOD
 IN QUESTION, THERE WERE APPROXIMATELY 45 SHIFTS OR TOURS OF DUTY TO
 WHICH THE INSPECTORS COULD BE ASSIGNED THROUGHOUT THE ENTIRE PORT OF
 CHAMPLAIN.
 
    SINCE NOVEMBER 8, 1968, THE U.S. CUSTOMS SERVICE HAS HAD A PUBLISHED
 POLICY ("INS-2") REGARDING THE ROTATION OF INSPECTIONAL PERSONNEL
 THROUGH DUTY ASSIGNMENTS AND TOURS OF DUTY.  THIS DOCUMENT STATES THAT
 WHERE DIFFERENT TOURS OF DUTY HAVE BEEN ESTABLISHED AT A PLACE OF
 ASSIGNMENT, THE INSPECTORS SHALL BE ROTATED TO DIFFERENT TOURS AT LEAST
 EVERY FOUR WEEKS.  THE BURDEN WAS PLACED UPON THE DISTRICT DIRECTORS TO
 MAKE THE NECESSARY PLANS AND SCHEDULES TO INSURE THAT INSPECTORS WOULD
 RECEIVE EQUALITY OF TREATMENT IN ASSIGNMENT DESIRABILITY.
 
    FOR SEVERAL YEARS PRIOR TO AUGUST 15, 1977, INSPECTORS AT THE PORT OF
 CHAMPLAIN WERE ROUTINELY ALLOWED BY THEIR SUPERVISORS TO TRADE SHIFTS
 WITH EACH OTHER AS LONG AS THE INSPECTORS WERE COMPETENT TO PERFORM THE
 DUTIES AT THE LOCATIONS IN QUESTION.  IF AN INSPECTOR DESIRED TO CHANGE
 SHIFTS, IT WAS NECESSARY FOR HIM TO FIND ANOTHER INSPECTOR WHO WOULD
 AGREE TO TRADE SHIFTS WITH HIM.  THIS PRACTICE OF SHIFT "SWAPPING" WAS
 EXTENSIVE AND ORAL REQUESTS WERE ALMOST ALWAYS GRANTED BY THE FOUR
 SUPERVISORS AT THE PORT OF CHAMPLAIN.  RESPONDENT DID NOT HAVE ANY
 WRITTEN POLICY WITH RESPECT TO SHIFT TRADING.
 
    ON SEPTEMBER 30, 1976, THE DISTRICT DIRECTOR FOR THE RESPONDENT'S
 OGDENSBERG DISTRICT HELD A MEETING WITH THE PORT DIRECTOR FOR THE PORT
 OF CHAMPLAIN AND THE PRESIDENT AND VICE PRESIDENT OF THE LOCAL CHAPTER
 OF NTEU.  DURING THE COURSE OF THIS MEETING, AT WHICH AT LEAST 15
 SEPARATE AGENDA ITEMS WERE DISCUSSED, THE DISTRICT DIRECTOR PROPOSED
 THAT SHIFT TRADING BE PERMITTED ONLY IN "EMERGENCY SITUATIONS OR
 SITUATIONS INVOLVING A CLEARLY JUSTIFIABLE NEED." THE UNION PRESIDENT
 STATED THAT HE WAS "VERY MUCH OPPOSED" TO THIS PROPOSAL.
 
    THE ABOVE MEETING HAD NO EFFECT UPON THE LIBERAL SHIFT TRADING POLICY
 CARRIED OUT BY THE RESPONDENT'S SUPERVISORS AT THE PORT OF CHAMPLAIN.
 THE PRACTICE CONTINUED AS IT HAD IN THE PAST.
 
    ON AUGUST 15, 1977, THE DIRECTOR OF INSPECTION AND CONTROL ISSUED A
 MEMORANDUM TO ALL PORT DIRECTORS WITHIN THE OGDENSBERG DISTRICT WHICH
 PROVIDED THAT REQUESTS FOR SHIFT TRADING SHOULD BE GRANTED ONLY UNDER
 EMERGENCY SITUATIONS.  THIS DIRECTIVE WAS IMMEDIATELY IMPLEMENTED BY THE
 PORT DIRECTOR OF THE PORT OF CHAMPLAIN.  ON AUGUST 22 HE ISSUED A
 MEMORANDUM TO ALL INSPECTORS AT THE PORT IN WHICH HE FURTHER REQUIRED
 THAT REQUESTS FOR SHIFT TRADING BE MADE IN WRITING TO THE SUPERVISORY
 INSPECTOR AND THAT THE "EMERGENCY OR OTHER VALID REASON" SHOULD BE
 STATED THEREIN.
 
    THE UNION WAS NOT GIVEN ANY ADVANCE NOTICE THAT THE AUGUST 15
 MEMORANDUM WAS GOING TO BE ISSUED.  THIS MEMORANDUM SIGNIFICANTLY
 CHANGED THE WORKING CONDITIONS OF THE INSPECTORS AT THE PORT OF
 CHAMPLAIN.  PRIOR TO AUGUST 15, 1977, BETWEEN 300 AND 400 REQUESTS FOR
 SHIFT TRADING (REPRESENTING 150 TO 200 TRADES) WERE SUBMITTED BY
 INSPECTORS DURING EACH TWO-WEEK PAY PERIOD.  AFTER THE AUGUST 15
 MEMORANDUM, THE NUMBER OF REQUESTS DECREASED DRAMATICALLY.  DURING THE
 13-MONTH PERIOD AFTER THE MEMORANDUM ONLY 222 REQUESTS WERE MADE.
 ALTHOUGH MANY OF THESE REQUESTS APPEARED TO HAVE BEEN GRANTED WHERE NO
 EMERGENCY WAS SHOWN, THE EVIDENCE DOES NOT REVEAL WHETHER THIS APPARENT
 DISREGARD OF THE EMERGENCY STANDARD IS ONLY A RECENT OCCURRENCE OR
 WHETHER IT MAY BE SOLELY ATTRIBUTABLE TO ONE OR TWO OF THE FOUR
 SUPERVISORS AT THE PORT OF CHAMPLAIN.  IN ANY EVENT, THE EVIDENCE IS
 SUFFICIENT TO DEMONSTRATE A SIGNIFICANT CHANGE IN THE WORKING CONDITIONS
 OF MANY INSPECTORS AT THE PORT OF CHAMPLAIN.
 
    I ALSO FIND THAT THE AUGUST 15 MEMORANDUM CHANGED THE WORKING
 CONDITIONS OF OTHER INSPECTORS AT OTHER PORTS AND FACILITIES WITHIN THE
 OGDENSBERG DISTRICT.  THIS FINDING IS SUPPORTED BY THE FACT THAT ALL OF
 THE PORT DIRECTORS CALLED THE AUTHOR OF THE AUGUST 15 MEMORANDUM TO
 DETERMINE WHAT CONSTITUTED AN "EMERGENCY", INDICATING THAT THEY ALL
 CONSIDERED THIS RESTRICTIVE STANDARD TO REPRESENT A CHANGE IN POLICY.
 FURTHERMORE, THE AUTHOR OF THE MEMORANDUM TESTIFIED, AND I SO FIND, THAT
 AFTER THE MEMORANDUM WAS ISSUED THE PORT DIRECTORS RESTRICTED SHIFT
 TRADING TO SUCH AN EXTENT THAT THE PRACTICE WAS "ALMOST STOPPED."
 
    GROOMING STANDARDS
 
    IN JULY OF 1977, RESPONDENT'S ACTING REGIONAL COMMISSIONER COMPLETED
 A PROPOSED DRAFT OF A CIRCULAR (FAC-10-A:P:ER) ENTITLED "GROOMING
 STANDARDS FOR UNIFORMED PERSONNEL OF THE BOSTON REGION." RESPONDENT
 CONSIDERED THE SUBJECT OF THE CIRCULAR A NEGOTIABLE MATTER.  IN
 ACCORDANCE WITH THE NTEU'S LETTER OF MARCH 15, 1976, (SEE THE FIRST
 PARAGRAPH OF THESE FINDINGS), RESPONDENT TOOK STEPS TO NOTIFY THE NTEU'S
 GENERAL COUNSEL IN WASHINGTON, D.C. BY MAIL.  THE UNION HAD INSTRUCTED
 THE RESPONDENT THAT THIS WOULD BE THE ONLY SUITABLE METHOD OF
 NOTIFICATION OF PROPOSED CHANGES IN WORKING CONDITIONS.  IN THE PAST,
 RESPONDENT HAD NOTIFIED THE UNION OF SUCH CHANGES BY THE ABOVE METHOD ON
 NUMEROUS OCCASIONS.
 
    ON JULY 21, 1977, RESPONDENT APPROVED AND SIGNED A LETTER CORRECTLY
 ADDRESSED TO THE GENERAL COUNSEL OF THE UNION IN WASHINGTON, D.C., WHICH
 ENCLOSED A COPY OF THE CIRCULAR CONCERNING GROOMING STANDARDS AND
 STATED
 THAT THE CIRCULAR WOULD BE ISSUED ON OR ABOUT AUGUST 15, 1977.  THE
 EMPLOYEE RELATIONS CLERK WHO HAD TYPED THIS LETTER PLACED THE LETTER AND
 THE CIRCULAR IN A FRANKED ENVELOPE BEARING THE PRINTED RETURN ADDRESS OF
 THE RESPONDENT'S REGIONAL COMMISSIONER OF CUSTOMS IN BOSTON,
 MASSACHUSETTS.  ON THE SAME DATE, THE EMPLOYEE RELATIONS CLERK CARRIED
 THIS ENVELOPE TO THE MAIL ROOM ON THE SAME FLOOR.  THE MAIL CLERK TOOK
 THE LETTER AND PLACED IT WITH ABOUT 15 OTHER LETTERS AND BOUND THESE
 LETTERS WITH A WRAPPER MARKED "OUT OF STATE DELIVERY." IN THE ORDINARY
 COURSE OF BUSINESS, AT 4:00 P.M. EACH DAY THE MAIL CLERK DEPOSITED ALL
 SUCH LETTERS IN A U.S. POST OFFICE BOX.  UNDER THE CIRCUMSTANCES, I MUST
 INFER AND FIND THAT THE ABOVE JULY 21 LETTER OF NOTIFICATION TO THE
 UNION WAS PROPERLY MAILED ON THAT DATE.  THE LETTER WAS SENT BY FIRST
 CLASS MAIL (THE METHOD CUSTOMARILY USED BY THE RESPONDENT) AND WAS NEVER
 RETURNED TO THE RESPONDENT BY THE POST OFFICE.
 
    IN THE NORMAL COURSE OF EVENTS, LETTERS ADDRESSED TO THE UNION'S
 GENERAL COUNSEL ARE RECEIVED IN THE NATIONAL HEADQUARTERS AND CARRIED BY
 A CLERK TO THE DESK OF THE GENERAL COUNSEL.  THE LATTER INDIVIDUAL THEN
 CARRIED THE NOTIFICATION LETTER TO THE APPROPRIATE NATIONAL FIELD
 REPRESENTATIVE IN THE HEADQUARTERS OFFICE WHO IS RESPONSIBLE FOR
 NEGOTIATION WITH THE GOVERNMENT AGENCY IN QUESTION.  I, THE INSTANCE
 CASE, THE NATIONAL FIELD REPRESENTATIVE OF THE RESPONDENT'S EMPLOYEES
 TESTIFIED THAT NEITHER HE NOR THE GENERAL COUNSEL HAD RECEIVED THE JULY
 21 LETTER.  DURING THE LAST PART OF JULY (AND POSSIBLY THE FIRST FEW
 DAYS IN AUGUST) OF 1977, THE NATIONAL FIELD REPRESENTATIVE IN QUESTION
 WAS OUT OF TOWN ON BUSINESS.  ON SUNDAY, AUGUST 7, THIS REPRESENTATIVE
 LEFT WASHINGTON, D.C. ON ANOTHER BUSINESS TRIP, AND DID NOT RETURN UNTIL
 SUNDAY, AUGUST 21, 1977.  THE GENERAL COUNSEL AND OTHER STAFF MEMBERS
 ALSO ACCOMPANIED THIS REPRESENTATIVE ON THE TRIP.
 
    RESPONDENT ISSUED THE GROOMING STANDARDS CIRCULAR ON AUGUST 15, 1977;
  NO REQUEST FOR NEGOTIATIONS HAD BEEN RECEIVED FROM THE UNION BY THAT
 DATE.  THE ONLY DATE APPEARING ON THE CIRCULAR WAS THE DATE THAT IT WAS
 ISSUED, I.E. AUGUST 15, 1977.  NO PROVISION WAS MADE FOR ANY OTHER
 "EFFECTIVE DATE." THE RESPONDENT'S PROCEDURAL MANUAL REGARDING THE
 ISSUANCE OF CIRCULARS PROVIDES, IN ACCORDANCE WITH ITS NORMAL PRACTICE,
 THAT CIRCULARS ARE EFFECTIVE ON THE DATE OF ISSUANCE UNLESS OTHERWISE
 SPECIFIED.
 
    THE CIRCULAR IN QUESTION ESTABLISHED GROOMING STANDARDS FOR UNIFORMED
 PERSONNEL IN REGION 1.  THE STANDARDS AFFECTED A LARGE NUM0ER OF
 EMPLOYEES IN THE REGION AND CONSTITUTED A DRAMATIC CHANGE IN THE WORKING
 CONDITIONS OF THESE INDIVIDUALS.  THE CIRCULAR REQUIRED, IN PART, THAT
 THE MEN AND WOMEN MUST WEAR THE OFFICIAL UNIFORMS, HEADGEAR, BADGES, AND
 PROPER INSIGNIA AT ALL TIMES;  A SWEATER COULD NOT BE WORN AS AN OUTER
 GARMENT;  EXCESSIVE OR INAPPROPRIATE JEWELRY WAS PROHIBITED.  IN
 ADDITION, THE CIRCULAR REQUIRED THAT HAIR BE CUT TO A SPECIFIED LENGTH;
 BEARDS WERE PROHIBITED.  ANY REQUESTS FOR EXCEPTIONS TO THE GROOMING
 STANDARDS PRESCRIBED IN THE CIRCULAR WERE REQUIRED TO BE BASED UPON
 DOCUMENTED MEDICAL REASONS, CERTIFIED BY A PHYSICIAN AND ACCEPTABLE TO
 THE RESPONDENT.  THE CIRCULAR ALSO STATED:
 
    FAILURE TO CONFORM WITH THESE GROOMING STANDARDS WILL RESULT IN
 DISCIPLINARY ACTION.  ALL
 
    MANAGERS AND SUPERVISORS OF UNIFORMED PERSONNEL OF THE BOSTON REGION
 (RESPONDENT HEREIN) ARE
 
    CHARGED WITH ENFORCEMENT OF THESE GROOMING STANDARDS.  ANY VIOLATIONS
 WILL BE REPORTED
 
    IMMEDIATELY TO THE COGNIZANT PORT DIRECTOR, AREA DIRECTOR, DIRECTOR
 OF PATROL DIVISION AND/OR
 
    DISTRICT DIRECTOR.
 
    THE CIRCULAR WAS SIGNED BY THE ACTING REGIONAL COMMISSIONER AND WAS
 TO BE DISTRIBUTED TO ALL AFFECTED UNIFORMED PERSONNEL WITHIN REGION I.
 
    ON AUGUST 18 ONE OF THE AFFECTED PORT DIRECTORS ISSUED A MEMORANDUM
 TO HIS STAFF STATING, IN PART, AS FOLLOWS:
 
    PLEASE SEE THAT UNIFORMS AND GROOMING ARE IN CONFORMITY WITH CITED
 CIRCULAR NO LATER THAN
 
    08/26/77.
 
   *          *          *          *
 
 
    FEMALE INSPECTORS WILL PLEASE SEE THAT UNIFORMS ARE IN COMPLIANCE AS
 SOON AS POSSIBLE
 
    ESPECIALLY IN REFERENCE TO APPROPRIATE HEADWEAR.
 
    ON AUGUST 19 ANOTHER OFFICER IN THE SAME DISTRICT ISSUED A MEMORANDUM
 TO ALL OF HIS INSPECTORS ALSO DIRECTING THEM TO CONFORM WITH THE
 GROOMING STANDARDS BY AUGUST 26, 1977.  THE MEMORANDUM THEN STATED:
 "ANY INSPECTORS UNABLE TO CONFORM TO THE GROOMING STANDARDS MUST SUBMIT
 A REQUEST FOR AN EXCEPTION BEFORE THIS DATE." HE THEN STATED THAT
 FAILURE TO CONFORM WITH THE STANDARDS WOULD RESULT IN DISCIPLINARY
 ACTION.
 
    ON AUGUST 21 THE NATIONAL FIELD REPRESENTATIVE RETURNED FROM HIS
 BUSINESS TRIP AND RECEIVED A TELEPHONE CALL FROM AN EMPLOYEE IN THE
 ABOVE-MENTIONED DISTRICT WHEREIN THE DATE FOR FULL COMPLIANCE HAD BEEN
 SET FOR AUGUST 26.  THE NATIONAL FIELD REPRESENTATIVE LEARNED OF THE
 CIRCULAR FOR THE FIRST TIME FROM THIS EMPLOYEE.  THE NEXT DAY THE
 REPRESENTATIVE CALLED THE RESPONDENT'S LABOR RELATIONS BRANCH IN BOSTON,
 MASSACHUSETTS TO REQUEST NEGOTIATIONS WITH RESPECT TO THE GROOMING
 STANDARDS CIRCULAR.  HE STATED THAT HIS REQUEST WAS TIMELY IN VIEW OF
 HIS UNDERSTANDING THAT THE CIRCULAR WOULD NOT BE IMPLEMENTED UNTIL
 AUGUST 26.  ON AUGUST 23, THE NATIONAL FIELD REPRESENTATIVE WROTE A
 LETTER TO RESPONDENT'S REGIONAL COMMISSIONER IN BOSTON, MASSACHUSETTS,
 COMPLAINING THAT THE UNION HAD NOT RECEIVED NOTICE OF THE CHANGE IN
 GROOMING STANDARDS IN SUFFICIENT TIME TO EXERCISE ITS RIGHT TO
 NEGOTIATE.  HE STATED THAT THE CIRCULAR SHOULD BE RESCINDED PENDING
 COMPLETION OF NEGOTIATIONS.  THE RESPONDENT CONSISTENTLY REPLIED DURING
 THE AUGUST 22 CONVERSATION, AND IN SUBSEQUENT CONVERSATIONS, THAT NOTICE
 HAD BEEN GIVEN TO THE UNION IN ACCORDANCE WITH THE UNION'S INSTRUCTIONS
 AND THAT THE CIRCULAR HAD ALREADY BEEN IMPLEMENTED.  UNDER THESE
 CIRCUMSTANCES, THE RESPONDENT'S REPRESENTATIVE STATED THAT HE DID NOT
 SEE ANY NEED TO NEGOTIATE BUT THAT HE WOULD BE WILLING TO "MEET AND
 DISCUSS" THE MATTER WITH THE UNION.  ON AUGUST 29 THE NATIONAL FIELD
 REPRESENTATIVE WROTE THE RESPONDENT AND STATED THAT NEGOTIATIONS WOULD
 BE NECESSARY AND THAT "MEETING TO DISCUSS" THE MATTER WOULD NOT SATISFY
 THEIR OBLIGATIONS.
 
    IN THE UNION'S COMPLAINT FILED ON NOVEMBER 21, 1977, THE UNION
 ALLEGED THAT "BY MEANS OF THE REGIONAL CIRCULAR . . . DATED AUGUST 15,
 1977, (RESPONDENT) IMPLEMENTED A POLICY WHICH TOTALLY REVISED THE
 GROOMING STANDARDS FOR UNIFORMED PERSONNEL OF REGION I.  THIS CHANGE WAS
 UNILATERALLY IMPLEMENTED WITHOUT PRIOR NOTICE TO THE EXCLUSIVE
 REPRESENTATIVE."
 
                                CONCLUSIONS
 
    1.  THE FIRST ISSUE FOR CONSIDERATION IS WHETHER THE RESPONDENT
 UNILATERALLY CHANGED THE PAST PRACTICE WITH RESPECT TO SHIFT TRADING IN
 VIOLATION OF SECTIONS 19(A)(1) AND (6).  SECTION 11(A) PROVIDES, IN
 PART, THAT AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE SHALL MEET AND
 CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES
 AND MATTERS AFFECTING WORKING CONDITIONS.  THE PARTIES HAVE STIPULATED
 THAT THE ALLEGED CHANGE IN THE PAST PRACTICE OF SHIFT TRADING
 REPRESENTED A NEGOTIABLE ISSUE UNDER SECTION 11(A).  AN AGENCY IS NOT
 PERMITTED TO ALTER OR CHANGE SUCH WORKING CONDITIONS WITHOUT FIRST
 NOTIFYING THE COLLECTIVE BARGAINING REPRESENTATIVE OF THE EMPLOYEES
 AFFECTED AND, UPON REQUEST, BARGAINING ABOUT SUCH PROPOSED CHANGES
 BEFORE THEY ARE PUT INTO EFFECT.  U.S. ARMY FINANCE AND ACCOUNTING
 CENTER, FORT BENJAMIN HARRISON, INDIANAPOLIS, INDIANA, A/SLMR NO.
 651(1976), 6 A/SLMR 216.
 
    I HAVE CONCLUDED THAT PRIOR TO AUGUST 15, 1977, A LIBERAL SHIFT
 TRADING POLICY WAS IN EFFECT WITHIN THE RESPONDENT'S OGDENSBERG
 DISTRICT.  THE INSPECTORS ROUTINELY REQUESTED PERMISSION TO TRADE SHIFTS
 WITH EACH OTHER;  THESE REQUESTS WERE ALMOST ALWAYS GRANTED WHEN TWO
 INSPECTORS OF EQUAL COMPETENCE MUTUALLY AGREED TO EXCHANGE THEIR SHIFTS.
  SUCH TRADING WAS EXTENSIVE.  ON AUGUST 15 THE RESPONDENT ISSUED A
 MEMORANDUM WHICH SUBSTANTIALLY CHANGED THE WORKING CONDITIONS OF THE
 INSPECTORS BY IMPOSING A RESTRICTIVE POLICY REGARDING SHIFT TRADING.
 THIS NEW POLICY PROHIBITED SHIFT TRADING EXCEPT IN EMERGENCY SITUATIONS.
  AS A DIRECT RESULT OF THIS CHANGE IN POLICY, THE NUM0ER OF REQUESTS FOR
 SHIFT TRADING DRAMATICALLY DECREASED.  /5/ THUS, IT IS CLEAR THAT THE
 RESPONDENT CHANGED A PAST PRACTICE, AND, IN VIEW OF THE STIPULATIONS OF
 THE PARTIES, RESPONDENT WAS REQUIRED TO NOTIFY THE UNION AND, UPON
 REQUEST, BARGAIN ABOUT THE PROPOSED CHANGES BEFORE THEY WERE PUT INTO
 EFFECT.  RESPONDENT FAILED TO NOTIFY THE UNION PRIOR TO MAKING THIS
 CHANGE.
 
    IN REACHING THESE CONCLUSIONS I HAVE REJECTED RESPONDENT'S ARGUMENT
 THAT THE AUGUST 15, 1977, MEMORANDUM WAS MERELY A REAFFIRMATION OF AN
 EXISTING POLICY ANNOUNCED AT THE MEETING OF SEPTEMBER 30, 1976, BETWEEN
 RESPONDENT'S REPRESENTATIVES AND THE PRESIDENT AND VICE PRESIDENT OF THE
 LOCAL UNION CHAPTER.  I HAVE CONCLUDED THAT THE RESPONDENT DID NOT
 ESTABLISH ANY SHIFT TRADING POLICY AT THAT MEETING.  WHEN THE SUBJECT
 WAS RAISED AT THE MEETING BY THE DISTRICT DIRECTOR, THE UNION PRESIDENT
 STRONGLY OPPOSED ANY RESTRICTIVE SHIFT TRADING POLICY.  BETWEEN
 SEPTEMBER 30, 1976 AND AUGUST 15, 1977, THE LIBERAL SHIFT TRADING POLICY
 REMAINED IN EFFECT AND SUCH TRADING WAS EXTENSIVE.  UNDER THE
 CIRCUMSTANCES, I HAVE CONCLUDED THAT THE DISTRICT DIRECTOR'S "PROPOSAL"
 AT THE SEPTEMBER 30 MEETING WAS IN THE NATURE OF A FEELER, AND THAT
 RESPONDENT DROPPED THE IDEA AFTER HEARING THE UNION'S NEGATIVE REACTION.
  IT WAS REASONABLE FOR THE UNION TO HAVE CONSIDERED THE MATTER A DEAD
 ISSUE.  /6/
 
    IN VIEW OF THE FOREGOING CONCLUSIONS, I HOLD THAT THE RESPONDENT
 VIOLATED SECTIONS 19(A)(6) AND (1) OF THE EXECUTIVE ORDER.  SINCE A
 STATUS QUO ANTE REMEDY IS APPROPRIATE IN CASES OF THIS NATURE, U.S. ARMY
 FINANCE ACCOUNTING CENTER, SUPRA, THE AUGUST 15 MEMORANDUM SHOULD BE
 RESCINDED.  IN THE EVENT THAT RESPONDENT STILL DESIRES TO CHANGE THE
 WORKING CONDITIONS IN QUESTION, IT MUST PROVIDE NOTICE TO, AND, UPON
 REQUEST, MEET AND CONFER WITH THE NTEU, THE EXCLUSIVE REPRESENTATIVE OF
 RESPONDENT'S EMPLOYEES.
 
    2.  THE NEXT ISSUES FOR CONSIDERATION ARISE OUT OF RESPONDENT'S
 ISSUANCE ON AUGUST 15, 1977, OF A NEW SET OF GROOMING STANDARDS FOR
 UNIFORMED PERSONNEL IN REGION I.  RESPONDENT CONCEDES THAT THE NEW
 STANDARDS CONSTITUTED A CHANGE IN WORKING CONDITIONS WITHIN THE AMBIT OF
 SECTION 11(A) OF THE EXECUTIVE ORDER, AND THAT IT WAS OBLIGATED TO
 NOTIFY THE UNION PRIOR TO IMPLEMENTATION SO THAT THE UNION WOULD HAVE
 AMPLE OPPORTUNITY TO REQUEST BARGAINING.  THE UNION CONTENDS THAT
 RESPONDENT VIOLATED SECTION 19(A)(6) AND (1) OF THE ORDER BY FAILING TO
 PROPERLY NOTIFY THE UNION OF THE IMPENDING CHANGE IN GROOMING STANDARDS,
 AND BY REFUSING TO GRANT THE UNION'S AUGUST 22 REQUEST FOR A RESCISSION
 OF THE AUGUST 15 CIRCULAR AND FOR NEGOTIATIONS ON THE MATTER.
 
    TAKING THE UNION'S ARGUMENTS IN REVERSE ORDER, AND ASSUMING ARGUENDO
 THAT PROPER NOTICE WAS GIVEN, I HAVE CONCLUDED THAT THE AUGUST 22
 REQUEST FOR NEGOTIATIONS WAS UNTIMELY SINCE THE CIRCULAR WAS IMPLEMENTED
 BY RESPONDENT PRIOR TO THAT DATE.  IN THIS REGARD, THE CIRCULAR WAS
 DATED AUGUST 15, 1977, AND NO OTHER "EFFECTIVE DATE" WAS MENTIONED.  IN
 ACCORDANCE WITH RESPONDENT'S CUSTOM AND PUBLISHED PROCEDURES, CIRCULARS
 ARE EFFECTIVE WHEN ISSUED UNLESS OTHERWISE SPECIFIED.  THE CIRCULAR IN
 QUESTION WAS EFFECTIVE ON AUGUST 15.  /7/
 
    THE UNION CONTENDS THAT ITS AUGUST 22 REQUEST FOR BARGAINING WAS
 TIMELY, ARGUING THAT THE STANDARDS WERE NOT IMPLEMENTED UNTIL AUGUST 26.
  IN SUPPORT OF ITS CONTENTION, THE UNION RELIES UPON MEMORANDA DATED
 AUGUST 18 AND 19, ISSUED IN ONE OF RESPONDENT'S DISTRICTS.  IN THE FIRST
 MEMORANDUM, THE PORT DIRECTOR STATED:  "PLEASE SEE THAT UNIFORMS AND
 GROOMING ARE IN CONFORMITY WITH CITED CIRCULAR NO LATER THAN 08/26/77."
 HOWEVER, THE DOCUMENT DID NOT SET AUGUST 26 AS THE DATE FOR THE
 COMMENCEMENT OF IMPLEMENTATION;  UNIFORMED PERSONNEL WERE TO BEGIN
 COMPLYING IMMEDIATELY AND FAILURE TO CONFORM AFTER AUGUST 26 WOULD
 RESULT IN DISCIPLINARY ACTION.  THIS CONSTRUCTION IS SUPPORTED BY THE
 FINAL PARAGRAPH OF THE MEMORANDUM WHICH STATED THAT FEMALE INSPECTORS
 SHOULD BE IN COMPLIANCE "AS SOON AS POSSIBLE ESPECIALLY IN REFERENCE TO
 APPROPRIATE HEADWEAR." LIKEWISE, THE AUGUST 19 MEMORANDUM INSTRUCTED
 INSPECTORS TO CONFORM "BY FRIDAY, AUGUST 26, 1977." HOWEVER, THE
 MEMORANDUM ALSO REQUIRED THAT REQUESTS FOR EXCEPTIONS BE SUBMITTED
 BEFORE THIS DATE.  UNDER THE CIRCULAR, SUCH REQUESTS FOR EXCEPTIONS HAD
 TO BE BASED UPON DOCUMENTED MEDICAL REASONS AND CERTIFIED BY A
 PHYSICIAN.  HERE AGAIN, IMMEDIATE ACTION WAS REQUIRED AND AUGUST 26 WAS
 MERELY A DEADLINE FOR PURPOSES OF DISCIPLINARY ACTION.  THUS IT IS CLEAR
 THAT THE UNION'S AUGUST 22 REQUEST FOR NEGOTIATIONS WAS MADE AFTER THE
 NEW GROOMING STANDARDS HAD BEEN IMPLEMENTED BY THE RESPONDENT.
 
    THE NEXT ISSUE FOR CONSIDERATION IS WHETHER RESPONDENT APPROPRIATELY
 DISCHARGED ITS OBLIGATION TO GIVE THE UNION ADEQUATE, TIMELY, AND
 REASONABLE NOTICE PRIOR TO CHANGING THE GROOMING STANDARDS.  THE NTEU
 NATIONAL PRESIDENT HAD CLEARLY INSTRUCTED RESPONDENT'S REGIONAL
 COMMISSIONER TO ADDRESS ALL SUCH NOTIFICATIONS TO THE GENERAL COUNSEL OF
 NTEU, "1730 K STREET, N.W., SUITE 1101, WASHINGTON, D.C. 20006," AND
 WARNED THAT "NOTIFICATION TO ANY OTHER INDIVIDUAL WILL NOT CONSTITUTE
 NOTIFICATION TO NTEU." THESE INSTRUCTIONS, WHICH SPECIFY THE PRECISE ZIP
 CODE, CLEARLY CONTEMPLATE THAT NOTIFICATION BE SENT BY MAIL.  IN STRICT
 COMPLIANCE WITH THESE INSTRUCTIONS, ON JULY 21, 1977, THE RESPONDENT
 MAILED A LETTER TO THE GENERAL COUNSEL AT THE ABOVE ADDRESS, NOTIFYING
 HIM OF RESPONDENT'S INTENTION TO ISSUE THE GROOMING STANDARDS CIRCULAR
 ON OR ABOUT AUGUST 15, 1977.  A COPY OF THE PROPOSED CIRCULAR WAS
 ATTACHED TO THIS LETTER.  AT THE HEARING, THE UNION QUESTIONED WHETHER
 THIS LETTER HAD, IN FACT, BEEN DEPOSITED IN THE U.S. MAIL.  RESPONDENT
 ADDUCED EXTENSIVE EVIDENCE ON THIS POINT, AND I AM CONVINCED THAT THE
 LETTER WAS MAILED ON JULY 21.
 
    THE UNION'S NATIONAL FIELD REPRESENTATIVE, WHO WAS ALSO LOCATED AT
 THE ABOVE ADDRESS, TESTIFIED THAT HE WAS RESPONSIBLE FOR UNION MATTERS
 RELATING TO THE RESPONDENT'S EMPLOYEES AND THAT THE GENERAL COUNSEL
 WOULD HAVE GIVEN THE LETTER TO HIM IF HE HAD RECEIVED IT.  ALTHOUGH THE
 GENERAL COUNSEL DID NOT TESTIFY AT THE HEARING, THE NATIONAL FIELD
 REPRESENTATIVE STATED THAT NEITHER HE NOR THE GENERAL COUNSEL RECEIVED
 THE LETTER.  MEANWHILE, THE RESPONDENT DID NOT RECEIVE ANY REQUEST FROM
 THE UNION TO NEGOTIATE WITH RESPECT TO THE PROPOSED GROOMING STANDARDS.
 RESPONDENT ISSUED THE GROOMING STANDARDS CIRCULAR ON AUGUST 15, AND DID
 NOT RECEIVE A REQUEST FOR NEGOTIATIONS UNTIL AUGUST 22, WHICH WAS AFTER
 THE STANDARDS HAD BEEN IMPLEMENTED.  THE JULY 21 LETTER WAS NEVER
 RETURNED BY THE POST OFFICE, AND IT WAS NOT UNTIL AUGUST 22 THAT
 RESPONDENT LEARNED OF THE UNION'S CONTENTION THAT THE LETTER HAD NOT
 BEEN RECEIVED.
 
    I MUST CONCLUDE AND HOLD THAT RESPONDENT DID NOT VIOLATE SECTION
 19(A)(6) AND (1) OF THE EXECUTIVE ORDER.  EVEN IF IT COULD BE PROVED
 THAT THE JULY 21 LETTER WAS LOST IN THE U.S. POSTAL SYSTEM (AND NEVER
 RECEIVED BY THE UNION), RESPONDENT CANNOT BE SAID TO HAVE COMMITTED AN
 UNFAIR LABOR PRACTICE UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE.
 RESPONDENT MAILED THE LETTER OF NOTIFICATION TO THE UNION IN ACCORDANCE
 WITH THE UNION'S INSTRUCTIONS MORE THAN 3 WEEKS PRIOR TO IMPLEMENTING
 THE CHANGE IN GROOMING STANDARDS.  IF THE NTEU HAD NOT REQUIRED THAT
 NOTIFICATION BE MAILED TO ITS REPRESENTATIVE IN WASHINGTON, D.C., THE
 RESPONDENT WOULD HAVE BEEN FREE TO HAND-DELIVER THE NOTICE TO THE UNION
 AT THE LOCAL LEVEL WITHIN THE BOSTON REGION.  HOWEVER, SINCE THE LATTER
 METHOD OF NOTICE WAS NOT ACCEPTABLE TO THE UNION, I HOLD THAT THE UNION
 MUST BEAR THE RISK OF ANY LOSS THAT MIGHT HAVE OCCURRED IN THE U.S.
 POSTAL SYSTEM.  RESPONDENT'S GOOD FAITH EFFORT TO COMPLY WITH THE
 UNION'S TERMS FOR NOTIFICATION CANNOT FAIRLY BE EQUATED WITH A FAILURE
 TO MAKE TIMELY AND REASONABLE NOTIFICATION.  HAVING COMPLIED WITH THESE
 TERMS, WHICH WERE REASONABLY CALCULATED TO NOTIFY THE UNION, RESPONDENT
 HAD NO OBLIGATION TO BARGAIN WITH RESPECT TO THE AUGUST 15 GROOMING
 STANDARDS AFTER THEY HAD BEEN IMPLEMENTED THROUGHOUT REGION I.
 ACCORDINGLY, THIS ASPECT OF THE COMPLAINT SHOULD BE DISMISSED.  /8/
 
                              RECOMMENDATION
 
    UPON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
 LAW AND PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED,
 AND SECTION 203.26(B) OF THE RULES AND REGULATIONS, I RECOMMEND THAT THE
 ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS ADOPT THE
 FOLLOWING ORDER DESIGNED TO EFFECTUATE THE POLICIES OF THE ORDER.
 
                             RECOMMENDED ORDER
 
    PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER 11491, AS AMENDED,
 AND SECTION 203.26(B) OF THE RULES AND REGULATIONS, THE ASSISTANT
 SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT
 THE
 DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, REGION I, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) UNILATERALLY INSTITUTING CHANGES WITH RESPECT TO SHIFT TRADING BY
 ITS EMPLOYEES WITHOUT
 
    PROVIDING NOTICE TO, AND, UPON REQUEST, MEETING AND CONFERRING WITH
 THE NATIONAL TREASURY
 
    EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OR
 ANY OTHER EXCLUSIVE
 
    REPRESENTATIVE;  AND
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, FOR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND PROVISIONS OF THE ORDER:
 
    (A) RESCIND AND REVOKE THE TERMS AND CONDITIONS OF EMPLOYMENT SET
 FORTH IN ITS MEMORANDUM
 
    OF AUGUST 15, 1977, PERTAINING TO THE CIRCUMSTANCES UNDER WHICH SHIFT
 TRADING WOULD BE
 
    PERMITTED, AND ANY SUBSEQUENT MEMORANDA ISSUED TO EFFECTUATE THOSE
 TERMS AND CONDITIONS.
 
    (B) NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION OF ANY INTENDED
 CHANGE IN THE PRACTICE OF
 
    SHIFT TRADING, AND, UPON REQUEST, MEET AND CONFER IN GOOD FAITH ON
 SUCH INTENDED CHANGE.
 
    (C) POST AT ITS FACILITIES IN THE OGDENSBERG DISTRICT COPIES OF THE
 ATTACHED NOTICE MARKED
 
    "APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF
 LABOR FOR LABOR-MANAGEMENT
 
    RELATIONS.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
 REGIONAL COMMISSIONER,
 
    REGION I, U.S. CUSTOMS SERVICE, DEPARTMENT OF THE TREASURY, AND THEY
 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 U.S.
 CUSTOMS SERVICE, REGION I,
 
    DEPARTMENT OF THE TREASURY, SHALL TAKE REASONABLE STEPS TO INSURE
 THAT SUCH NOTICES ARE NOT
 
    ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL.
 
    (D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
 ASSISTANT SECRETARY, IN
 
    WRITING WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
 HAVE BEEN TAKEN TO COMPLY
 
    HEREWITH.
 
                             RANDOLPH D. MASON
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOVEMBER 15, 1978
 
    WASHINGTON, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
        PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
 
          OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
 
           EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
 
             AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
 
                                  SERVICE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INSTITUTE CHANGES WITH RESPECT TO THE PRACTICE OF SHIFT
 TRADING AND ANY OTHER TERMS AND CONDITIONS OF EMPLOYMENT, WITHOUT FIRST
 NOTIFYING AND, UPO