16:0506(73)CA - Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, DC and Central Region and NTEU and NTEU Chapter 88 -- 1984 FLRAdec CA
[ v16 p506 ]
16:0506(73)CA
The decision of the Authority follows:
16 FLRA No. 73 UNITED STATES DEPARTMENT OF TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WASHINGTON, D.C. AND CENTRAL REGION Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION CHAPTER 88 Charging Party Case Nos. 5-CA-535 5-CA-536 5-CA-537 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 and recommending that it cease and desist therefrom and take certain affirmative action. The Judge also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that those portions of the consolidated complaint be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs to portions of the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and Recommended Order, except as modified herein. In agreement with the Judge's conclusion, the Authority finds that Respondent's failure to provide the union with adequate prior notice of its decision to change from direct to general supervision of the one-man distilled spirits plants (DSPS), and to detail Firearm Inspectors from the Cincinnati Area Office to the Firearms Section of the Regional Office, was violative of section 7116(a)(1) and (5) of the Statute. In so finding, the Authority emphasizes that where an agency in exercising a management right under section 7106 of the Statute changes conditions of employment of unit employees, there exists a statutory duty to negotiate if such change results in more than a de minimis impact upon unit employees or such impact is reasonably foreseeable. See U.S. Government Printing Office, 13 FLRA No. 39 (1983) and Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174 (1984). Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Department of Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C. and its Central Region: 1. Cease and desist from: (a) Changing the method of supervision of distilled spirits plants and instituting details of Firearm Inspectors to the Firearms Section to perform the duties of Firearm Examiners without first notifying the National Treasury Employees Union and affording it the opportunity to negotiate concerning the impact and implementation of such changes. (b) Refusing to bargain, upon request, with the National Treasury Employees Union concerning the impact upon employees of the change of supervision to general supervision from direct supervision of distilled spirits plants in the Louisville Area and concerning the impact upon employees of the detailing of Firearm Inspectors in the Cincinnati Area to the Firearms Section to perform the duties of Firearm Examiners. (c) In any like or related manner, interfering with, restraining, or coercing its employees in the rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Notify the National Treasury Employees Union of any intention to change the method of supervision of distilled spirits plants or to institute details of Firearm Inspectors to a Firearms Section to perform the duties of Firearm Examiners and, upon request, negotiate with such representative concerning the impact and implementation of such actions. (b) Bargain, upon request, with the National Treasury Employees Union concerning the impact upon employees of the change of supervision to general supervision from direct supervision of distilled spirits plants in the Louisville Area and concerning the impact upon employees of the detailing of Firearm Inspectors in the Cincinnati Area to the Firearms Section to perform the duties of Firearm Examiners. (c) Post at its facilities 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 an appropriate official and they shall be posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director of Region V, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply with the Order. IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-537, be, and it hereby is, dismissed. Issued, Washington, D.C., November 15, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, 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 UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT change the method of supervising distilled spirits plants or institute details of Firearm Inspectors to the Firearms Section to perform the duties of Firearm Examiners without first notifying the National Treasury Employees Union and affording it the opportunity to negotiate concerning the impact and implementation of such changes. WE WILL NOT refuse to bargain, upon request, with the National Treasury Employees Union concerning the impact upon employees of the change of supervision to general supervision from direct supervision of distilled spirits plants in the Louisville Area and concerning the impact upon employees of the detailing of Firearm Inspectors in the Cincinnati Area to the Firearms Section to perform the duties of the Firearm Examiners. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL notify the National Treasury Employees Union of any intended change in the method of supervising distilled spirits plants and institution of details of Firearm Inspectors to a Firearms Section to perform the duties of Firearm Examiners and upon request, negotiate with such representative concerning the impact and implementation of such actions. WE WILL bargain, upon request, with the National Treasury Employees Union concerning this impact upon employees of the change of supervision to general supervision from direct supervision of distilled spirits plants in the Louisville Area and concerning the impact upon employees of the detailing of Firearm Inspectors in the Cincinnati Area to the Firearms Section to perform the duties of Firearm Examiners. (Activity) 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 this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority, whose address is: Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois 60604 and whose telephone number is: (312) 353-6306. -------------------- ALJ$ DECISION FOLLOWS -------------------- UNITED STATES DEPARTMENT OF TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WASHINGTON, D.C. AND CENTRAL REGION Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 88 Charging Party Case Nos. 5-CA-535 5-CA-536 5-CA-537 Michael Sitcov, Esq. For the Respondent Michael Barkow, Esq. For the Charging Party Gregory A. Miksa, Esq. For the General Counsel, Federal Labor Relations Authority Before: SAMUEL A. CHAITOVITZ Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101 et seq. (hereinafter referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority, 5 C.F.R. Chapter XIV, Sec. 2410 et seq. A charge was filed in Case No. 5-CA-535 on May 19, 1980 by National Treasury Employees Union (hereinafter called NTEU) and NTEU Chapter 88 (collectively referred to as Charging Party and/or Union) against Bureau of Alcohol, Tobacco and Firearms (hereinafter called ATF) and ATF Central Region (both collectively referred to as Respondent). Charges were filed in Case Nos. 5-CA-536 and 537 on May 19, 1980 by Charging Party against Respondent. Pursuant to the above described charges the General Counsel of the Federal Labor Relations Authority (FLRA) by the Regional Director for Region 5 issued an Order Consolidating Cases, Complaint and Notice of Hearing on July 31, 1980. The Order Consolidating Cases, Complaint and Notice of Hearing alleges that Respondent violated Section 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate concerning changes in supervision at distilled spirits plants, as alleged in Case No. 5-CA-535; concerning the detailing of inspectors to the Regional Office to perform Firearm Examiner duties, as alleged in 5-CA-536; and concerning the detailing of plant inspectors for 30 day periods from Lawrenceburg, Indiana to Cincinnati Area Office and from the Cincinnati Are office to Lawrenceburg, Indiana, as alleged in Case No. 5-CA-537. Respondent in its answer denied all unfair labor practice allegations. A hearing in this matter was conducted before the undersigned in Cincinnati, Ohio. The General Counsel of the FLRA, Respondent and Charging Party were represented by counsel and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Briefs were filed by all parties and have been fully considered. The parties were granted until April 10, 1981 to file reply briefs, and the reply brief filed by the General Counsel of the FLRA has been duly considered. Upon the entire record /1/ in the matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following: Findings of Fact The Union is the exclusive collective bargaining representative of all non-professional wage-grade and general-schedule employees in Respondent's Regional Offices including its Central Regional, /2/ which has area offices in a number of cities including Cincinnati, Ohio; Indianapolis, Indiana; and Louisville, Kentucky. Inspectors employed in Respondent's various regions, including in the Central Region, are employees in the regional unit described above represented by NTEU. NTEU, Chapter 88 is the agent of NTEU and serves as NTEU's agent in the area covered by Respondent's Central Region. NTEU Chapter 88's President and Vice-President are responsible for all contacts and communications with Respondent's Central Region's management for at least the last four years. Further NTEU Assistant Counsel Jean Rogers has been responsible for all communications between NTEU and ATF at the National level. Case No. 5-CA-535 Inspectors employed within AFT's Central Region supervise privately operated "In-Bond" distilled spirits plants (hereinafter referred to in the singular as DSP and in the plural as DSPS). /3/ Prior to April 1980, DSPS were under direct supervision wherein the inspector assigned to a particular DSP would unlock it in the morning, remain on the premises and perform duties throughout the day and then lock up the DSP at close of business. /4/ The on premises duties included locking and unlocking warehouses and tanks, gauging spirits, auditing plant records and performing general inspector duties. In the latter part of 1979, pursuant to the Distilled Spirits Tax Revision Act of 1979, also called the Trade Agreements Act of 1979 (hereinafter referred to as the Trade Agreement's Act and the Distilled Spirits Act), /5/ Respondent transmitted to NTEU's National office a memorandum whose subject was "Implementing Procedures for All-In-Bond, the Distilled Spirits Tax Revision Act of 1979" and published in the Federal Register AFTC Rules and Regulations for Implementing the Distilled Spirits Act, 27 CFR Parts 5 et al, (44 Fed.Reg. 239, page 71612 et seq., Tuesday, December 11, 1979). The foregoing provided, as permitted by the Distilled Spirits Act, that DSPS would go from direct supervision to general supervision after certain preconditions had been met and certain steps taken by both the private proprietors of the DSPS and employees of AFT. On February 7, 1980 Respondent's Central Region All-In-Bond Coordinator issued a memorandum to Central Region inspectors stating that inspectors would not be removed from DSPS direct supervisor assignments until all proprietors' internal controls, security and storage records had been certified by the Audit Section. Under the plan of general supervision the inspector unlocks the DSP in the morning, leaves the premises /6/ and performs various duties, within his job description, at other locations, which may or may not be DSPS, and then returns to the original DSP at the close of the work day to lock up the premises. On April 7, 1980, NTEU Chapter 88 President Martin J. Connell received a telephone call from a unit employee and was advised that ATF had proposed and started to implement a plan to change ATF's control over the DSPS in the Louisville, Kentucky area of the Central Region by reducing the supervision in five single inspector DSPS from direct to general supervision. This was the first notification NTEU Chapter 88 President Connell, or the NTEU, had of these changes. Prior to April 7, 1980 NTEU was not advised that supervision in the DSPS would be curtailed or reduced or changed from direct supervision to general supervision absent a proprietor security statement being filed and the specific DSP being inspected and certified as provided by ATF's regulations. NTEU Chapter 88 President Connell overheard ATF supervisory Inspector John Beauchamp and Joseph Kamber telephoning affected inspectors and plant proprietors explaining the new general supervision procedures. NTEU Chapter 88 President Connell approached AFT Area Supervisor Walls and advised him that the instituting of general plant supervision was a change in practice and working conditions and that the NTEU had not been notified of the change. Supervisor Walls replied that he was establishing general supervision plants at the direction of the AFT Central Region and that implementation would commence on April 14, 1980. On or about April 10, 1980 President Connell sent a letter to AFT Central Region Personnel Officer Robert H. Lumpkin stating that President Connell had not received notice of the impending April 14 change to general plant supervisor, stating that he had just learned of the change and requesting negotiations regarding the substance, impact and implementation of the proposed change and that implementation of the change be postponed pending the outcome of the bargaining. On April 10, 1980 Supervisory Inspectors Beauchamp and Kamber presented a memorandum to Supervisor Walls setting forth a schedule for conversion of the DSPS to general supervision, including a list of affected plants, the dates of conversion and an estimation of how long it would take inspectors to perform the plant supervision on each individual plant. On April 14, the change to general supervision was implemented. By a memorandum dated April 24, 1980 Personnel Officer Lumpkin advised NTEU Chapter 88 President Connell that the April 10, 1980 request "to negotiate the assignment of Inspectors in Louisville, Kentucky from warehouses to other duties during the day . . . deal(s) with . . . assignment to work." The memorandum further stated that ATF is privileged not to negotiate concerning this matter and that it had "elected not to negotiate . . . " concerning this issue. The conversion to general supervision was eventually completed in the Central Region. /7/ Prior to this conversion, and in fact to date, no security statements necessary for plant certification had been filed for the 5 affected one-man plants and certification had not accomplished prior to conversion to general supervision. Prior to April 1980, at both one-man and multi-man DSPS, approximately 10 inspectors assigned in the Louisville Area remained at such DSPS their entire 8-hour day while three inspectors, when assigned to multiman DSPS, occasionally left the plants to perform other assignments. The inspectors were transferred from one DSP to another every two to six months. Accordingly all inspectors would be affected by the conversion to DSPS-General Plant Supervision at the 5 affected one-man DSPS by virtue of their eventual rotation to such plants. Subsequent to the April 1980 change of the DSPS to General Plant Supervision, at the one man DSPS, the inspector would leave the DSP after unlocking the plant and doing some checks, in order to perform other functions and duties elsewhere, returning to the DSP to lock it up at the end of the workday. None of the affected inspectors were required to engage in any duties outside of their position descriptions. Prior to April 1980 Inspectors assigned to the one-man DSPS would drive or take public transportation to the plants in question. They did not need any transportation during the workday. There were three GSA cars available to perform non-DSPS inspection duties and these were almost exclusively performed by three Louisville inspectors. After the April 1980 change to general supervision eight inspectors were regularly assigned to perform non-DSPS inspections with no increase in the total number of available GSA cars. Thus inspectors found public transportation insufficient and, because of there were only three GSA cars, found they had to use their own vehicles to perform their non-DSPS inspection duties. Some of these duties involved extensive travel and some of the inspectors were concerned whether their automobiles were safe or road worthy. Inspectors were reimbursed for such use of their private automobiles. Prior to April 1980 inspectors doing DSPS work at one-man plants wore casual work attire throughout the day. After the change to general supervision inspectors wore casual work clothes to perform their duties in the DSPS and then needed changes of clothes, coats and ties, in order to perform their additional duties which involved meeting the general public and high industry officials. Prior to the April 1980 change, inspectors assigned to one-man plants could store lunches in refrigerators located in the government offices in the DSPS and there were usually coffee pots available. After the change to general supervision the affected inspectors were not at the one-man DSPS at lunch hour and thus could no longer utilize the refrigerators and coffee pots. Thus they had to spend more money for lunch and coffee breaks. Prior to the April 1980 change, inspectors assigned to the one-man DSPS could be readily contacted at work with respect to family emergencies. Subsequent to the change to general supervision the affected inspectors were much more difficult to contact, if they could be contacted at all. Subsequent to the April 1980 change to general supervision the DSPS inspectors, who had limited experience and training in non-DSPS aspects of inspector duties and responsibilities, were called upon to perform non-DSPS inspector duties in the field, with limited supervisory availability and limited training. NTEU filed an unfair labor practice charge against ATF on January 31, 1980 in Case No. 3-CA-838. NTEU and ATF signed a memorandum of understanding on October 1, 1980 which states in part: "(1) NTEU will withdraw with prejudice the unfair labor practice concerning the Distilled Spirits Tax Revision Act (Case No. 3-CA-838). (2) . . . . (3) . . . . (4) This memorandum of understanding constitutes full and complete settlement and satisfaction of any and all causes of action, damages, claims and demands related to the implementation of the Act." Withdrawal of the Unfair Labor Practice Charge in Case No. 3-CA-838 was approved by the Regional Director, Region 3, FLRA by letter dated September 24, 1980. /8/ No withdrawal requests or settlement agreements were approved or entered into by any Regional Director of the FLRA with respect to Case No. 5-CA-535. Case No. 5-CA-536 On or about April 14, 1980 NTEU Chapter 88 Steward Glenn Hagar learned from unit employees that GS 7 and 9 Firearm Inspectors in the Cincinnati Area Office had been detailed on or about April 1, 1980 to the Regional Office Firearms Section, located in the same building as the Cincinnati Area Office. NTEU Chapter 88 received no notice of this detail from any agent of ATF. On or about April 21, 1980 Union Steward Hagar notified NTEU Chapter 88 President Connell about this detail. By letter dated April 21, 1980 to ATF Regional Personnel Officer Lumpkin, NTEU Chapter 88 President Connell requested to bargain over the substance, impact and implementation of the two week assignments of these inspectors to the Firearms Section to perform the duties of Firearm Examiners. Personnel Officer Lumpkin's response to April 24, 1980 denied President Connell's request to bargain. The assignments of the inspectors to the Firearms Section were made because there was a backlog of firearm applications that had to be processed. Area supervisors were responsible for choosing which inspectors would be assigned to the Firearms Section and neither NTEU Chapter 88 nor the inspectors themselves were advised of the basis for selection of the inspectors for assignment. There was no plan to see that these details were equitably distributed among affected employees. The detail consisted of processing firearm applications, separating and processing 5 copy license forms and reviewing the forms to be sure they were completed. These were routine tasks usually handled by Firearm Examiners, GS 6 clerks. The foregoing were not duties set forth in the inspector position description. The inspectors' duties ordinarily involved meeting with high and middle level corporate management on a daily basis. Between April 1, 1980 and mid-May 1980 a total of six inspectors were assigned on such two week details. This was the first such detail President Connell could recall in his 16 years of experience and the record does not establish that previously there had been such details in the Central Region, although details had been employed in a similar situation in the North-Atlantic Region. Article 10 of the collective bargaining agreement covers "Details". Section 3 of Article 10 provides that a detail is a temporary assignment of an employee to a different position for a specified period. Section 2 sets forth the circumstances under which ATF can detail employees to a lower-graded position. /9/ Case No. 5-CA-537 On or about April 9, 1980 NTEU Chapter 88, through Shop Steward Hagar, became aware that ATF was already implementing a training program whereby certain DSPS inspectors from the Lawrenceburg, Indiana post-of-duty were assigned to the Cincinnati Area Office for 30 days and certain inspectors were assigned from the Cincinnati Area Office to the Lawrenceburg post-of-duty for 30 day periods. Union Steward Hagar received this information as an employee, a DSPS inspector, when told of his assignment under this program on April 9, 1980. NTEU Chapter 88 had no prior notice of any kind that ATF was implementing this program. Steward Hagar contacted President Connell and advised him of the institution of the reciprocal assignments from Lawrenceburg to Cincinnati. By letter dated April 9 to Personnel Officer Lumpkin President Connell requested to bargain about the substance, impact and implementation of the program and that its implementation be postponed pending the outcome of the negotiations. Personnel Officer Lumpkin responded by the letter of April 24, 1980 wherein he refused to negotiate concerning this matter. The reciprocal assignment training program between Lawrenceburg and Cincinnati continued during April and May 1980. Lawrenceburg is approximately 25 miles from Cincinnati. The record establishes that the Lawrenceburg inspectors, when working at their home office, were assigned to DSPS inspector work and such work constituted 90 to 95 percent of the inspectors' responsibilities. While assigned to the Cincinnati Area Office the Lawrenceburg inspectors were assigned no DSPS inspections; rather they performed inspections concerning brewery and explosive and firearm compliance matters, matters which were very unfamiliar to some of the Lawrenceburg inspectors. With respect to at least one of the Lawrenceburg inspectors, /10/ while assigned to Cincinnati, his commuting time to work was increased by 30 to 45 minutes each way; thus he frequently arrived home later than when he was commuting to and from Lawrenceburg. He was required to wear more formal clothing suited to inspection work in Cincinnati as contrasted to the casual work clothes worn while performing DSPS inspections. Lawrenceburg post-of-duty came under the jurisdiction of the Cincinnati area office in mid 1979. The April and May 1980 training assignments between Lawrenceburg and Cincinnati were the first such assignments between these two offices since Lawrenceburg came under the jurisdiction of the Cincinnati Area Office. Since 1975 or 1976 there has been rotation of inspectors between inspectors assigned to the Cincinnati Area Office and inspectors assigned to DSP Ohio 1. The work in these two locations are different. Prior to it becoming under the jurisdiction of the Cincinnati Area Office, Lawrenceburg was under the jurisdiction of the Indianapolis, Indiana Area Office and there had been occasions when Lawrenceburg inspectors were temporarily assigned to the Indianapolis office for training. Discussion and Conclusions Issues (a) Whether Respondent failed and refused to afford the Union adequate notice and/or an opportunity to bargain concerning the implementation and impact on employee working conditions of its change to "DSPS-General Plant Supervision" at five Louisville, Kentucky area In-Bond Distilled Spirits Plants in April 1980, in violation of 5 U.S.C. 7116(a)(1) and (5). (b) Whether Respondent failed and refused to afford the Union adequate notice and/or an adequate opportunity to bargain concerning the implementation and impact on employee working conditions of its detail of six employee Inspectors from its Cincinnati Area Office to its Regional Office Firearms Section to perform Firearm Examiner duties in April and May 1980, in violation of 5 U.S.C. 7116(a)(1) and (5). (c) Whether Respondent failed and refused to afford the Union adequate notice and/or an opportunity to bargain concerning the implementation and impact on employee working conditions of its institution of a program of reciprocal assignments of Inspectors for 30-day periods between its Lawrenceburg, Indiana post-of-duty and its Cincinnati Area Office in violation of 5 U.S.C. 7116(a)(1) and (5). 5-CA-535 Respondent urges that the "settlement" entered into by ATF and NTEU in connection with Case No. 3-CA-838 also disposes of Case No. 5-CA-535 because the "settlement" states that it constitutes the full "settlement and satisfaction of any and all causes of action . . . and demands related to the implementation of the (Distilled Spirits Tax Revision) Act." Sections 2423.29 and 2423.11 of the FLRA's Rules and Regulations require Regional Director approval for withdrawals or settlement of unfair labor practice cases. The Respondent makes extensive argument urging that in the federal sector unfair labor practice cases involve private rights between the parties and not public rights. Although I am disposed to reject ATF's position, I need not reach it; rather I am bound to follow the FLRA's Rules and Regulations which require a Regional Director's approval of and participation in the withdrawal or settlement of a case. Accordingly, because the Regional Director for Region 5 has neither approved a withdrawal nor entered into a settlement in Case No. 5-CA-535, I must reject ATF's contention that this matter has already been settled and is not appropriately before me. The record establishes that change from direct supervision to general supervision of the one-man DSPS was a substantial change in the affected inspectors' working conditions, requiring them to travel to additional locations during the day and to perform tasks which, although in their job descriptions, they had not routinely performed. The impact on the inspectors was substantial requiring them to deal with additional travel problems, communication problems in case of personnel emergencies, performing duties with which they were unfamiliar, etc. Accordingly NTEU was entitled to bargain about the impact and implementation of this change. /11/ NTEU was entitled to notice sufficiently in advance of the change it enable it to request to bargain about the impact and implementation of the change before the change became effective. Such notice of the change was never given to NTEU, and by failing in this responsibility ATF violated Section 7116(a)(5) and (1) of the Statute. U.S. Air Force, AFLC, Aerospace Guidance and Meteorology Center, Newark, Ohio, 4 FLRA No. 70 (1980) (hereinafter called the Air Force Case). ATF's refusal to bargain about the impact and implementation of the change, after being specifically asked to do so by NTEU, constituted a violation of Section 7116(a)(5) and (1) of the Statute. /12/ ATF's contention that, because it was required by the Trade Agreement Act to make the subject changes, it was somehow relieved of its obligation to bargain about the impact and implementation of such change is rejected. Although the Trade Agreement Act might have required the subject change in working conditions, there is no showing that it in anyway limited ATF's ability to bargain with NTEU with respect to the implementation of the changes or the many ways to minimize the adverse impact on employees resulting from the change. Cf. NLRB Region V, 2 FLRA No. 42 (1979). Accordingly, it is concluded that ATF violated Sections 7116(a)(5) and (1) of the Statute by failing to give NTEU notice of the change from direct to general supervision of the DSPS and by refusing, after being asked, concerning the implementation and impact of such change. 5-CA-536 It is concluded that the detailing of the Firearm Inspectors to the Firearms Section to perform the primarily clerical duties of the Firearm Examiners constitutes a substantial change in the working conditions of the inspectors with foreseeable and substantial impact on the inspectors, including affecting career development and work outside their position descriptions. Accordingly NTEU was entitled to advance notice of the change to enable it to bargain concerning the implementation of the change and the impact before the change became effective. /13/ In the instant case ATF did not give the NTEU the required notice of the change and, after requested to bargain by NTEU, refused to bargain concerning the implementation of the change and its impact on the affected inspectors. ATF urges that its conduct was not a violation of Section 7116(a)(5) of the Statute because firearm applications have to be processed within 45 days and the Firearms Section was short of staff. There is no dispute that ATF was faced with these problems and was required to act. However, this is analogous to the arguments made in Case No. 5-CA-535 with respect to the Trade Agreement Act and they must be rejected in the same reasons. The mere fact ATF is faced with a real problem does not free it from meeting its obligation to provide NTEU with adequate notice and an opportunity to bargain with respect to the implementation of the detail program and its impact on the employees. ATF contends that it was privileged to act unilaterally in the instant case with no obligation to give notice because the matter was already provided for in Article 10 of the collective bargaining agreement. Article 10 merely defines details and describes the circumstances in which they may be utilized; it does not describe how such details are to be implemented (e.g. how employees are to be selected; how long details are to last, etc.) or how the adverse impact of such details on employees is to be minimized (e.g. the effect on employee career development of performing clerical and below grade tasks, etc). The implementation of the details and their impact on employees are matters about which NTEU is entitled to bargain unless NTEU has clearly and intentionally waived such rights. Cf. Department of the Army, U.S. Army Electronics Command, Fort Monmouth, New Jersey, FLRC No. 76A-101; Internal Revenue Service, National Office, A/SLMR No. 1079 (1978); and Internal Revenue Service, Fresno Service Center, A/SLMR No. 1119. In the instant case therefore ATF's waiver argument must be rejected because Article 10 of the collective bargaining agreement, although dealing with ATF's ability to utilize details and the circumstances when they may be utilized, does not mention or in any way waive NTEU's right to advance notice of such details or to bargain about the implementation and impact of such details. Accordingly, it is concluded that ATF's failure to provide NTEU with advance notice of the details of Firearm Inspectors to the Firearms Section and ATF's refusal to bargain concerning the impact and implementation of the details, after having been so requested by NTEU, violated Sections 7116(a)(5) and (1) of the Statute. 5-CA-537 The General Counsel urges that ATF violated Sections 7116(a)(5) and (1) of the Statute by unilaterally, and without notice instituting a system of reciprocal training assignments between inspectors assigned to the Lawrenceburg post-of-duty and the Cincinnati Office and by refusing to bargain about the impact and implementation of this change after being so requested by NTEU. The Lawrenceburg post-of-duty came under the control of the Cincinnati Area Office in mid 1979. The record establishes that since 1975 or 76 the Cincinnati Area Office operated some reciprocal training programs. Thus it is concluded that the operation and institution of the subject training program with respect to the Lawrenceburg post-of-duty was not a unilateral change. Rather, it would seem that the time the realignment of Lawrenceburg under the Cincinnati Area Office took place would have been the appropriate time for NTEU to negotiate and bargain with ATF concerning which Cincinnati Area Office training program would apply to Lawrenceburg and the other aspects of the implementation and impact of the realignment. /14/ However, once the Lawrenceburg post-of-duty was included within the jurisdiction of the Cincinnati Area Office, the working conditions and policies of the Cincinnati Area Office would automatically become applicable, including the practice of having reciprocal training. Hence, there was no unilateral change with respect to the institution of the training program in Lawrenceburg and thus no violation by ATF of Sections 7116(a)(5) and (1). Remedy It is concluded that a status quo ante remedy is not appropriate in the subject case because the details of Firearm Inspectors has ceased and the conversion from direct to general /15/ supervision of DSPS was made because it was required by law. Having found and concluded that ATF violated Sections 7116(a)(5) and (1) of the Act in Case Nos. 5-CA-535 and 536 with respect to the changes in DSPS supervision and detail of Firearm Inspectors to the Firearms Section, but that ATF did not violate Sections 7116(A)(5) and (1) of the Act in Case No. 5-CA-537 with respect to the utilization of a reciprocal training program in Lawrenceburg, it is recommended that the Federal Labor Relations Authority issue an Order dismissing those allegations of the Complaint concerning the reciprocal training program in the Lawrenceburg post-of-duty, Case No. 5-CA-537, and with respect to the remaining allegations of the Complaint, issue the following: ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that the Department of Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C. and its Central Region: 1. Cease and desist from: (a) Changing the method of supervision of distilled spirits plants and instituting details of Firearm Inspectors to Firearms Section to perform the duties of Firearms Examiners without first notifying National Treasury Employees Union and affording it the opportunity to consult and negotiate, to the extent consonant with law and regulations, concerning the impact and implementation of such changes. (b) Refusing to bargain with National Treasury Employees Union concerning the impact upon employees of the change of supervision to general supervision from direct supervision of distilled spirits plants in the Louisville Area and concerning the impact upon employees of the detailing of Firearm Inspectors in the Cincinnati Area to the Firearms Section to perform the duties of Firearm Examiners. (c) In any like or related manner, interfering with, restraining, or coercing its employees in the rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Notify the National Treasury Employees Union of any intention to change the method of supervision of distilled spirits plants or institute details of Firearm Inspectors to a Firearms Section to perform the duties of Firearm Examiners and, upon request, consult and negotiate with such representative, to the extent consonant with law and regulations, concerning the impact and implementation of such actions. (b) Bargain with the National Treasury Employees Union concerning the impact upon employees of the change of supervision to general supervision from direct supervision of distilled spirits plants in the Louisville Area and concerning the impact upon employees in the detailing of Firearm Inspectors in the Cincinnati Area to the Firearms Section to perform the duties of Firearm Examiners. (c) Post at its facilities 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 an appropriate official and they shall be posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. The Agency 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, what steps have been taken to comply herewith. SAMUEL A. CHAITOVITZ Administrative Law Judge Dated: June 4, 1981 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT change the method of supervisory distilled spirits plants or institute details of Firearm Inspectors to the Firearms Section to perform the duties of Firearm Examiners without first notifying National Treasury Employees Union and affording it the opportunity to consult and negotiate, to the extent consonant with law and regulations, concerning the impact and implementation of such changes. WE WILL NOT refuse to bargain with the National Treasury Employees Union concerning the impact upon employees of the change of supervision to general supervision from direct supervision of distilled spirits plants in the Louisville Area and concerning the impact upon employees of the detailing of Firearm Inspectors in the Cincinnati Area to the Firearms Section to perform the duties of the Firearm Examiners. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL notify National Treasury Employees Union of any intended change in the method of supervisory distilled spirits plants and institution of details of Firearm Inspectors to a Firearms Section to perform the duties of Firearm Examiners and upon request, consult and negotiate with such representative, to the extent consonant with law and regulations, concerning the impact and implementation of such actions. WE WILL bargain with National Treasury Employees Union concerning the impact upon employees of the change of supervision to general supervision from direct supervision of distilled spirits plants in the Louisville Area and concerning the impact upon employees of the change of supervision to general supervision from direct supervision of distilled spirits plants in the Louisville Area and concerning the impact upon employees of the detailing of Firearm Inspectors in the Cincinnati Area to the Firearms Section to perform the duties of Firearm Examiners. (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 question concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director of Region V, Federal Labor Relations Authority, whose address is: 175 West Jackson Boulevard, Suite A-1359, Chicago, Illinois 60606; Telephone No. (312) 886-3468. --------------- FOOTNOTES$ --------------- /1/ The transcript is corrected as follows: Page 5, line 24, from "1(a) through (f)" to "1(a) through (i)" Page 9, line 25, from October 24, 1970 to October 24, 1980 Page 14, line 17, from "bargaining units" to "bargaining unit" Page 54, line 8 from "change from" to "change for" Page 87, line 15, from "these experiences" to "these Inspectors" /2/ The Central Region Office is located in Cincinnati. /3/ Some DSPS were under the supervision of one inspector and others were under the supervision of more than one inspector. /4/ When more than one inspector were assigned to a DSP one or more inspectors would remain at the plant all day and, if not needed, one of the additional inspectors might have duty assignments elsewhere during the day. /5/ The Distilled Spirits Tax Revision Act of 1979 is Title VIII of the Trade Agreements Act of 1979; Pub. L. 96-39; 26 U.S.C. 5201, et seq. /6/ Prior to leaving the premises the inspector might perform some limited duties for a brief period of time. /7/ At least 5 one-man plants were converted to general supervision from direct supervision. /8/ Judicial notice was taken of this approval and the parties were given the opportunity to file briefs with respect to this matter. /9/ Article 10 Section 2 states: "The detailing of personnel to lower-graded position is considered to be inconsistent with sound planning and management and will be kept to an absolute minimum. However, the Employer may use details under circumstances such as the following: 1. When a temporary shortage of personnel exists; 2. Where an exceptional volume of work suddenly develops and seriously interrupts the work schedule; 3. To fill temporarily the positions of employees on extended leave with or without pay; or 4. Other conditions of a special and temporary nature." /10/ Union Steward Glen Hagar. /11/ Cf. Norfolk Naval Shipyard, 3 FLRA No. 15 (1980); Aircraft Fuel and Rescue Division, Air Operations Department, Naval Air Station, Norfolk, Virginia, 3 FLRA No. 18 (1980); Department of the Treasury, Internal Revenue Service, Jacksonville District, 3 FLRA No. 103 (1980); IRS, Washington, D.C., 4 FLRA No. 68 (1980); Department of the Navy, Portsmouth Naval Shipyard, 5 FLRA No. 48 (1981). /12/ See Cases cited in Footnote 11, supra. /13/ See cases cited in Footnote 11 herein and the Air Force Case, supra. /14/ Whether there was adequate notice at the time of realignment and opportunity to bargain is not before me in this matter. /15/ The basic collective bargaining relationship was between NTEU and ATF on a National level, with the Central Region of ATF acting as ATF's agent on the local level and NTEU Chapter 88 acting as NTEU's agent on the local level. Accordingly, it must be concluded that ATF is responsible for any breach of its bargaining obligations by its agent ATF Central Region.