16:0528(74)CA - Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, DC and its Central Region and NTEU and NTEU Chapter 88 -- 1984 FLRAdec CA
[ v16 p528 ]
16:0528(74)CA
The decision of the Authority follows:
16 FLRA No. 74 UNITED STATES DEPARTMENT OF THE TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS WASHINGTON, D.C., AND ITS CENTRAL REGION Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION CHAPTER 88 Charging Party Case No. 5-CA-592 DECISION AND ORDER The Administrative Law Judge issued the attached Decision finding that Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action. The Respondent filed exceptions with respect to the Judge's Decision and the Charging Party filed a response to Respondent's exceptions. 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 the Respondent violated section 7116(a)(1) and (5) of the Statute by (1) its failure to give the union adequate prior notice of its decision to change the scheduling of holiday work so as to afford the union the opportunity to request bargaining concerning the impact and implementation of the change; and (2) by its subsequent refusal, after implementation of its decision, to honor the union's request to bargain over the impact of the change. In so finding, the Authority notes that where an Agency in exercising a management right under section 7106 of the Statute decides to change a condition 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). /1/ 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) Instituting a change in the assignment of work on holidays without first notifying the exclusive bargaining representative, the National Treasury Employees Union and its Chapter 88, and affording it the opportunity to negotiate concerning the impact and implementation of such change. (b) Refusing to negotiate with the National Treasury Employees Union and its Chapter 88 concerning the impact and implementation of any change in the assignment of work on holidays. (c) Dealing directly with bargaining unit employees represented by the National Treasury Employees Union and its Chapter 88 with respect to personnel policies and practices or other matters affecting the working conditions of employees, particularly including the soliciting of suggestions concerning the procedures to be used in selecting employees for work on holidays. (d) 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 and its Chapter 88 of any decision to change the assignment of holiday work and, where requested, negotiate concerning the impact and implementation of such change. (b) 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 shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, 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 herewith. 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 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 a change in the assignment of work on holidays without first notifying the exclusive bargaining representative, the National Treasury Employees Union and its Chapter 88, and affording such representative the opportunity to negotiate concerning the impact and implementation of such change. WE WILL NOT refuse to bargain with the National Treasury Employees Union and its Chapter 88 concerning the impact and implementation of the change in the assignment of work on holidays. WE WILL NOT deal directly with bargaining unit employees represented by the National Treasury Employees Union and its Chapter 88 with respect to personnel policies and practices or other matters affecting the working conditions of employees, particularly including the soliciting of suggestions concerning the procedures to be used in selecting employees for work on holidays. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the rights assured by the Federal Service Labor-Management Relations Statute. WE WILL notify the National Treasury Employees Union and its Chapter 88 of any change in the assignment of holiday work and, where requested, negotiate, concerning the impact and implementation of 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 its provisions, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority, whose address is: 175 W. Jackson Blvd., Suite A-1359, Chicago, IL 60604; telephone No. (312) 886-3468. -------------------- ALJ$ DECISION FOLLOWS -------------------- UNITED STATES DEPARTMENT OF THE TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WASHINGTON, D.C., AND ITS CENTRAL REGION Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 88 Charging Party Case No. 5-CA-592 Imelda M. Koett Kirk, Esq. Toby Bishop, Esq. For the Respondent Michael Barkow, Esq. For the Charging Party Charles R. Prock, Esq. Arlander Keys, Esq. For the General Counsel Before: FRANCIS E. DOWD Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute (Statute), 92 Stat. 1191, 5 U.S.C. 7101, et seq. It was instituted by the Regional Director of Region 5 by the issuance of a complaint and notice of hearing on September 23, 1980 based upon a charge filed on June 26, 1980 by the Charging Party (also referred to herein as the Union). The complaint alleges that Respondent refused to bargain in violation of Section 7116(a)(5) and (1) by unilaterally changing a past practice concerning the scheduling of holiday work without providing the Union with adequate notice and/or an opportunity to bargain concerning the change. It is further alleged that Respondent also violated Section 7116(a)(5) and (1) when it bypassed the Union and bargained directly and individually with bargaining unit employees concerning a matter affecting working conditions. A hearing was held in Cincinnati, Ohio at which the parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine, and cross-examine witnesses and argue orally. Briefs filed by Respondent and the General Counsel have been duly considered. Upon consideration of the entire record in this case, including my evaluation of the testimony and evidence presented at the hearing, and from my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact 1. At all times material herein, Respondent has operated and supervised a facility in Cincinnati, Ohio known as the Bureau of Alcohol, Tobacco and Firearms Central Regional Office, hereinafter called the Activity, which Regional office has Area offices in Cincinnati, Ohio; Indianapolis, Indiana; Louisville, Kentucky; Cleveland, Ohio; Detroit, Michigan; and Frankfort, Kentucky. 2. At all times material herein, the National Treasury Employees Union has been the exclusive representative of all non-professional General Schedule and Wage Grade employees employed by the regional offices of the Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, with certain exclusions. 3. Since September 19, 1977, and at all times material herein, the Bureau of Alcohol, Tobacco and Firearms and the National Treasury Employees Union have been, and are now, parties to a collective bargaining agreement covering the employees in the unit referred to above. 4. At all times material herein, National Treasury Employees Union, Chapter 88, has been, and is now, an agent of National Treasury Employees Union. 5. Past Practice Prior to May 26, 1980 Inspectors employed by the Respondent are assigned to work at Distilled Spirits Plants owned and operated by private companies. Since these plants do not honor all Federal holidays, it is necessary three or four times each year to assign an inspector to work on a Federal holiday (like President's Day, Memorial Day and Columbus Day) at a particular plant. By law, Respondent had to have an inspector remain at the plant the entire time it was in operation. The inspector would report to work, remove the locks, perform other duties as required during the day, /2/ and secure the locks at closing time. If the plant were in operation for eight hours, the inspector was paid for eight hours work at the regular rate, in addition to the eight hours pay he was already being paid for the holiday. The method utilized by management to select inspectors for this assignment was for the supervisor to obtain volunteers from among the inspectors normally assigned to the particular plant in question. /3/ Since this informal method was apparently successful and caused no problems or resulted in grievances, a different or more formal method of selection was never an issue. 6. Public Law No. 96-39, effective January 1, 1980 made certain charges which in Respondent's opinion permitted it to make determinations, on a plant-by-plant basis, that holiday work no longer required the continued presence of an inspector during the entire time the plant was in operation. Respondent determined that it was only necessary to dispatch an inspector to the plant in the morning to unlock the facilities (and be paid for two hour's work) and to return at the end of the day to lock the facilities (and again be paid for two hour's work). This determination was not communicated to the Union. 7. On May 20, 1980 shortly before the Memorial Day holiday on May 26, Officer-in-Charge John Beauchamp, an agent of Respondent, came to the Government office at the Seagrams's plant to obtain volunteers for duty on Memorial Day. He first explained Respondent's new procedure for holiday work (as discussed above) so that any volunteer would know he would only receive pay for four hours, rather than eight hours, as in the past. Present at this discussion were employees Clay Ballinger, Tom Woods and Abrey Milstead. The latter two employees testified at the hearing and are hereby credited in all respects. The discussions initiated by Beauchamp lasted about fifteen minutes. Beauchamp raised the subject of their being a need for a fair system of selecting people for overtime work. Various suggestions were discussed including length of overall government service, length of service with this particular agency, and alphabetical or reverse alphabetical order. Beauchamp even suggested the possibility of drawing names out of a hat. According to Milstead, the discussion ended with Beauchamp asking the employees to discuss it among themselves and see if they could come up with an idea. 8. This meeting was promptly reported to Union President Martin J. Connell who, on or about May 20, called Beauchamp and challenged his actions. According to Connell, whom I credit, Beauchamp replied that (1) no change was being made, (2) employees were volunteering rather than being required to work, and (3) his conversations with employees were discussions, not negotiations. By letter dated May 21 to Respondent's Regional Personnel Officer, Robert H. Lumpkin, the Union made a request to bargain about the substance, impact and implementation of Respondent's decision to change its past practice with respect to working on Federal holidays. The Union also protested Respondent's failure to notify it of the change and Respondent's actions in bypassing the Union and dealing directly with individual employees. 9. On May 22, Beauchamp asked Milstead if he was still interested in working on Memorial Day and told him the old policy had changed, so he would only get paid for four hours. Milstead declined. Beauchamp said that he might have to use some system of selection for the coming holiday because he needed two employees, but only had one volunteer. Beauchamp "rehashed" the same systems of scheduling that he had brought up at the previous meeting. Ballinger and Woods were present and participated in the brief discussion lasting only five or ten minutes. According to Woods, it was on May 22 that Beauchamp said "How do you guys want to handle this? It's whatever you guys decide." I find that Beauchamp made this remark and in my opinion it is not significant whether it occurred on May 20 or May 22. The person who had already volunteered was Don Coleman. While there, Beauchamp telephoned employee Jimmie Redeford. When Redeford inquired about the hours he was told that "the Bureau had decided to count it as two emergency call backs instead of a regular eight hour tour." Redeford agreed to work. According to Redeford, whom I credit, he also had a conversation with either Camper or Beauchamp (both Officers-in-Charge) in which he was asked his opinion as to whether seniority or alphabetical basis was the more equitable way to assign overtime work. He replied that he didn't care for either method. 10. By letter of May 30 (Jt. Exh. No. 3) Respondent replied to the Union's bargaining request of May 21 and stated that the duties required on a holiday were properly determined by management and that the method of determining who receives an assignment to work on a holiday was governed by Article 23 of the contract, which concern "overtime" (Jt. Exh. No. 2). Although Respondent's letter characterized the holiday work as "overtime," it is clear from subsequent correspondence (Jt. Exh. Nos. 4 and 5) that Coleman and Redeford received holiday pay and not overtime. 11. By letter of June 24, the Union again requested to negotiate "concerning the scheduling of a split workday (especially on a holiday) . . . ." Respondent's reply dated July 1 characterized the Union's letter as a request "to negotiate a work schedule to cover periods when no work is required by law" (Jt. Exh. No. 8). The record does not establish, by testimony or documentary evidence, that Respondent ever replied affirmatively to the Union's request to bargain. Issues A. Whether Respondent had an obligation to bargain concerning his decision to change a work assignment. B. Whether Respondent had an obligation to bargain concerning the impact and implementation of its decision to change an existing practice with respect to work assignments on Federal holidays. C. Whether Respondent failed to provide the Union with notice of its decision. D. Whether Respondent bypassed the Union and violated 5 U.S.C. 7116(a)(1) and (5) by meeting with bargaining unit employees and discussing and soliciting suggestions for securing employees to perform the new work assignment on holidays. Discussion and Conclusions of Law A. Past Practice-- Holiday Work It is clear from the record that a past practice existed whereby employees were assigned to work and to perform specific duties at distilleries which were in operation on certain Federal holidays. This same past practice encompassed a requirement that assigned employees remain at the plant the entire time it was in operation, whether that be less than eight hours, more than eight hours, or exactly eight hours. The employee would be paid at a regular time rate for the number of hours on duty, in addition to his normal eight hours of pay for the holiday. Notwithstanding Respondent's contention that no change in past price occurred, I have no difficulty on this record in finding and concluding that on May 20, 1980, the Respondent changed its past practice, discussed above, and instituted a new practice whereby employees assigned to work on a Federal holiday were not required to stay on the premises of the distillery while it was in operation. The direct impact of this change or employees was that they were required to only spend a minimum amount of time at the plant and be paid only for four hours of work (two at the beginning of the day and two at the end of the day), even though the actual time required to perform their duties may have only added up to at most a total of two hours altogether. /4/ I also find that a past practice existed with respect to the procedures followed by Respondent in the selection and assignment of employees to actually work on Federal holidays. After making a determination that a particular distillery would be in operation on a Federal holiday, management representatives at the supervisory level would obtain volunteers from among the employees. Because employees were in effect receiving double-time pay for holiday work, there was no shortage of volunteers. The record in this case demonstrates that with respect to the Memorial Day holiday, Respondent utilized the same practice as in the past in selecting employees; that is, it sought volunteers. However, because the new schedule for holidays would result in lower pay, it was obvious that the practice of seeking volunteers might not be as successful as in the past and, therefore, a different procedure might become necessary. Accordingly, I find that Respondent did not change its procedures for selection of employees to work on Federal holidays. Later in this decision, I will discuss the alleged violation of Section 7116(a)(5) based upon the conversations with employees initiated by supervisors concerning any new selection procedures to be utilized in the future. B. Respondent's Obligation to Bargain about its Decision to Change a Work Assignment Section 7106(a)(2)(A)(B) gives management the right to assign and direct employees, and the right to assign work. In the lead case involving the Bureau of Public Debt, /5/ The Authority fully analyzed the rights of management to direct its employees and assign work under Section 7106(a) of the Statute and stated as follows: The right to direct employees in the agency is not defined in the Statute, is not specifically discussed in the legislative history and has not been applied in prior decisions of the Authority. Therefore, consistent with the main purpose and meaning of the Statute and in the absence of any indication that the phrase as used in the Statute has a meaning other than its ordinary meaning, /6/ the right "to direct . . . employees in the agency" means to supervise and guide them in the performance of their duties on the job. The right to assign work to employees or positions under section 7106(a), subject to the provisions of section 7106(b), is composed of two discretionary elements: (1) the particular duties and work to be assigned, and (2) the particular employees to whom or positions to which it will be assigned. /7/ Furthermore, management discretion in this regard includes the right to assign general continuing duties, /8/ to make specific periodic work assignments to employees, /9/ to determine when such assignments will occur /10/ and to determine when the work which has been assigned will be performed. /11/ In the present case, the Respondent's main defense is that it had no obligation to bargain with the Union about its "decision to assign employees to work on Memorial Day unlocking in the morning and locking in the afternoon" because Section 7106(a) reserves to agency management the right to assign employees in the agency and to assign work. As noted in the Bureau of Public Debt case, the right to assign work to employees is composed of two discretionary elements: (1) the particular duties and work to be assigned, and (2) the particular employees to whom it will be assigned. From the foregoing, it follows that an agency also has the right not to assign particular duties or, if you will, to make a change in the duties which have been assigned as a matter of practice over a period of years. That's what this case is really all about. I conclude that Respondent had a reserved management right, ab initio, to decide whether on Federal holidays certain duties had to be performed at plants and distilleries that remained in operation on those holidays. Respondent had a right to determine what duties had to be performed, to select the employees to perform those duties, and to determine the number of hours required to be spent at the plant or distillery by said employees. Similarly, I conclude Respondent had a right to change the duties assigned. Here, the duty of locking and unlocking has not been changed; that is still required. What has been changed is the requirement that an employee remain at the plant or distillery during the entire shift performing a few minor duties as assigned or simply sitting around reading newspapers in the absence of any assigned duties. Because of the passage of Public Law No. 96-39, the agency now has discretion to determine its true needs in terms of the degree of supervision required at these plants and distilleries. The agency exercised this discretion and concluded that the time to be spent by an employee at these plants on Federal holidays would be reduced to the minimum amount of time actually required to perform the unlocking and locking function. /12/ It is my conclusion that Respondent had no obligation to bargain about this decision and, therefore, did not violate Section 7116(a)(5) when it refused to bargain about its decision. /13/ The General Counsel argues that this is simply a case of bargaining about "work schedules" or a "method of scheduling work on holidays." I disagree. The term "work schedule" and the cases cited involve hours of work during which assigned work will be performed and the Authority has held that hours of work or work schedules are negotiable. But the present case involves an underlying determination, which only can be decided by management, as to whether particular work needs to be performed in the first instance. Thus, I view this as an "assignment of work" case, and not as "scheduling of hours" case. Indeed, in the present case no change was made in the reporting time in the morning or the quitting time at the end of the day, both of which times appear to be dictated by the distillery's hours of operations. Rather, what Respondent did was to decide that there was no work to be assigned in between the opening and securing of the locks, and no need to pay an employee for performing no work. /14/ The Federal Labor Relations Council, predecessor to the Authority, has held in a case arising under the Executive Order that an agency is not required to bargain on whether or not work on overtime (as well as on regular time) is needed, or on the nature of the work to be performed, or the tasks to be assigned. /15/ The Council's language is applicable herein since this case essentially involves a determination by management as to whether it needs an employee to be present at a distillery on a holiday and, if so, whether that employee should be assigned work to perform while he is there. Accordingly, for these additional reasons, I reject the General Counsel's position. C. Respondent's Obligation to Notify the Union and Negotiate Concerning the Impact and Implementation of its Decision to Change a Work Assignment Notwithstanding my finding and conclusion that Respondent had no obligation to negotiate its decision to change a work assignment, a different question is presented with respect to whether the Respondent nevertheless had an obligation to notify the Union of its decision and bargain upon request concerning the impact and implementation of the decision. My understanding of the case law is that an agency acts at its peril when it decides to institute a change in employees' conditions of employment without first providing the collective bargaining representative with adequate notice of the proposed change, so as to afford the Union with a reasonable opportunity to submit a request to bargain. /16/ The reason an agency acts at its peril is that its obligation to notify depends upon whether it has an obligation to negotiate, which in turn depends upon whether there is a reasonable likelihood that the change would result in a substantial impact on employees. In my view, the General Counsel has the burden of showing substantial impact in order to trigger an agency's obligation to negotiate Section 7106(b)(2) "procedures" and Section 7106(b)(3) "impact." /17/ Absent such showing, an agency has no obligation to negotiate changes which do not have a substantial impact on employees' conditions of employment. Applying the above rationale to the facts of this case, I find first of all that Respondent's change of work assignments had an immediate impact of reducing the holiday wages previously earned in the past and requiring employees to make two trips to employers' distillery on holidays. As a result, the desirability of working on holidays was substantially diminished because an employee would now earn approximately fifty percent less wages. Whereas in the past an employee might elect to forego an opportunity to spend a holiday with family and friends because of the monetary attraction to double pay, the change in job requirements removed this incentive. Indeed, the facts of this case demonstrate this clearly since one employee declined to volunteer when he learned of the change in assignment. /18/ Further, the Respondent's supervisor also foresaw that this change would decrease the number of volunteers and perhaps require a new method of selection as evidenced by the fact that he, in discussion directly with employees, brought up the subject of possibly having to adopt a new selection procedure in the future. I find and conclude the Respondent's change in work assignments had a substantial impact adversely affecting employees and that, accordingly, Respondent had an obligation to bargain about its impact and implementation as well as to provide the Union with adequate notice prior to the change. Not only did Respondent fail to fulfill these obligations but when the Union did request to bargain, orally and in writing, the request was refused. By the foregoing conduct, the Respondent violated Section 7116(a)(1) and (5). /19/ II. Respondent's Conduct in Dealing Directly with Employees It is clear from the credited testimony that Respondent's agents initiated discussions with employees concerning the possible need to formulate a new selection procedure for holiday work now that the changed work assignment resulted in less pay. Respondent's agents correctly anticipated that the new work assignment would present difficulties in obtaining holiday workers on a strictly voluntary basis, as in the past. But the case law is clear that when management is considering a change in the existing procedures for selection of employees, the proper party to consult is the exclusive bargaining representative. It is the Union's function to represent employees in dealings with management. For this reason it is unlawful for Respondent, through its supervisors, to deal directly with employees because by so doing Respondent bypasses the Union. The act of bypassing the Union demonstrates to employees that the Respondent feels free to ignore the Union and this of course diminishes and disparages the Union's true representational role as the employees' bargaining agent. Respondent's defense, which I reject, is that the subject conversations were merely caused, passing remarks, which were mere statements of fact or opinion. But this defense is based upon crediting Respondent's witnesses and discrediting the General Counsel's witnesses. As noted above, I have credited the General Counsel's witnesses in all respects. This might be a different case factually if all that were present were statements to the effect that "it looks like we're going to have a problem and maybe we'll need to formulate a new selection system"-- and no more than that. Here, however, there is evidence that Respondent actually mentioned some possible alternative selection procedures and asked the employees to think about them and see if they could come up with their own ideas. Even stronger evidence of bypassing is Beauchamp's statements "How do you guys want to handle this? It's whatever you decide." In my view, this direct dealing with employees and the solicitation of their views on conditions of employment constitutes a classic bypassing violation. Accordingly, I find that Respondent violated both Section 7116(a)(1) and Section 7116(a)(5) by the conduct described above. /20/ E. Respondent's Additional Defense At the hearing I rejected evidence concerning an alleged settlement which Respondent believes should preclude the Union from litigating this case and which it argues is a waiver of the right to negotiate "about any change . . . regarding implementation of the Trade Agreement Act . . . ." On September 24, 1980 the Union withdrew a charge in Case No. 3-CA-838 filed in a different Regional office than is involved herein. Subsequent thereto on October 1, 1980, the Union and Respondent entered into a Memorandum of Understanding in "full and complete settlement and satisfaction of any and all causes of action, damages, claims and demands related to implementation of the Act." The Memorandum did not specifically refer to Case No. 5-CA-592, the present case, which was pending in Region 5 and in which a Complaint and Notice of Hearing had already issued on September 23. The Authority's Rules and Regulations clearly require a Regional Director's participation in the withdrawal and settlement of a case. Withdrawal of a charge requires the Director's approval and only the Director can withdraw a complaint. Here, the Director was not a party to the settlement and has not withdrawn the complaint. Accordingly, I must reject Respondent's contention that this matter has been settled and is properly before me. /21/ F. Remedy Having concluded that Respondent had no obligation to bargain about its decision to change its holiday work assignment, I find that a status quo ante remedy is inappropriate. However, I shall recommend that Respondent negotiate, upon request, concerning the impact and implementation of its decision. 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) Instituting a change in the assignment of work on holidays without first notifying National Treasury Employees Union and its Chapter 88, and affording it the opportunity to meet and negotiate, to the extent consonant with law and regulations, concerning the impact and implementation of such change. (b) Refusing to bargain with National Treasury Employees Union and its Chapter 88 concerning the impact and implementation of any change in the assignment of work on holidays. (c) Dealing directly with bargaining unit employees represented by National Treasury Employees Union and its Chapter 88 with respect to personnel policies and practices or other matters affecting the working conditions of employees, particularly including the soliciting of suggestions concerning the procedures to be used in selecting employees for work on holidays. (d) 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 and its Chapter 88 of any change in the assignment of work on holidays and afford it the opportunity to meet and negotiate, to the extent consonant with law and regulations, concerning the impact and implementation of such change. (b) Bargain, upon request, with the National Treasury Employees Union and its Chapter 88, to the extent consonant with law and regulations, concerning the impact and implementation of any change in the assignment of work on holidays, including the procedures to be used in selecting employees for work on holidays. (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 therewith. FRANCIS E. DOWD Administrative Law Judge Dated: April 20, 1982 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 TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT institute a change in the assignment of work on holidays without notifying the exclusive bargaining representative, the National Treasury Employees Union and National Treasury Employees Union, Chapter 88, and affording such representative the opportunity to meet and negotiate to the extent consonant with the law and regulations, concerning the impact and implementation of such change. WE WILL notify the National Treasury Employees Union and National Treasury Employees Union, Chapter 88, of any change in the assignment of holiday work and, upon request, meet and negotiate concerning the impact and implementation of such change. WE WILL NOT deal directly with bargaining unit employees represented by the National Treasury Employees Union and National Treasury Employees Union, Chapter 88, with respect to personnel policies and practices or other matters affecting the working conditions of employees, particularly including the soliciting of suggestions concerning the procedures to be used in selecting employees for work and holidays. 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. (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, Region V, Federal Labor Relations Authority, whose address is: 175 W. Jackson Blvd., Suite A-1359, Chicago, IL 60604; telephone No. (312) 886-3468. --------------- FOOTNOTES$ --------------- /1/ Thus, the Authority rejects the Judge's discussion herein with regard to a "substantial" impact test and burden of proof pertaining thereto contained on page 10 of his Decision. /2/ Apparently, it was not always easy to find other duties to assign on a holiday, so it was not uncommon for the inspector to have no duties other than removing and securing the locks. /3/ The opportunity to earn an additional full day's pay was a sufficient inducement to obtain the requisite number of inspectors needed. /4/ Respondent's decision to pay for a total of four hours work is based upon 5 C.F.R. 550.131 which provides that "an employee who is assigned to duty on a holiday is entitled to pay for at least two hours of holiday work." Thus, if one employee opened the locks in the morning and a different employee was assigned to secure the locks at the end of the shift, each employee would be entitled to a minimum of two hours' pay. /5/ National Treasury Employee Union and Department of Treasury, Bureau of the Public Debt, 3 FLRA No. 119 (1980), 3 FLRA 768. /6/ See Webster's Third New International Dictionary (Unabridged 1976)). /7/ American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA No. 77 (1980), at 18 and 28 of the decision. /8/ 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) at 7-9 of decision. /9/ National Labor Relations Board Union, Local 19 and National Labor Relations Board, Region 19, 2 FLRA No. 98 (1980). /10/ Id. /11/ International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA No. 66 (1980) at 1-4 of decision. /12/ The obvious purpose of the change was to save money by reducing the hours worked. While this is a laudable objective to be sought by a government agency, the Authority (and its predecessor, the Federal Labor Relations Council) has concluded that cost is only one factor to be considered and weighed against other factors. American Federation of Government Employees, AFL-CIO, 2 FLRA No. 77, 2 FLRA 603 at 608. /13/ In negotiability cases, the Authority has found that union proposals which would restrict management's right to assign work are not within the duty to bargain. See International Association of Fire Fighters, Local F-48, AFL-CIO, 3 FLRA No. 76, 3 FLRA 488; National Federation of Federal Employees, Local 1624, 3 FLRA No. 30, 3 FLRA 141; American Federation of Government Employees, Local 1603, 3 FLRA No. 1, 3 FLRA 3; International Association of Firefighters, AFL-CIO, CLC, Local F-116, 7 FLRA No. 122. /14/ Since management has the right and the discretion to determine what work will be assigned and performed by its employees, I do not have to address the question of whether the work assigned was essential and necessary, or whether it was in the nature of "make work." Moreover, since the Union never had the opportunity to submit specific proposals, Respondent is merely engaging in speculation when it suggests (on page 8 of its brief) that the Union is in effect seeking the continuation of an alleged "featherbedding" situation which, in the private sector, would be a violation of Section 8(b)(6) of the Labor Management Relations Act, as amended. /15/ 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). /16/ See my discussion of this subject in U.S. Government Printing Office, 3-CA-549 (April 9, 1981), which is pending before the Authority. /17/ The existence of a substantial impact test seems clear and, with respect to Section 7106(b)(3), it would seem that substantial impact means adverse impact. While the Authority has not addressed this issue, it is my opinion that Section 7106(b)(2) also requires use of a substantial impact test. What is less clear, however, is whether the requirement of showing adverse impact is also applicable to Section 7106(b)(2). Because of my ultimate conclusions, I do not have to resolve this issue in this proceeding. /18/ When Milstead declined, the supervisor telephoned Redeford. Why did he choose to call Redeford? Was it his turn to be called, was he selected at random, or was it favoritism? Clearly the Union had a legitimate concern in the procedures to be followed by the agency in the exercise of their management right to select employees. /19/ United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA No. 70. /20/ Internal Revenue Service, Washington, D.C., 4 FLRA No. 68 (1980). See also Internal Revenue Service, Ogden Service Center, 7 A/SLMR 1032 (1977) where the Assistant Secretary stated that "the gravamen of the violation herein consists of the solicitation of views and recommendations from unit employees, selected by the Respondent, on matters for which the Complainant under the Order was entitled to be dealt with exclusively." See also VA, Veterans Administration, Veterans Administration Hospital, Muskogee, Oklahoma and American Federation of Government Employees, Local 2250 3 A/SLMR 491 (1973); Department of the Navy, Naval Air Station, Fallon, Nevada 4 A/SLMR 590 (1974). /21/ In so doing, I reach the same conclusion as Judge Chaitovitz in a case involving the same parties, decided June 4, 1981 (AOLJ-81-116), case Nos. 5-CA-535, 536, 537.