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17:0221(33)CA
The decision of the Authority follows:
17 FLRA No. 33
DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE AND
U.S. CUSTOMS SERVICE, REGION IX
CHICAGO, ILLINOIS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 5-CA-30046
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Motion to Transfer Proceeding to the Authority and
Stipulation" in accordance with section 2429.1(a) of the Authority's
Rules and Regulations.
Upon consideration of the entire record, including the stipulation of
facts and the contentions of the parties, the Authority finds:
The National Treasury Employees Union (Union) represents a unit of
various employees of the U.S. Customs Service including inspectional
employees assigned to the Metro Airport Detroit District in Detroit,
Michigan (hereinafter Metro Airport). The Detroit District is part of
the U.S. Customs Service's Region IX, located in Chicago, Illinois. The
complaint herein alleges that the Respondent, U.S. Customs Service and
U.S. Customs Service, Region IX, violated section 7116(a)(1) and (5) of
the Federal Service Labor-Management Relations Statute (the Statute) by
unilaterally implementing a change in the duty hours of inspectional
employees at the Metro Airport without bargaining over the substance,
impact and implementation of the change.
The record indicates that at least since 1975, a practice existed at
the Metro Airport whereby customs inspectors worked a 9:00 a.m. to 5:00
p.m. shift with no formal lunch break or lunch period included in the
shift. On September 15, 1982, the Respondent notified the Union of its
intent to change the existing 9:00 a.m. to 5:00 p.m. tour of duty to
9:00 a.m. to 6:00 p.m. and to include a one-hour non-paid meal period.
The Respondent further advised that the proposed change would become
effective on October 3, 1982. The Union thereupon requested bargaining
over the substance, impact and implementation of the change and
submitted several proposals. The record indicates that the parties met
on October 1, 1982, and bargained concerning various aspects of the
proposed change, but that the Respondent refused to bargain over the
substance of the change. Among the matters agreed to by the parties was
the duration of the meal period. Initially, the Respondent proposed
that there be a one-hour meal period. Ultimately, the parties agreed to
a thirty-minute non-paid meal period. The Respondent then indicated
that the starting and quitting times of the shift would be 9:30 a.m. to
6:00 p.m. and refused to bargain over the Union's proposed starting and
quitting times of 9:00 a.m. to 5:30 p.m. or its subsequently proposed
8:30 a.m. to 5:00 p.m. tour of duty. Implementation of the 9:30 a.m. to
6:00 p.m. starting and quitting times took place on November 1, 1982.
The parties have stipulated that the change in hours did not
establish an additional shift or tour of duty but merely changed the
existing tour of duty for customs inspectors. Additionally, the parties
have stipulated that the change substantially impacted on the working
conditions of bargaining unit employees inasmuch as employees received
overtime pay for hours worked beyond 5:00 p.m. prior to the change but
only for hours worked after 6:00 p.m. subsequent to the change.
The Respondent essentially argues that no bargaining obligation
existed with respect to the change in starting and quitting times by
virtue of language contained in Article 21, Section 2 of the parties'
expired agreement. That language provided as follows:
ARTICLE 21
HOURS OF WORK
Section 2. For employees engaged in inspectional activities,
law enforcement activities, and their required support personnel
(normally those employees working under the jurisdiction of the
Office of Border Operations), the employer shall establish,
maintain and change those shifts, tours of duty and hours of work
to best promote the efficient and effective accomplishment of the
mission and operations of the Service.
The Respondent argued that the terms of this provision continued
notwithstanding the expiration of the agreement.
In Federal Aviation Administration, Northwest Mountain Region,
Seattle, Washington and Federal Aviation Administration, Washington,
D.C., 14 FLRA 644 (1984), the Authority determined that a contractual
waiver of bargaining rights constituted a permissive subject of
bargaining under the Statute. The Authority noted that while a waiver
of bargaining rights was binding on the parties during the life of an
agreement, once that agreement expired, either party was free to
terminate such practice. Having found the waiver provision to be a
permissive subject of bargaining, the Authority then concluded that
agency management was not free to insist upon its continuation once the
union indicated that it no longer wished to be bound by such a provision
but instead sought to exercise its statutory bargaining rights.
In the instant case, the Authority finds that Article 21, Section 2
of the expired agreement constituted a waiver of the Union's statutory
right to bargain. While binding during the life of the agreement, it
was terminable by either party upon the agreement's expiration. When
the Respondent notified the Union of its intention to change the
starting and quitting times for customs inspectors at the Metro Airport,
and the Union requested bargaining over the substance of the decision as
well as its impact and implementation, the Union was expressing its
desire that it no longer wished to be bound by the provision but instead
wanted to exercise its statutory bargaining rights. Accordingly, the
Respondent was no longer free to insist upon the continuation of this
provision so as to preclude bargaining over the change in starting and
quitting times. See Department of Transportation, Federal Aviation
Administration, Washington, D.C., and its Chicago Airways Facilities
Sector, 16 FLRA No. 71 (1984).
With respect to the Respondent's obligation to bargain over the
change in starting and quitting times, the Authority finds that such a
matter was within the required scope of bargaining under the Statute.
The Authority has previously held that the decision to change starting
and quitting times is subject to the duty to bargain unless it can be
demonstrated that such a change directly or integrally relates to the
numbers, types or grades of employees or positions assigned to a work
project or tour of duty so as to be determinative of such numbers, types
or grades and therefore negotiable solely at the election of the agency
under section 7106(b)(1) of the Statute. /1/ In the instant case,
noting the parties' stipulation that the change in starting and quitting
times did not establish an additional shift or tour of duty but merely
changed the existing tour of duty, and in the absence of any evidence
that such change was in any manner determinative of the numbers, types
or grades of employees assigned to the tour of duty, the Authority finds
that the Respondent was obligated to bargain over the change in starting
and quitting times. Its refusal to do so is therefore violative of
section 7116(a)(1) and (5) of the Statute.
To remedy the unfair labor practice conduct, the General Counsel and
the Union have requested a status quo ante order. Additionally, but
without any specificity, the Union has requested that backpay be given
"to all affected inspectional personnel in the amount they would have
earned in overtime pay between the hours of 5:00 p.m. and 6:00 p.m. had
this violation not occurred," and also "an order requiring payment of
appropriate attorney's fees."
In the Authority's view, an order which requires the Respondent to
bargain with the Union, upon its request, concerning the starting and
quitting times for customs inspectors assigned to the Metro Airport will
best effectuate the purpose and policies of the Statute. Thus, as
previously noted, the hours of the shift prior to the Respondent's
change were 9:00 a.m. to 5:00 p.m. and did not include a non-paid meal
period. Subsequently, the parties bargained and reached agreement over
the addition of a thirty-minute non-paid meal period. This addition
necessarily had the effect of altering the starting or quitting time of
the existing shift. A status quo ante order which would require
reinstatement of the 9:00 a.m. to 5:00 p.m. tour of duty would be
inconsistent with the parties' agreement concerning the thirty-minute
non-paid meal period and would not, in the Authority's view, effectuate
the purposes and policies of the Statute.
With respect to the Union's request for backpay and attorney's fees,
the Authority finds, as to the former, that it has not been established
that but for the Respondent's improper refusal to bargain over the
starting and quitting times, employees would have received overtime pay.
/2/ Under these circumstances, the Authority concludes that a backpay
order is not warranted. As to the request for attorney's fees, the
Union has not indicated under what authority it is seeking such a remedy
or in any manner demonstrated any possible basis for an award of such
fees. /3/ Accordingly, the Authority finds no reason to grant such
request.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Department of the Treasury, U.S. Customs Service and U.S.
Customs Service, Region IX, Chicago, Illinois, shall:
1. Cease and desist from:
(a) Instituting any change in the starting and quitting times of
customs inspectors at the Metro Airport Detroit District without
affording the National Treasury Employees Union, the exclusive
bargaining representative of its employees, the opportunity to negotiate
with respect to such change.
(b) In any like or related manner interfering with, restraining or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request of the National Treasury Employees Union, bargain
concerning the starting and quitting times of customs inspectors at the
Metro Airport Detroit District.
(b) Post at its facilities in the Metro Airport Detroit District
copies of the attached Notice on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms, they shall be
signed by the Regional Commissioner of Region IX, or his designee, 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 ensure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director, Region
V, 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., March 18, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any change in the starting and quitting times of
customs inspectors at the Metro Airport Detroit District without
affording the National Treasury Employees Union, the exclusive
bargaining representative of our employees, the opportunity to bargain
with respect to such change. WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in the exercise of
their rights assured by the Federal Service Labor-Management Relations
Statute. WE WILL, upon request of the National Treasury Employees
Union, bargain concerning the starting and quitting times of customs
inspectors at the Metro Airport Detroit District.
. . . (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: 175
Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604, and whose
telephone number is: (312) 353-6306.
--------------- FOOTNOTES$ ---------------
/1/ See, e.g., Department of Transportation, Federal Aviation
Administration, Washington, D.C., and its Chicago Airways Facilities
Sector, supra; U.S. Customs Service, Region V, New Orleans, Louisiana,
9 FLRA 116 (1982); and National Treasury Employees Union, Chapter 66
and Internal Revenue Service, Kansas City Service Center, 1 FLRA 926
(1979).
/2/ See, Federal Aviation Administration, Northwest Mountain Region,
supra, and cases cited therein.
/3/ See, in this connection, International Brotherhood of Electrical
Workers, 14 FLRA 680 (1984).