[ v16 p654 ]
16:0654(97)CA
The decision of the Authority follows:
16 FLRA No. 97
DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE, REGION I
(BOSTON, MASSACHUSETTS)
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case Nos. 1-CA-20060
1-CA-20063
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the consolidated complaint and
recommending that the consolidated complaint be dismissed. The General
Counsel filed exceptions limited to the Judge's Decision in Case No.
1-CA-20063, and the Respondent filed an opposition thereto.
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 dismissing the
allegations of the consolidated complaint in Case No. 1-CA-20060, noting
particularly the absence of exceptions, and the Judge's findings,
conclusions and Recommended Order dismissing the allegations of the
consolidated complaint in Case No. 1-CA-20063, based upon the particular
circumstances presented therein.
ORDER
IT IS ORDERED that the consolidated complaint in Case Nos. 1-CA-20060
and 1-CA-20063 be, and it hereby is, dismissed.
Issued, Washington, D.C., November 30, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE, REGION I
(BOSTON, MASSACHUSETTS)
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case Nos. 1-CA-20060
1-CA-20063
Christopher Doherty, Esq.
For the Respondent
William Milton,
For the Charging Party
James R. Collins, 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, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. 7101, et seq. It was instituted by the Regional Director of the
First Region of the Federal Labor Relations Authority by the issuance of
a Complaint and Notice of Hearing dated July 9, 1982, based upon an
unfair labor practice charged filed on December 2, 1981 in Case No.
1-CA-20060 and an unfair labor practice charge filed on December 3, 1981
in Case No. 1-CA-20063. An Order Consolidating Cases was also issued on
July 9, 1982. /1/ The foregoing charges were filed by National Treasury
Employees Union, herein referred to as NTEU, Union or Charging Party.
The Respondent in each case is the Department of Treasury, U.S. Customs
Service, Region I (Boston, Massachusetts).
In Case No. 1-CA-20060 (paragraph 8(a) of the Complaint), Respondent
is alleged to have violated Section 7116(a)(1) and (5) by the following
conduct:
(a) On or about September 13, 1981, and on October 11, 18 and
25, 1981 and other subsequent dates, Respondent unilaterally
changed existing conditions of employment by consolidating
waterfront overtime assignments without furnishing the Union with
notice and/or an opportunity to bargain concerning the impact and
implementation of said change. /2/
In Case No. 1-CA-20063 (paragraph 8(c) of the Complaint), Respondent
is alleged to have violated Section 7116(a)(1) and (5) by the following
conduct:
(c) On or about November 15, 1981, Respondent unilaterally
changed existing conditions of employment by consolidating
waterfront overtime assignments with airport overtime assignments
without furnishing the Union with notice and/or an opportunity to
bargain concerning the impact and implementation of said change.
Respondent denies committing any statutory violations and raises a
number of issues, including inter alia, whether there was a change in
conditions of employment, whether the alleged change had a substantial
impact, whether the Union failed to make a timely request to bargain,
and whether, in fact, Respondent refused to bargain after receipt of the
Union's "untimely" request.
A hearing was held in Boston, Massachusetts, at which time the
parties were represented by counsel and afforded full opportunity to
adduce evidence, to call, examine and cross-examine witnesses, and to
argue orally. Briefs filed by the General Counsel and Respondent have
been duly considered.
Upon consideration of the entire record in this case, /3/ 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 and Conclusions of Law
1. The National Treasury Employees Union is a labor organization
within the meaning of Section 7103(a)(4) of the Statute and, at all
times material herein, has been the exclusive bargaining representative
of employees in the following unit:
All non-professional employees assigned to the Office of
Regulations and Rulings and to the Headquarters Office, and to
Regions, I, II, III, IV, V, VI, VII, VIII and IX of the U.S.
Customs Service, excluding all professional employees; all
employees assigned to the Office of Investigations, the Office of
Internal Affairs, and the Office of the Chief Counsel; management
officials; employees engaged in Federal Personnel work in other
than a purely clerical capacity; confidential employees; guards;
and supervisors as defined in the Act.
2. The Respondent is an agency within the meaning of Section
7103(a)(3) of the Statute and, at all times material herein, the
following named persons occupied positions set opposite their respective
names, and have been and are now supervisors or agents of the Respondent
in Boston, Massachusetts.
Thomas Gleason, Director, Labor Relations and Safety Officer
Ralph Batchelder, Director, Inspection and Control Division
Donald Tilton, Supervisor, Inspection and Control Division
3. The Boston District, Region I, U.S. Customs Service consists of
the Port of Boston, Fall River, Springfield, Worcester, Gloucester and
Methuen, Massachusetts. This proceeding involves the Port of Boston
which covers Logan Airport, the Boston-area waterfront and trucking
terminals within the Boston area. For purposes of assignment of Customs
inspectors, the Port of Boston has two different divisions: the seaport
division and the airport division. The seaport division consists of
approximately 16 different work locations to which Customs inspectors
can be assigned to perform a variety of inspectional functions. The
seaport division consists of two subdivisions: the Moran terminal in
Charlestown and the Castle Island terminal in South Boston. Generally,
Moran covers vessels and trucking terminals north of downtown Boston and
Castle Island covers those south of downtown Boston. Moran and Castle
Island are approximately six miles apart. Nearly all of the vessels
handled at the seaport division are freight vessels rather than
passenger vessels.
Case No. 1-CA-20060: Alleged Consolidation of Overtime
Work in the Seaport Division
4. Approximately 50 Customs inspectors are assigned to the Port of
Boston. They rotate their positions within the Port of Boston every 2
weeks. Their regular duty hours are 8:00 a.m. to 5:00 p.m. for which
they receive an hourly wage. Overtime is paid for any hours worked
outside of these regular duty hours. Half of all overtime work occurs
on Sundays. If assigned to perform overtime work, a Customs inspector
is guaranteed to be paid for 8 hours of overtime (even if he or she
actually works only one hour) at a double time rate. Thus, an overtime
assignment results in 16 hours pay or approximately $160.
5. This overtime to which a Customs inspector is entitled is
referred to as "1911 overtime," referring to the Act of 1911 which
established it (see 19 U.S.C. 1451), and is payable both for overtime
worked during the week and that worked on Sundays and holidays. The
Government itself does not pay the 1911 overtime. Rather, it is paid by
the carrier which requests the services of the Customs inspector outside
of the normal hours of work. Therefore, this overtime is also commonly
referred to as "reimbursable overtime." Thus, if one inspector works for
only one carrier during his overtime tour, that carrier must then pay
the entire amount of overtime earned by the employee during that shift.
However, if that inspector, during a single overtime tour, works for two
different carriers, he would then earn the same amount of overtime but
the two carriers would split the overtime costs between them, resulting
in a 50 percent savings to each. In order to cut down these expenses
for carriers who request inspectional services outside of the normal
business hours, the Customs Service has established a strong policy of
prorating assignments among carriers whenever possible and, I find that
Respondent's practice has been consistent with such policy. The
foregoing is clear from my review of Respondent Exhibits 2 and 5 and the
testimony, which I credit, of Supervisory Customs Inspector Donald
Tilton the management official responsible for the assignment of
reimbursable overtime on the Boston seaport since February 1980.
6. In determining how to structure reimbursable overtime assignments
Tilton has always followed the policies established by the Customs
Service Headquarters of prorating (or consolidating) these assignments
whenever possible. Prior to establishing the overtime assignments at
the seaport, Tilton reviews the requests for such services that had been
received by his office from the various carriers and shipping agents.
He considers the estimated time of arrival of the vessel for which
services have been requested, the nature of the work expected to be
performed on the vessel, the carrier's estimate of the length of time
that work should take and the location of the vessel. If all these
considerations result in a determination by Tilton that one inspector
could cover more than one vessel in the course of an 8 hour tour, he
consolidates two or more seaport assignments and assigns them to one
inspector. These same factors are considered by Tilton when structuring
reimbursable overtime assignments for weeknights as well as Sundays and
holidays. However, in determining whether to consolidate assignments,
Tilton would not assign one inspector to cover two vessels if there were
any possibility that the first assignment would result in the inspector
not arriving at the second assignment on time. Although the carriers in
fact save money by having overtime assignments consolidated, they incur
significantly greater costs if the unloading of the vessel is delayed
awaiting the arrival of the inspector who may have been delayed by a
prior assignment. Thus, to accommodate this economic reality, Tilton
will consolidate assignments only if it is almost certain to not cause
any delay. Even then there are times when he has consolidated
assignments which later had to be divided between two inspectors because
the first vessel was later than expected or the first assignments ran
longer than expected. Tilton's practice has always been (since February
1980, when he became responsible for these assignments) to consolidate
assignments when all of the above-referenced factors would permit him to
do so. However, the opportunities for such consolidations are few and
without any pattern. /4/
7. The General Counsel conceded that the Respondent did consolidate
waterfront overtime assignments prior to September 13, 1981, but argued
that these instances were only when the same vessel was at two different
locations in the course of the tour of duty or when two different
vessels were at the same location. /5/ I find that this has never been
the policy of the Boston District regarding consolidated assignments and
that Tilton has always attempted to consolidate seaport assignments when
time, location, and other circumstances permit. This included
assignments involving two different vessels at two different locations.
In fact, prior to September 13, 1981 (the earliest date charged by the
General Counsel in its Complaint), the Agency had consolidated
assignments which involved two different vessels at two different
locations: On April 23, 1981, Inspector Bell performed overtime
services for the Australian Envoy located at the Moran Pier, and for the
Gulf Trader, located at the American Sugar House, two different
locations. On May 18, 1981, Customs Inspector McGrath performed
overtime services for the vessels Berglind and Godafoss, located at the
Cold Water Fish Dock in Everett, and for the vessel American Archer,
located at the Moran Piers in Charleston, two different locations. On
September 1, 1981, Inspector O'Hara performed overtime services for the
vessel Godafoss, located at the Cold Water Fish Pier in Everett, and for
the vessel Broland, located at Exxon Oil in Everett, again two different
locations. Each of these assignments were consolidated and their costs
prorated among the carriers involved, in a manner in which the General
Counsel contends did not occur until after September 13, 1981.
8. Tilton established the schedule for overtime assignments by 4:00
p.m. on weeknights and by 5:00 p.m. on Saturdays, for Sunday
assignments. It was at this point that Tilton determined whether the
assignments could be consolidated by assigning one man to two requests
for services. At these times the inspectors who were scheduled to work
were notified by phone and told to which vessels they were assigned and
what time the vessels were scheduled to arrive.
a. After the schedule had been established by Tilton and the
individual inspectors notified of their assignments, several
circumstances could change which would alter the time and duration of
the assignments from how they were originally assigned. The arrival
time of the vessel could change or the estimate of how long the
assignment would take could be either too long or too short (e.g., there
are circumstances in which a ship, intending to unload cargo, is unable
to do so due to weather conditions). In addition there are occasions
when the Customs Service receives requests for services from shipping
agents after the schedule has already been established (e.g., after 5:00
p.m. on Saturday for service on Sunday). Such circumstances require
adjustments in the overtime schedule after it has been established and
the inspectors notified.
b. In order to avoid administrative complications and the "mass
confusion" of attempting to re-contact all the inspectors involved, the
Customs Service does not make major revisions in its schedule to
accommodate these "post-scheduled" changes. The Agency's practice has
always been not to attempt to consolidate assignments after the schedule
has been established even if these "post-scheduled" changes would have
permitted it to do so. Rather, the supervisor simply contacts the
individual inspectors affected by the change, or calls in the next
inspector on the overtime list.
c. The necessity to alter the schedule after it has been established
and the inspectors notified is the rule rather than the exception, but I
am only referring to the initial assignment. The arrival time of
vessels are changed after the establishment of the overtime schedule
approximately 50 percent of the time. /6/ The estimates of the amount
of time an assignment will take are inaccurate approximately 90 percent
of the time.
d. Customs Form 6081, Register of Reimbursement Assignments, the
document used extensively by the General Counsel in its attempt to
establish a past practice, records only the hours of reimbursable
overtime actually worked by the Customs inspectors in the Boston
seaport. These records do not indicate where any vessel was located
during any given assignment. These records also do not show how the
assignments on any given day were originally scheduled by Tilton; they
do not indicate what assignments had been changed due to the late
arrival of a vessel; nor do they show when the assignment was requested
by the carrier after the schedule had been established. As a result,
the records relied upon by the General Counsel, to establish a past
practice different from that asserted by Respondent, are of limited
value and not very persuasive to the undersigned. It is for this reason
that the more significant evidence is the testimony of witnesses.
Case No. 1-CA-20063: Alleged Consolidation of Overtime
Work Between the Seaport Division and the Airport
Division
9. In October 1981, David Emmons, Labor Relations Specialist, United
States Customs Service, had a discussion with John Linde, District
Director of Customs, Boston District regarding the consolidation of
Sunday overtime assignments between the Boston seaport and Logan
Airport. Linde explained to Emmons at that time that he was concerned
that inspectors who were working Sunday overtime assignments at the
Boston seaport were going home at the completion of their seaport
assignments even when there might be a need for the inspectors at Logan
Airport. Linde explained to Emmons at that time that he was concerned
that inspectors who were working Sunday overtime assignments at the
Boston seaport were going home at the completion of their seaport
assignments even when there might be a need for the inspectors at Logan
Airport during the remaining hours of the inspectors' tours. Linde felt
that this practice was contrary to the Customs Service policy as
established by a Customs Service Headquarters Manual Supplement dated
June 12, 1979 (Resp. Exh. No. 5). A pertinent paragraph in that
Supplement is as follows:
(5) Inspectors, or other employees assigned to inspectional
overtime on Sundays or holidays, will hold themselves available
for the full eight hours (or nine, when a one hour meal break is
applicable) of the assigned tour, and shall be "available" in the
sense of being readily reached and in a location and state of
readiness enabling themselves to report for duty upon short
notice. The time allowed for travel in reporting back to duty
will be determined by local and district management
The foregoing regulation does not impose any requirement for an
inspector, upon completion of his or her assignment, to notify anyone;
it only requires them to be available in the sense of being readily
reached, and clearly did not preclude them from going home.
a. To rectify this situation Mr. Linde has decided to institute a
policy which would require inspectors, upon completion of their Sunday
seaport assignments, to call the Supervisory Inspector at Logan Airport
to see if there was a need for the inspector's services at the Airport.
Prior to instituting this policy of calling the Airport Supervisor,
District Director Linde was notifying Emmons so that appropriate steps
could be taken to properly notify the Union about the intended change in
practice. Subsequent to his conversation, Linde formally requested the
Customs Labor Relations Office to notify the Union of the change in
practice (Resp. Exh. No. 6). Emmons drafted the following letter to
Richard Stevens, Secretary-Treasurer of Chapter 133 of NTEU.
This is to notify you of our intention to require, in
accordance with the provisions of Manual Supplement 2132-05 of
June 12, 1979, that employees assigned to inspectional overtime on
Sundays or holidays will hold themselves available for the full
eight hours.
Accordingly, when an inspector completes an overtime assignment
prior to the end of the 8 hour time-frame in the Port of Boston on
a Sunday or holiday, he is still liable for additional
assignments, either at the Seaport or Airport. Therefore, upon
completion of an assignment within the port, each inspector will
call the Airport Supervisor to indicate his availability.
The above will be effective on Sunday, November 15, 1981.
b. As noted previously (para. 8.b. supra), the Agency's practice has
always been not to attempt to consolidate assignments after the schedule
has been established even if these "post-scheduled" changes would have
permitted it to do so (see Resp. brief at p. 7). Therefore,
notwithstanding the regulations requiring inspectors to be "available"
for additional assignments, the practice generally was not to make such
assignments and Linde correctly concluded inspectors were going home.
Therefore, Respondent's November 3 notice essentially is intended to
change a past practice whereby inspectors performing overtime work in
the seaport division could go home upon completion of their assignment
to a new practice whereby they were more vulnerable to an additional
assignment during their tour of duty, either in the seaport division or
at the airport. The new requirement of calling the airport supervisor
was merely the procedure whereby the individual inspector's availability
(or vulnerability) became known to the supervisor. The purpose of the
change was to save money for the carriers by utilizing inspectors who
already were in an overtime status and would continue to be paid whether
or not they performed any additional duties.
10. This letter Jt. Exh. No. 3, was sent to Stevens on November 3,
1981. Under normal circumstances the notice would have been sent to
Stephen Emmanuel, the NTEU local chapter President, but Emmons was aware
that Emmanuel, who had recently suffered a heart attack, was
incapacitated. There is conflicting testimony as to the date this
letter was received by the Union. Stevens said he received it around
November 7; William Milton, the NTEU National Field Representative,
testified that Stevens called him on November 6, and indicated that he
had just received the letter that day. However, in both the Charge
dated November 30, 1981, filed with the Federal Labor Relations
Authority in connection with this action (GC Exh. No. 1(e)) and in a
letter to the Federal Mediation and Conciliation Service dated December
4, 1981 (Jt. Exh. No. 7), Milton stated that the Union had received
notice of this proposed change on November 5, 1981. Since this earlier
correspondence was closer in proximity to the event in question, and not
being persuaded by the testimony of either Stevens or Milton, I find
that a responsible Union official received notice of the intended change
on November 5, 1981.
11. Article 37 of the parties' collective bargaining agreement
states in pertinent part, as follows:
Section 4. If the union wishes to negotiate concerning the
implementation or impact on employees of the proposed change(s),
the union will submit written proposals to the employer within a
reasonable period after notification of the proposed change(s).
The Union agrees that any proposals submitted in the context of
impact bargaining will be related to the proposed change(s) and
will not deal with extraneous matters. Negotiations will normally
begin within seven (7) calendar days after receipt by the employer
of the union's proposals.
Section 5.A. Reasonable extensions of time under this article
will be made for good cause shown such as delays in receipt of
necessary and relevant information as defined in Section 8(4),
provided that the total time involved does not cause an
unreasonable delay or impede the employer in the exercise of its
management rights.
12. The record does not indicate that Stevens, Milton, or any other
Union official attempted to personally contact or telephone any
Respondent representative to request bargaining about the change, to
request additional information, or to protest the change. In
particular, the Union did not promptly communicate with Respondent and
request additional time to prepare its bargaining proposals, to postpone
the effective date of the changes, or to at least protest that the time
interval between November 5 and November 15 was inadequate to prepare
bargaining proposals and/or complete bargaining on the change before the
November 15 effective date.
13. One week later on Thursday, November 12, a letter containing 14
bargaining proposals prepared by Milton was received at the Post Office
in Washington, D.C. at 5:00 p.m. as indicated by the Express Mail
receipt. The following morning, it was received in Boston between 10:30
a.m. and 11:00 a.m. by David Emmons, the management official responsible
for negotiations regarding the proposed changes. Of course, since this
was Friday, November 13 it was the last workday before the effective
date of the change on Sunday, November 15. /7/ Absent a change of mind
by Respondent, it was also the last day upon which to notify its
employees of the change to become effective Sunday, November 15.
14. Respondent did not respond on that date to the Union's
bargaining request and obviously chose to treat it as untimely, as
argued herein. Accordingly, on the same day that Respondent received
the Union's bargaining request, Respondent officially notified the
Boston inspectors of the new procedure to call the Airport Supervisor
after completion of their seaport assignments to indicate their
availability.
15. Thereafter, on November 20, 1981, Emmons had a conversation with
Milton regarding several matters pertaining to labor relations including
the seaport/airport overtime issue in the Port of Boston. During this
conversation (which initially involved other matters), Emmons expressed
his willingness to negotiate the proposals submitted by Milton (TR
238-239, Resp. Exh. No. 7) but refused to return to the status quo.
However, Milton never took Emmons up on this offer and never entered
into negotiations with Emmons on this issue. /8/
16. The Union's bargaining proposals are set forth in Joint Exhibit
No. 5 and will be referred to later.
Discussion and Conclusions of Law
Case No. 1-CA-20060
It is well established that an agency, prior to exercising a reserved
management right, must provide the union with adequate notice of its
decision so that the union will have a meaningful opportunity to bargain
about the impact and implementation of the decision. /9/ In order for
the above principle to apply, it must be shown that the agency has an
obligation to bargain in the first instance. As applied to this case,
it is incumbent upon the General Counsel to establish by a preponderance
of the evidence that the agency in fact changed a condition of
employment established by past practice. If the activity complained of
is simply a continuation of an ongoing practice then there is no
obligation to notify the union or negotiate in connection therewith.
/10/
In its brief, Respondent summarizes the pertinent evidence on this
issue and persuasively argues that its past practice always has been to
consolidate seaport overtime assignments whenever possible and, based
upon Tilton's credible testimony, I agree. Further, Respondent argues
that the General Counsel has failed to establish the existence of a
different past practice, namely, that overtime assignments were only
consolidated where either the same vessel or same location was involved.
In the interest of brevity, I shall incorporate by reference
Respondent's entire argument on this issue as set forth in its brief at
page 12 through 22, inclusive. Respondent points out, inter alia, the
following: (1) The testimony of Stevens and Pacewicz cannot be relied
upon; (2) Customs Form 6001 are unreliable since they do not show
location of vessels, do not show whether the actual arrival time of
vessels was the same as originally anticipated at the date of
assignment, do not show whether the actual hours worked is the same as
originally anticipated; and do not show last-minute requests by
shipping agents for services of inspectors after overtime assignments
have already been made; and (3) the Respondent's evidence that 3
weeknight overtime assignments involving at least two vessels at two
different locations were consolidated, in a manner which the General
Counsel alleged did not exist prior to September 13, 1981.
Accordingly, I conclude that the credible evidence establishes that
the Respondent did not change its method of assigning reimbursable
overtime on or after September 13, 1981 as alleged in the Complaint.
Therefore, I recommend that Case No. 1-CA-20060 be dismissed.
Case No. 1-CA-20063
The Respondent, raises a number of issues which will be discussed
seriatim.
A. Change in Past Practice
As previously found (supra, para. 9.b), the past practice was for
inspectors to complete their seaport overtime assignments and then
return home, unless already having been given a second assignment.
Respondent offered no evidence to show that it ever implemented its own
regulations and telephoned inspectors at their home and actually gave
additional assignments to inspectors who were technically "available."
As a practical matter, when a customs inspector completed his or her
overtime assignment he or she was through for the day. It is for this
reason that the Respondent's agent, Linde, realistically concluded that
the most practical way to identify possible recipients of an additional
assignment was to require inspectors to call the Airport Supervisor
before they went home. Thus, the November 3 notice was, in fact, a
notification concerning a real change in working conditions, rather than
a reaffirmation of existing policy and practice. The new procedure
required inspectors to do something which previously was not required of
them. Therefore, I reject Respondent's contention that there was no
change in conditions of employment.
B. Impact of the Change
Under the existing regulations, inspectors had to be "reachable" for
an additional overtime assignment and therefore it may be argued that
they always were vulnerable to performing more work and depriving
another inspector of the opportunity to receive an overtime assignment.
In practice, however, the existing regulation was not enforced and when
an inspector completed his original assignment, he was through for the
day. Thus, the new procedure was an effort to revive and strengthen the
regulation requiring inspectors to be "reachable."
Respondent attempts to minimize the new procedure by saying it merely
required a telephone call. Respondent knows full well the purpose of
the telephone call was to make the inspector vulnerable to an additional
assignment during his or her tour of duty. The whole purpose of this
new procedure was to save money for the carriers. From this it follows
that inspectors would ultimately receive less money. However salutory
the purpose of Respondent's change in existing practice may be for the
carriers, the effect for inspectors was likely to be more work and less
money. As a result of this change, and as correctly pointed out by
Pacewicz, overtime work itself lost some of its attractiveness, at least
for those inspectors who might wish to pass up an opportunity to earn 16
hours' pay for a tour of duty normally less than a full 8 hours' work.
Because the Respondent's change had the foreseeable impact of more work
and less money, I find the change was substantial and that Respondent
had an obligation to provide the Union with adequate notice of the
proposed change. /11/
C. Adequacy of Respondent's Notice
The Authority's law in this area is being made on a case-to-case
basis and whether or not an agency's notice is reasonable and adequate
seems to depend upon the facts of each case. The Authority had held
that as few as 4 days is adequate in which to request bargaining and to
have "an opportunity to bargain concerning the impact and implementation
of the decision prior to its effectuation." /12/ Thus, in Fort Sam
Houston, the Authority found that the Union was notified on Thursday,
July 26, 1979 that the work performed by bus drivers had been contracted
out, and that a meeting was scheduled for Monday, July 30 to present RIF
notices to the 12 employees affected. The Union did not attend the
meeting and did not request bargaining until a few days after the
meeting. The Authority held that the Union was given adequate notice of
the decision to conduct a RIF and an opportunity to bargain concerning
impact and implementation prior to its effectuation.
By way of comparison, the Authority held in another case, /13/ that
notice from Tuesday, November 25 to Monday, December 1 (including a
holiday and a weekend) was inadequate notice, especially noting the
Union's prompt request for bargaining on November 26 and the agency's
decision to postpone implementation of its decision for only 2 days
where no overriding exigency existed which required such hasty
implementation. One critical difference between these cases is that in
Bureau of Government Financial Operations Headquarters, the Union did
submit a bargaining request as soon as it reasonably could and the
failure to have time to complete bargaining was solely because the
agency had no overriding exigency for refusing to delay the date of
implementation. However, in Fort Sam Houston, the Union failed to
submit a bargaining request prior to the effective date and failed to
attend the meeting when the bus drivers were given their RIF notices.
The Authority apparently concluded that the short time provided by the
agency was justified in the particular circumstances of that case.
Here, the November 3 notice was received by a responsible Union
official on Thursday, November 5, announcing an effective date of
Sunday, November 15. Contrary to Respondent's contention, I would not
count November 3 and 4 because the Union had not yet received the
notice. I also would not count November 15, the effective date of the
change. This leaves a time frame of 10 days (November 5-14, inclusive)
in which the Union had an opportunity to request bargaining and submit
proposals. The issue to be resolved is whether this time frame was
reasonable in the circumstances of this case.
In my opinion, both Respondent and the Union have conducted
themselves in a manner resulting in the creation of legal issues for the
Authority to decide. It is not the function of the Authority to
encourage parties to litigate matters best resolved by good faith
collective bargaining. The facts of this case show that Respondent's
agent, Emmons knew on October 19 that notice to the Union was required
but he delayed until November 3, to issue the notice to the Union.
Thus, the General Counsel correctly points out that Respondent "could
have" issued its notice earlier and thus established a longer time
frame. Nevertheless, the issue remain whether the time frame eventually
established was reasonable and adequate, considering the facts of this
case.
Since the Authority was willing to conclude that 4 days' notice in
Fort Sam Houston was adequate, I am constrained to conclude that the 10
days' notice here is also adequate. This is especially so when one
observes that the change in Fort Sam Houston was of a more serious
nature, i.e. a Reduction-in-Force of several employees, in contrast to
the new procedure here requiring inspectors to place a phone call to the
Airport supervisor. If the Union here wanted to bargain about this
change as quickly as possible, all it had to do was make a phone call on
the day Stevens received notice on Thursday, or on Friday when Stevens
informed Milton, or even as late as Monday when Milton received the copy
of the written notice, (I reject the Union's argument that Milton could
take no action until he actually read the short, simple and
uncomplicated notice.) Had Milton called Respondent's representative he
could have discussed whether there was time to bargain prior to the
effective date of the change or whether the change could be temporarily
postponed.
Instead, Milton waited until the last minute in submitting his
proposals, and as a result Respondent received them on Friday, November
13, only two days before the effective date. It is clear from Milton's
own testimony that he had no reasonable expectation of bargaining prior
to the effective date. It is suggested by the Respondent that Milton
was intentionally (i.e. in bad faith) delaying submission of his request
hoping that it would cause Respondent to postpone the effective date of
the new procedure. Just as the Respondent "could have" provided its
notice earlier, the Union also "could have" replied sooner. Thus, this
is not like the Bureau, case, supra, where the Union had no choice but
to make a last-minute request. Here, by not requesting bargaining as
promptly as possible the Union lulled the agency into believing the
Union had accepted the new procedure and elected not to bargain. Here,
by waiting until the very last working day before the effective date of
the new procedure, the Union gave the impression, correctly or
uncorrectly, that its real desire was not to bargain but, rather, to
delay implementation of the change.
Apparently recognizing that the Union could have made a bargaining
request earlier than it did, the General Counsel contends in its brief
that under the collective bargaining statement, a request to bargain in
itself does not obligate the agency to bargain. I disagree. The
contract contains no clear and unmistakable waiver of the Union's right
to request bargaining, independent from its submission of written
proposals. Indeed, the contract even provides for obtaining reasonable
extensions of time. Accordingly, I find this to be an unacceptable
explanation for the Union's failure to more promptly request bargaining.
Assuming, arguendo, that it was necessary for the Union to first submit
written proposals in order to "perfect" its bargaining request, and
agreeing with the General Counsel that the time frame should allow time
to prepare such proposals, I would nevertheless conclude that the Union
here had sufficient time to comply with the contract requirements, given
the nature of the proposed change and the 10 days provided by
Respondent. As pointed out by Respondent, there was no need here for
extensive analysis of the change prior to formulating its proposals for
negotiations. Some of the proposals were not even relevant to the
change, as required by Article 37, Section 4 of the contract. I reject
any contention that the Union required a substantial amount of time to
prepare proposals. Thus, while at first glance the Union's request and
list of proposals may appear to evidence a complex, many-faceted issue,
a closer analysis of the Union's proposals demonstrates that the Union
was simply offering a "boiler plate" response to the Respondent's
intended change, in many instances proposing to negotiate the very
language that the parties had already agreed to in their National
Contract. Moreover, some proposals were unrelated to the issue, as
pointed out in Respondent's brief (pages 26-28).
Where an agency has notified the union of a forthcoming change, it is
incumbent upon the union to avail itself of this opportunity and either
request bargaining or request more time to consider the change. /14/
Where the union fails to request bargaining until after the change is
implemented its request is untimely and there is no unlawful refusal to
bargain. /15/ Where the union's request to bargain is submitted prior
to the change, but at the 11th hour, it has also been held to be
untimely, /16/ and it is this case law which governs this proceeding.
Having concluded that Respondent gave adequate notice to the Union,
and that the Union's bargaining request was untimely, I find that
Respondent's implementation of the new procedure on November 15 was not
unlawful, and Respondent did not thereby violate Section 7116(a)(5) and
(1). Accordingly, I recommend dismissal of Case No. 1-CA-20063. /17/
The General Counsel also contends that there was "no exigent reason
why Management had to push ahead with implementation immediately . . .
." The General Counsel asserts that Respondent had the burden of
presenting evidence to establish why it "could not endure a few more
weeks of a practice it had condoned for 2 years, until impact bargaining
was completed." I reject this argument and conclude that Respondent's
"burden" does not arise until after the Union submits a timely
bargaining request, and then only if the bargaining cannot be completed
prior to the implementation date. In such event the agency has to
either change the date or justify its refusal to do so. Since it is the
agency itself which initially established the time frame from November 5
to November 15, I believe it is not unreasonably to impose upon the
agency the burden of insuring that bargaining can be completed prior to
the proposed date of implementation and, if not, it surely must justify
whether an overriding exigency prevents it from delaying implementation.
/18/ Here, however, the Respondent was free to proceed with
implementation because it had already satisfied its obligation to
provide the Union with reasonable and adequate notice of its change in
conditions of employment.
ORDER
It is hereby ordered that the Complaint in Case Nos. 1-CA-20060 and
1-CA-20063 be, and it hereby is, dismissed.
FRANCIS E. DOWD
Administrative Law Judge
Dated: June 14, 1983
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ At the hearing, the General Counsel moved to sever Case No.
1-CA-20059 from this proceeding based upon a prehearing settlement.
Respondent did not object and the motion was granted. As a result,
paragraph 8(b) of the Complaint was deleted.
/2/ The charge dated November 12, 1981 only mentioned the date of
October 25, 1981; the Complaint cited three additional dates. I
disagree with the Respondent's contention that the Complaint raises
issues not previously raised by the charge. The issues are the same.
Moreover, a charge is not a pleading; it merely serves to initiate an
investigation. Like the National Labor Relations Board, the Authority
has considerable leeway to found a Complaint on events other than those
specifically set forth in the charge, the only limitation being that it
may not get "so completely outside . . . the charge that it may be said
to be initiating the proceeding on its own motion." Texas Industries,
Inc., 336 F.2d 128 (CA-5); Fant Milling Co, 360 U.S. 301: Kohler Co.,
220 F.2d 3, 7 (CA-7). Accordingly, I reaffirm my ruling denying
Respondent's motion for partial dismissal of the Complaint.
/3/ The following correction of the transcript is hereby made. TR
50, line 12 "an hour long" is changed to "by an R. Long."
/4/ See Joint Exhibit No. 8 and comments thereon by Respondent in its
brief at pages 4 and 5.
/5/ As a practical matter these instances of consolidation are the
best examples of when it is easiest to order consolidations but it does
not necessarily follow that these are the only occasions when Respondent
has required consolidation or that it has limited itself to only these
situations.
/6/ Customs Inspector Pacewicz, the General Counsel's own witness,
testified that individual assignments were changed at the last minute
due to changes in vessel arrival times "all the time." It happens so
often in fact that Inspector Pacewicz takes it upon himself to call the
tugboat to verify the arrival time of the vessels before he leaves for
an assignment.
/7/ Milton's incredible explanation for the delay in responding to
Respondent is accurately set forth in Respondent's brief at pages 9 and
10 and the record speaks for itself. Suffice to say, Milton
demonstrated that he had no sense of urgency about submitting his
bargaining request and, as he noted at TR 132, was content to have
Respondent receive his proposals by "close of business" Friday, November
13. But Milton also testified (at TR 250-251) that he could not recall
any occasion when negotiations had commenced the same day or within one
day of management's receipt of proposals. Therefore, I conclude that
Milton had no expectations that bargaining could be completed before the
effective date of the change.
/8/ These findings are based upon the persuasive testimony of Emmons
whom I found to be an honest and credible witness. I do not accept
Milton's unconvincing testimony to the contrary.
/9/ Federal Railroad Administration, 4 A/SLMR 497, A/SLMR No. 418;
Jacksonville District, Internal Revenue Service, Jacksonville, Florida,
7 A/SLMR 758, A/SLMR No. 893; Bureau of Government Financial Operations
Headquarters, 11 FLRA No. 68, 11 FLRA 334, Scott Air Force Base, 5 FLRA
No. 2.
/10/ Internal Revenue Service, Cleveland, Ohio, 6 FLRA No. 40, 6 FLRA
240; Social Security Administration, Mid-America Service Center, Kansas
City, Missouri, 9 FLRA No. 33, 9 FLRA 229.
/11/ I reject Respondent's contention that actual impact is
necessary. It is only necessary for the General Counsel to show that
substantial impact was reasonably foreseeable. Department of Health and
Human Services, Social Security Administration, Field Assessment Office,
Atlanta, Georgia, 11 FLRA No. 78; Internal Revenue Service and
Brookhaven Service Center, 12 FLRA No. 7. For an extensive discussion
of the "reasonable likelihood" or "reasonably foreseeable" test see the
Administrative Law Judge's decision in U.S. Government Printing Office
and Joint Council of Unions, GPO, Case No. 3-CA-549, OALJ-81-083 (April
9, 1981), pending before the Authority.
/12/ United States Department of Defense, Department of the Army,
Headquarters, Fort Sam Houston, Texas, 8 FLRA No. 112 (1982), 8 FLRA
623.
/13/ Bureau of Government Financial Operations Headquarters, 11 FLRA
No. 68 (1983), 11 FLRA 334.
/14/ Department of the Navy, Portsmouth Naval Shipyard, A/SLMR No.
508, 5 A/SLMR 247; Department of Transportation, Transportation Systems
Center, Cambridge, Massachusetts, A/SLMR No. 1031, 8 A/SLMR 486;
Internal Revenue Service (IRS) and Brooklyn District Office, IRS, 2 FLRA
No. 76, 2 FLRA 587; United States Department of Navy, Bureau of
Medicine and Surgery, Great Lakes Naval Hospital, Illinois, A/SLMR No.
289, 3 A/SLMR 375; Division of Military and Naval Affairs, State of New
York, Albany, New York, 8 FLRA No. 71, 8 FLRA 309, at 320. cf.
Department of Treasury, Internal Revenue Service, Southwest Region,
Dallas, Texas, A/SLMR No. 1144, 8 A/SLMR 1203.
/15/ Department of the Army, U.S. Military Academy, West Point, New
York, A/SLMR No. 1138, 8 A/SLMR 1163.
/16/ Headquarters, 63rd Air Base Group, U.S. Air Force, Norton Air
Force Base, California, A/SLMR No. 761, 6 A/SLMR 679; Social Security
Administration, Bureau of Hearings and Appeals, A/SLMR No. 960, 8 A/SLMR
33.
/17/ Ibid.
/18/ Bureau of Government Financial Operations Headquarters, 11 FLRA
No. 68, 11 FLRA 334.