09:0116(15)CA - Customs Service, Region V, New Orleans, LA and NTEU and NTEU Chapter 168 -- 1982 FLRAdec CA
[ 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).