19:1155(128)CA - Treasury, Customs Service and NTEU and All NTEU Customs Chapters -- 1985 FLRAdec CA
[ v19 p1155 ]
19:1155(128)CA
The decision of the Authority follows:
19 FLRA No. 128
DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND ALL NTEU CUSTOMS CHAPTERS
Charging Party
Case No. 3-CA-30376
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint, and recommending that
it be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the General Counsel and the Charging Party filed
exceptions to the Judge's Decision. The Respondent filed an opposition
to those exceptions and also filed cross-exceptions to the Judge's
Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, except as modified
herein.
The complaint alleges, in substance, that the Department of Treasury,
U.S. Customs Service, violated section 7116(a)(1) and (5) of the Statute
by issuing and subsequently implementing a manual supplement entitled
"Minimal Passenger Baggage Revenue Collections," without providing the
Charging Party with adequate notice and an opportunity to negotiate over
the procedures to be observed and concerning appropriate arrangements
for employees adversely affected.
The National Treasury Employees Union (NTEU) represents a unit of
Respondent's professional and nonprofessional employees at the regional
and Headquarters offices which has been nationally consolidated since
1978. The parties were signatories to a national collective bargaining
agreement at all times material herein. Although, following
consolidation, the level of exclusive recognition was at the national
level, the agreement provided that bargaining may take place at the
regional or district level if a proposed change will only apply to that
level.
On December 17, 1982, the Commissioner of Customs issued Manual
Supplement 3300-21, "Minimal Passenger Baggage Revenue Collections"
(Supplement). This Supplement was issued pursuant to the Respondent's
review of revenue collections at major airports wherein it determined
that the collection of insignificant revenue was not cost effective and
was diverting resources from other important Customs' functions. The
Supplement directed each Regional Commissioner to "identify those
passenger processing locations and operational situations where
collection actions, that are potentially not cost-effective, should be
terminated." Each Regional Commissioner identified certain locations and
established a dollar amount below which collection of duty would be
waived. The implementation of the Supplement's directive was monitored
by the Respondent's program manager.
The Respondent did not have a nationwide policy regarding duty
waivers prior to the Supplement, although certain airports had local
policies. NTEU was not notified at the national level in advance of the
Supplement announcing a nationwide policy. The Judge noted that the
policy was implemented at approximately 25 airports. Among other
matters, as a result of the implementation, cashiers at two of these
airports were not routinely called upon to perform overtime work as they
had been in the past. During overtime hours, the inspectors on duty
performed the cashiers' functions. /1/ The Judge further found that
seven cashiers had lost a total of $16,436.50 in overtime earnings from
the date of the Supplement's implementation to the date of the unfair
labor practice hearing.
The Judge, in essence, concluded that the Respondent's failure to
notify NTEU at the national level and afford it the opportunity to
request negotiations concerning the procedures to be used in the
implementation of the Supplement and any appropriate arrangements for
employees adversely affected thereby violated section 7116(a)(1) and (5)
of the Statute. He determined that the issuance of the Supplement
constituted a change that had a reasonably foreseeable impact which was
more than de minimis in that it might lead to reductions in overtime,
reductions in force, or classification changes for cashiers. He
concluded that there was an actual impact, noting the loss in overtime.
He also found that such losses were precipitated by the national
Supplement and that any bargaining should have taken place at the
national level. Finally, he did not order a status quo ante remedy
relying on the factors set forth in Federal Correctional Institution, 8
FLRA 604 (1982), and further denied a request for a backpay award. The
Union filed exceptions to the Judge's failure to grant a status quo ante
remedy. The Respondent filed cross-exceptions arguing, inter alia, that
the General Counsel had failed to establish that the issuance of the
Supplement had more than a de minimis impact on conditions of employment
of unit employees.
There is no allegation or contention that the Agency owed a duty to
the Union to negotiate over the substance of its decision to issue the
Supplement and it is not at issue herein. Rather, the complaint alleges
a failure to bargain over procedures and arrangements for adversely
affected employees resulting from such issuance pursuant to section
7106(b)(2) and (3) of the Statute. The Authority has held that "where
an agency in exercising a management right under section 7106 of the
Statute, changes conditions of employment . . ., the statutory duty to
negotiate comes into play if the change results in an impact upon unit
employees or such impact was reasonably foreseeable." See U.S.
Government Printing Office, 13 FLRA 203, 204-05 (1983). The Authority
thereafter held that "no duty to bargain arises from the exercise of a
management right that results in an impact or a reasonably foreseeable
impact on bargaining unit employees which is no more than de minimis."
See Department of Health and Human Services, Social Security
Administration, Chicago Region, 15 FLRA No. 174 (1984). The Authority
has also held that in determining whether the impact or reasonably
foreseeable impact of the exercise of a management right on bargaining
unit employees is more than de minimis, the totality of the facts and
circumstances presented in each case must be carefully examined. Thus,
in Department of Health and Human Services, Social Security
Administration, Region V, Chicago, Illinois, 19 FLRA No. 101 (1985), the
Authority looked to such factors as the nature of the change (e.g., the
extent of the change in work duties, location, office space, hours, loss
of benefits or wages and the like); the temporary, recurring or
permanent nature of the change (i.e., duration and frequency of the
change affecting unit employees); the number of employees affected or
foreseeably affected by the change; the size of the bargaining unit;
and the extent to which the parties may have established through
negotiations or past practice procedures and appropriate arrangements
concerning analogous changes in the past. /2/ The Authority also
emphasized therein that the factors considered in the circumstances of
that case were not intended to constitute an all-inclusive list or to be
applied in a mechanistic fashion. Moreover, the Authority noted that a
determination as to whether the exercise of a management right under
section 7106(a) of the Statute gives rise to a duty to bargain under
section 7106(b)(2) and (3) will not necessarily require in every case a
determination as to whether the exercise of the management right results
in a change in a condition of employment having an impact or a
reasonably foreseeable impact on bargaining unit employees which is more
than de minimis, especially where there is no indication that the nature
and degree of impact is at issue in the case. However, in cases where
it must be determined whether the nature and degree of impact is more
than de minimis, factors such as those listed above will be considered.
Turning to the instant case, the Authority finds, in agreement with
the Judge's conclusion, and based upon the totality of the facts and
circumstances presented, that the issuance of the Supplement did have an
impact or a reasonably foreseeable impact on the conditions of
employment of unit employees and that such impact or reasonably
foreseeable impact was more than de minimis. Therefore, the Respondent
was obligated to notify the Union and bargain upon request over the
procedures it would observe in exercising its section 7106 rights and
concerning appropriate arrangements for adversely affected employees.
In reaching this result, the Authority notes with respect to the nature
of the change that issuance of the Supplement resulted in the
elimination of overtime for cashiers at a number of airport locations
and the loss of overtime earnings for such employees. Additionally, and
as found by the Judge, such a change had a reasonably foreseeable impact
on unit employees in terms of potential reductions-in-force, reductions
in overtime, classification changes and other changes in the assignment
of work. The duration of the change as it affected unit employees was
permanent insofar as the Supplement directed termination of certain
collection actions and its impact on unit employees was immediate. As
to the number of employees affected and the size of the bargaining unit,
the record indicates that a number of employees at about 25 airport
locations were affected out of the nationwide unit, and that
implementation of the Supplement was to occur in each of the
Respondent's regions, thereby foreseeably impacting on the entire
classification of cashiers throughout the agency. Finally, while there
was a practice of waiving certain duty collections at a few airports,
issuance of the Supplement created a new, nationwide policy concerning
which the parties had not previously negotiated on a nationwide basis.
Accordingly, based on the totality of the facts and circumstances
presented, the Authority finds, in agreement with the Judge, that there
was more than a de minimis impact on unit employees and that the
Respondent was obligated to notify and bargain with the Union pursuant
to section 7106(b)(2) and (3) of the Statute.
As the issuance of the Supplement had more than a de minimis impact
upon bargaining unit employees, the Authority concludes, in agreement
with the Judge, that the Respondent's failure to give appropriate and
timely notice at the level of exclusive recognition to the national
representative before issuing and implementing the Supplement violated
section 7116(a)(1) and (5) of the Statute. The unit of employees
represented by the Union in this case is a nationally consolidated unit.
As such, the appropriate level of exclusive recognition is with the
national Union. See Department of Health and Human Services, Social
Security Administration, 6 FLRA 202 (1981). /3/
The Authority also adopts the Judge's remedial conclusions with
regard to the status quo ante and backpay requests. Thus, balancing the
nature and circumstances of the violation against the degree of
disruption in the Respondent's operations that would be caused by such a
remedy, and taking into consideration the factors set forth in Federal
Correctional Institution, 8 FLRA 604 (1982), the Authority concludes
that an order giving the employees' exclusive representative an
opportunity to bargain concerning the procedures and arrangements for
employees adversely affected will remedy the violation in this case and
will effectuate the purposes and policies of the Statute. In this
regard, it is noted that a status quo ante remedy would disrupt or
impair the efficiency of Respondent's operation since the purpose of the
Supplement was to increase efficiency and to redirect resources to
necessary functions. Furthermore, under the circumstances of this case,
it cannot be shown that, but for Respondent's refusal to negotiate
concerning procedures and arrangements for employees adversely affected,
the employees would have received the overtime earnings. Thus, the
Authority concludes that a backpay remedy is not warranted. See, e.g.,
Federal Aviation Administration, Northwest Mountain Region, Seattle,
Washington and Federal Aviation Administration, Washington, D.C., 14
FLRA 644 (1984).
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, shall:
1. Cease and desist from:
(a) Any further implementation of Manual Supplement No. 3300-21 of
December 17, 1982, subject, "Minimal Passenger Baggage Revenue
Collections," without first notifying the National Treasury Employees
Union, the employees' exclusive representative, and affording it an
opportunity to negotiate on (1) the procedures to be observed in any
further implementation, and (2) appropriate arrangements for employees
who have been, or may be, adversely affected by the implementation of
the manual supplement.
(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
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request by the National Treasury Employees Union, the
employees' exclusive representative, negotiate concerning (1) the
procedures to be observed in implementing Manual Supplement No. 3300-21
of December 17, 1982, subject, "Minimal Passenger Baggage Revenue
Collection," and (2) appropriate arrangements for employees who have
been, or may be, adversely affected by the implementation of the manual
supplement.
(b) Post at all facilities wherein there are bargaining unit
employees represented by the National Treasury Employees Union, 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 Commissioner, or a 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 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 III, Federal Labor
Relations Authority, Washington, D.C., 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., August 30, 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 further implement Manual Supplement No. 3300-21 of December
17, 1982, subject, "Minimal Passenger Baggage Revenue Collections,"
without first notifying the National Treasury Employees Union, the
employees' exclusive representative, and affording it an opportunity to
negotiate on (1) the procedures to be observed in any further
implementation, and (2) appropriate arrangements for employees who have
been, or may be, adversely affected by the implementation of the manual
supplement. WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of their rights assured by
the Federal Service Labor-Management Relations Statute. WE WILL, upon
request by the National Treasury Employees Union, the employees'
exclusive representative, negotiate concerning (1) the procedures to be
observed in implementing Manual Supplement No. 3300-21 of December 17,
1982, subject, "Minimal Passenger Baggage Revenue Collections," and (2)
appropriate arrangements for employees who have been, or may be,
adversely affected by the implementation of the manual supplement.
(Agency or 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 of the Federal
Labor Relations Authority, Region III, whose address is: 1111 18th
Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758
and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-30376
Drew W. Hatcher, Esquire
For the Respondent
John McEleney, Esquire
For the Charging Party
Ana de la Torre, Esquire
Bruce D. Rosenstein, Esquire
For the General Counsel
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region III, Federal Labor Relations Authority,
Washington, D.C. against the Department of the Treasury, U.S. Customs
Service (Customs or Respondent), based on a charge filed by the National
Treasury Employees Union (NTEU) and all NTEU Customs Chapters (Charging
Party, NTEU, or Union). The complaint alleged, in substance, that
Respondent violated sections 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute),
by issuing and, subsequently, implementing a Manual Supplement titled,
"Minimal Passenger Baggage Revenue Collections," without providing the
Union with adequate notice and an opportunity to negotiate over the
impact and procedures for implementation of the Manual Supplement.
Respondent's answer admitted the jurisdictional allegations relating
to the charge, the Union, and Respondent, but denied any violation of
the Statute.
A hearing was held in Washington, D.C. The Respondent, Charging
Party, and the General Counsel were represented by counsel and afforded
full opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The parties
filed helpful briefs, and the proposed findings have been adopted in
whole or in substance where found material and supported by the record
as a whole. Based on the entire record, /4/ including my observation of
the witnesses and their demeanor, I make the following findings of fact,
conclusions of law, and recommendations.
Findings of Fact
The Customs Service is a primary national subdivision of the
Department of the Treasury. Its overall mission includes the collection
of revenue on goods entering the United States, enforcement of laws
which prohibit the importation of narcotics, and enforcement of
currency, export control, and related laws. (Tr. 59-60). The Customs
Service is divided into seven Regions, each headed by a Regional
Commissioner. The Regions are: Northeast, New York, Southeast, South
Central, Southwest, Pacific, and North Central (Tr. 60).
An appropriate unit of Respondent's employees assigned to the above
Regional Offices and at Headquarters, Washington, D.C., are exclusively
represented for the purpose of collective bargaining and representation
before Respondent by the Union. The unit which the Union represents is
a nationally consolidated unit which was consolidated in the latter part
of 1978. One of the primary effects of this national consolidation has
been to raise the appropriate level of bargaining from the local or
regional level to the national level of both parties (Tr. 20-21).
The Union and the Respondent are signatories to a national collective
bargaining agreement which became effective on June 30, 1980 and
continues in effect. The parties have provided in Article 37, Section 6
of their National Agreement, as follows, as to the appropriate levels
for negotiations related to impact bargaining whenever there is a
proposed change in unit employees' working conditions:
A. The parties agree that proposed changes which apply on a
nationwide basis shall be negotiated at the National Office.
B. Proposed changes which apply only within one Region or the
Headquarters office will be negotiated at the Regional, or
Headquarters office, or upon mutual agreement, at another
organizational office.
C. Proposed changes which apply only to one District, Area,
Headquarters Division or subdivision thereof will be negotiated at
the District, Area, or Headquarters Division office or upon mutual
agreement, at another organizational office.
D. Proposed changes which apply to more than one Region or the
Headquarters office and one Region-- but are less than nationwide
in application will be negotiated at the National office, or, upon
mutual agreement, at the Regional office(s). (Joint Exh. 3, p.
220).
The parties' national agreement also addresses in Article 22
assignment of overtime work. Section 2(A) of that Article recognizes
that the "performance of assigned overtime is a condition of
employment." Article 6 of the parties' national agreement titled
"Protections Against Prohibited Personnel Practices" includes in Section
1(B)(9) "a decision concerning pay" as a "personnel action." (Joint Exh.
3, pp. 17, 132).
In November 1982, Respondent's Office of Inspection and Control
conducted a review of passenger baggage revenue collections at major
airports and determined that inspectors were spending a great deal of
time calculating and collecting insignificant amounts of monies. The
Office determined that this work was not cost effective and diverted
resources from more important Customs functions, such as the
interception of narcotics and other contraband. (Tr. 74-75).
Accordingly, on December 17, 1982, the Commissioner of Customs issued
Manual Supplement 3300-21, "Minimal Passenger Baggage Revenue
Collections." The manual supplement provided in part as follows:
1. PURPOSE
To enhance the cost-effectiveness of Customs passenger baggage
operations by redirecting resources involved in processing minimal
collections, when the revenue return is insufficient to justify
further processing and the passenger volume interferes with
enforcement and facilitation imperatives.
2. BACKGROUND
The processing of minimal collections from non-commercial
passenger baggage has not been found to be cost-effective.
Furthermore, resources expended in this pursuit affect our ability
to obtain increased enforcement, facilitation and revenue returns.
Customs managers require the flexibility to employ practical,
cost-effective measures in dealing with specific operational
situations.
3. ACTION
In accordance with the provisions of 4 CFR 104.3(c), which
permits the termination of collection activity when the cost of
collection will exceed the amount recoverable, regional
commissioners will identify those passenger processing locations
and operational situations where collection actions, that are
potentially not cost-effective, should be terminated.
Any directive implementing this procedure should specify that
the decision to terminate minimal non-commercial passenger baggage
collection actions is made during or prior to the primary phase of
inspection. To ensure uniformity, the Customs Declaration (CF
6059B) will be annotated "collection waived-- 4 CFR 104.3(c)." /5/
(G.C. Exh. 2).
The new Manual Supplement did not identify or designate the specific
locations for the introduction of the new duty waiver policy, nor did it
establish or set the amount of duty to be waived (Tr. 75). Pursuant to
the Manual Supplement, each of the seven Regional Commissioners of the
Customs Service designated locations and established dollar amounts
below which the collection of duty on passenger baggage would be waived
(Tr. 77), 79, 89; Joint Exh. 1 & 2). John H. Heinrich, Program
Manager, Office of Inspections and Control, monitored the implementation
of the waiver policy by the Regional Offices (Tr. 76-77).
Prior to the issuance of Manual Supplement 3300-21, Respondent did
not have a nationwide policy regarding the waiving of collections of
minimal amounts of revenue from baggage declarations. However, local
management at approximately seven airport locations had policies which
permitted the waiver of small amounts (.04-$3). Miami had a
discretionary policy permitting the waiver of $10 or less when necessary
to facilitate passenger processing. (Tr. 78, 89; G.C. Exh. 2; Joint
Exh. 1(1); Joint Exh. 2(2)).
Phillip Spayd, Director of Labor Relations for the Customs Service,
reviewed the manual supplement prior to issuance and decided that it did
not need to be sent to the national office of the Union. He concluded
that the manual supplement did not mandate any action or implementation
and there would be nothing to bargain (Tr. 188-190).
The NTEU National Office did not receive advance notice or an
opportunity to bargain prior to the issuance of the Manual Supplement
(Tr. 24, 188). Instead, John McEleney, NTEU Director of Negotiations,
first learned of the Manual Supplement from unit employees in various
locations around the country. These employees were concerned that
implementation of the manual supplement would mean fewer cashiers and
result in possible reductions in force, reduced overtime, or
classification changes (Tr. 24-25).
Beginning as early as January 28, 1983, the Pacific Region began its
implementation of the Headquarters manual supplement with its issuance
of a Regional Manual Supplement which established a $25.00 duty waiver
(Tr. 170-171; Jt. Exh. 1). The Pacific Regional Supplement cited the
Headquarters Manual Supplement 3300-21 of December 17, 1982 as its
authority, and its purpose was stated to be: "to implement Headquarters
policy regarding the waiving of collections on passenger declarations
where such collections are deemed not to be cost-effective" (Jt. Exh.
1).
Honolulu
Following instructions from the Pacific Regional Office to begin
implementation of a $25.00 waiver, Respondent, at the Honolulu Airport,
instructed the cashiers stationed there to review duty collections made
during four days in January, 1983 (Resp. Exh. No. 11 and Tr. 172-175).
On February 19, 1983, Lawrence Barone, the Chief at Honolulu Airport,
notified the local Chapter 151 Union President, Neal Yoshimura, of
Respondent's intention to effect implementation of Headquarters Manual
Supplement 3300-21 and Regional Supplement 3113-04. The Union was told
that the impact of this implementation would entail "changes to the
cashier call out procedure effective Sunday, February 27, 1983. From
that date on cashiers will no longer be called out for scheduled CO, CPA
and SPIA flights arriving during overtime periods." (Resp. Exh. No. 12;
Tr. 176-177).
The local Chapter 151 Union Vice-President, Richard Tannahill,
replied to Barone on March 19, 1983 requesting a delay in the newly
established March 21, 1983 implementation date in view of the filing by
the Union of an unfair labor practice charge. (Resp. Exh. No. 13).
On March 21, 1983, Barone issued orders effective that day changing
the call out policy for cashiers at Honolulu Airport by establishing
that cashiers would no longer be routinely called to work overtime /6/
between the hours of 1700 to 0600 hours (Resp. Exh. No. 14). As a
result of this action, Joyce Yoda had an overtime earnings reduction of
$2,624.40 from March 21, 1983 through September 21, 1983; Jean Kawamura
lost $2,273.92 from March 22, 1983 through September 20, 1983; Florence
Murata had an overtime earnings reduction of $2,574.88 from March 30,
1983 through August 30, 1983; and Ms. Jean Tokunaga lost $2,574.88 from
March 30, 1983 through September 20, 1983 (Jt. Exh. 1). During the
period when no cashier was on duty, any required collections were made
by the inspectors (Tr. 170, 180).
Minneapolis
On or about the afternoon of February 9, 1983, one month before the
North Central Regional Manual Supplement would issue on March 9, 1983,
implementing the Headquarters Manual Supplement, the Minneapolis
District Director informed Customs management personnel at the
Minneapolis Airport to immediately implement the policy of the national
manual supplement by not collecting under $10.00 or less (Tr. 136, 143
and Jt. Exh. 2). Customs management personnel at the airport realized
that implementation of such an order would significantly impact upon
excess baggage duty collections then being made and upon the overtime
the cashiers were then working (Tr. 137; 143-144). Consequently,
Donald E. Jokinen, Chief Inspector, notified the chief steward for NTEU,
Herman Kelgenberg, of these new orders and arranged a meeting with him.
(Tr. 136-137 and 143-144). Kelgenberg was the Union official normally
contacted by Jokinen concerning the implementation of local airport
changes (Tr. 147-148). No efforts were made to contact the local
(Chapter 170) Union President, John Schmahl, regarding this matter (Tr.
145).
At the meeting, management representatives and chief steward
Kelgenberg discussed the national manual supplement and the parties
signed a document indicating that agreement had been reached on how the
duty waiver policy would be implemented at the airport (Tr. 137,
139-141; Resp. Exh. 7). The principal change brought about by the
agreement was that cashier/aides would not normally be called out to
service flights arriving during the overtime period between 5:00 p.m.
and 8:00 a.m. (Tr. 133-134, 137, 139, 142). Any required collections
thereafter were made by the inspectors on duty (Tr. 133).
A few days thereafter, on February 14, 1983, Mr. Schmahl, the local
union president, wrote to the District Supervisory Customs Inspector
disavowing any "agreement" and "negotiations which took place on
February 9, 1983" (G.C. Exh. No. 4). The letter claimed that the $10.00
waiver had regional, if not national, impact and that the national
headquarters of NTEU would be requesting bargaining. (G.C. Exh. 4).
Three cashiers, Zelda Christian, Ione M. Olson, and Darlene Bulov,
who had in the past worked overtime making excess baggage duty
collections at the Minneapolis Airport immediately experienced reduced
overtime earnings. (Tr. 142, 144 and Jt. Exh. No. 2). From February 9,
1983, through September 30, 1983, these cashiers were not assigned to
work overtime on approximately 127 flights that they would have had the
opportunity to work prior to the change. They lost $6,388.42 in
traditional overtime earnings (Tr. 142, 144 and Jt. Exh. No. 2).
Chicago
Chicago's O'Hare Airport is also part of the North Central Region and
became subject to the same Regional efforts to implement the
Headquarters Manual Supplement as was experienced at the Minneapolis
Airport (Jt. Exh. No. 2(1); Tr. 160). Instructions for implementation
of the duty waiver were received in Chicago on or about February 14,
1983, initially establishing a $25.00 waiver (Tr. 154; 159-160).
Implementation of that policy at Chicago O'Hare airport took effect on
or about February 14, 1983. However, the one cashier at O'Hare did not
experience any change in overtime assignments or loss of overtime
earnings as a result of the implementation (Tr. 154-157).
Miami
From March 6, 1981, to February 10, 1983, Miami International Airport
had a local discretionary waiver policy in effect whereby Customs
Inspectors were authorized to waive the collection of duty and taxes
when the combined amount was under $10.00. The purpose of the
discretionary waiver was to facilitate the passenger processing flow.
Supervisors exercised a great deal of discretion. If the airport was
full, supervisors would make sure lesser amounts were not collected. If
the airport was only moderately full, the duty was collected. (Tr. 102,
126-127; 195-196; Resp. Exh. 6). Prior to March 1983, the largest
volume of duty came from collections of amounts under $10.00 (Tr. 197).
On February 10, 1983, the Southeast Region, of which Miami
International Airport is a part, issued orders implementing the
Headquarters Manual Supplement by enacting a $10.00 excess baggage duty
waiver (Tr. 98; G.C. Exh. No. 3). The Southeast Region Telex
instructed the Regions that revenue collections less than $10.00 "will
be waived" and, in apparent reference and conformance with the
annotation instructions of the Headquarters Manual Supplement,
instructed the local airports that "Customs Declarations (CF-6059 B)
will be annotated 'collection waiver-- 4 CFR 104.3(c)' when a waiver is
granted."
At about the same time the mandatory policy waiver directive was
implemented in Miami, there also occurred a change in the amount of
overtime assignments and earnings by cashiers as a result of a decision
made by local airport management in March 1983 to make call-out
assignment policy more compatible with the logistics of the airport and
the arrival of flights. (Tr. 110).
Prior to this change in assignment policy, cashiers were routinely
called out on overtime at 5:45 a.m. with inspectors and supervisors as
part of the Customs team assigned to service Pan Am Flight 440 arriving
from South America (Tr. 110). Cashiers earned 3 overtime periods for
working from 5:45 a.m. to 8:00 a.m. when the regular shift began. One
overtime period was earned for working the two hours from 6:00 a.m. to
8:00 a.m. and two overtime periods were earned for the 15 minutes from
5:45 a.m. to 6:00 a.m. Under the 1911 overtime law, employees called
out before 6:00 a.m. earn two overtime periods if they work any part of
an hour (Tr. 41).
Customs officials decided that since the distance between the
international arrival area and the Customs area in the airport satellite
building was more than a mile, it was virtually impossible for
passengers to disembark the plane, clear immigration, pick up baggage,
go to the Customs area, have an inspector calculate the duty, and be
referred to a cashier all before 6:00 a.m. Therefore, Customs officials
decided it would be more prudent and cost-effective to assign cashiers
at 6:00 a.m. instead of 5:45 a.m., the scheduled arrival time for Pan Am
Flight 440. (Tr. 110-112).
After this change in March 1983, Mr. Johnson and the two other
employees performing the cashier function at MIA frequently earned only
one overtime period for working between 6:00 a.m. and 8:00 a.m. instead
of three overtime periods they had earned when called out at 5:45 a.m.
For example, after the change Mr. Ronald Johnson earned $28.28 for one
overtime period instead of $84.84 for three overtime periods. /7/ The
change in assignment policy covered Customs inspectors as well. Instead
of calling out 10 inspectors at 5:45 a.m., after the policy change, only
two inspectors were called at 5:45 a.m. (Tr. 111).
The manual supplement was implemented at approximately 21 other
locations (Tr. 79). The record does not reflect any specific impact on
conditions of employment at these locations.
Discussion, Conclusions and Recommendations
The initial issues presented for determination are (1) whether
issuance of the manual supplement had an impact or reasonably
foreseeable impact on the conditions of employment of unit employees,
and (2) if so, whether Respondent's negotiations with local Union
officials in Honolulu and Minneapolis fulfilled its obligations under
the Statute.
The Authority has emphasized that where an agency is exercising a
management right under section 7106 of the Statute, changes conditions
of employment of unit employees, the statutory duty to negotiate comes
into play if the change results in an impact upon unit employees or such
impact was reasonably foreseeable. U.S. Government Printing Office and
Joint Council of Unions, GPO, 13 FLRA No. 39, 13 FLRA 203 (1983). I
conclude that issuance of the manual supplement here did have a
reasonably foreseeable impact on the conditions of employment of unit
employees. A nationwide policy regarding the waiving of collections of
minimal amounts of revenue from baggage declarations did not exist prior
to issuance of the manual supplement. Thus, the institution of such a
policy represented a change. The expressed purpose of the issuance was
to "redirect resources" involved in processing minimal passenger baggage
revenue collections. The determination was made that such processing
"has not been found to be cost-effective." Regional commissioners were
directed to "identify those passenger processing locations and
operational situations where collection actions, that are potentially
not cost-effective, should be terminated." The regions were expected to
implement the policy, and the implementation was monitored from Customs
headquarters. Since no revenue was to be collected in such situations,
and resources were to be "redirected," it was reasonable to anticipate a
decrease in the volume of work for cashiers which could lead to
reductions in overtime, reductions in force, or classification changes
among the cashiers and other changes in the assignment of work. The
record shows that some unit employees did lose overtime following the
issuance of the manual supplement and that such loss was precipitated by
the manual supplement. Thus, management's action had an impact on unit
employees and, in addition, it was reasonably foreseeable that the
issuance of the manual supplement would have an impact on the conditions
of employment of unit employees which was more than de minimus.
Therefore, Respondent was required to provide adequate prior notice of
its decision to the exclusive representative of its employees so as to
provide an opportunity to negotiate concerning the procedures to be
followed in implementing the decision (section 7106(b)(2) or appropriate
arrangements for adversely affected employees (section 7106(b)(3)).
The Authority has held that following a certification for a
consolidated unit, the appropriate unit then established for bargaining
is at the national level. Department of Health and Human Services,
Social Security Administration, 6 FLRA 202 (1981). The Statute provides
in section 7103(a)(12) that collective bargaining over conditions of
employment is a mutual obligation that exists between "the
representative of an Agency and the exclusive representative of
employees in an appropriate unit . . .." Thus, the legal effect of
national unit consolidation is to terminate the local union's existence
as the exclusive representative and the appropriate unit for bargaining
and replace it with the national union. American Federation of
Government Employees, Local 1164, AFL-CIO and the Social Security
Administration, 6 FLRA 324 (1981).
Parties to a collective bargaining agreement may, of course, agree to
negotiations at a level below the level of exclusive recognition. Here,
the parties did agree to such a provision making bargaining appropriate
at a sub-level when the change in working conditions is local and thus
will "apply only within one Region." However, the record has established
that the duty waiver applied to more than one Region. As noted, Customs
headquarters did not merely advise the Regions to consider terminating
the collection of minimal passenger baggage revenue, but, in effect,
directed them to take action to terminate minimal collections. Cf.
Kansas Army National Guard and National Guard Bureau, 10 FLRA 303, 10
FLRA No. 56 (1982). The role of the Regions was limited to taking
actions to implement the headquarters directive, i.e. to identify those
locations within their Regions where collection actions should be
terminated in accordance with the national policy. Cf. Department of
Health and Human Services, Social Security Administration, 10 FLRA 77,
10 FLRA No. 20 (1982). Customs headquarters monitored the
implementation, and the seven Regions took steps to comply with the
headquarters mandate. Accordingly, the change clearly involved more
than one region. In my view, there is no legitimate issue of an
arguable interpretation of Article 37 of the agreement on the theory
that bargaining only became appropriate when the Regions identified the
locations and set the amounts of the waiver. The local union chapters
herein were not the appropriate units for bargaining over this
headquarters policy which had nationwide impact. Thus, any notice or
negotiations which may have occurred at the local level was without
legal significance. In fact, this type of conduct, where the agency
refuses to provide notice and engage in negotiations at the level of
exclusive recognition and where the local activities below the level of
exclusive recognition attempt to engage the local unions in
negotiations, has previously been found by the Authority to have
"undermined the very purpose of consolidation", thereby causing a
violation of section 7116(a)(1) and (5) of the Statute. Social Security
Administration, 11 FLRA No. 76, 11 FLRA 390, 409 (1983). Respondent's
failure to give appropriate and timely notice at the level of exclusive
recognition before issuing and implementing the manual supplement
violated section 7116(a)(1) and (5) of the Statute, as alleged.
Department of Health and Human Services, Social Security Administration,
10 FLRA 77, 10 FLRA No. 20 (1982); Department of the Interior, U.S.
Geological Survey, Conservation Division, Gulf of Mexico Region,
Metairie, Louisiana, 9 FLRA 543, 9 FLRA No. 65 (1982).
Balancing the nature and circumstances of the violation against the
degree of disruption in government operations that would be caused by a
status quo ante remedy, and taking into consideration the various
factors set forth in Federal Correctional Institution, 8 FLRA No. 111
(1982), including the requirement that the Act be interpreted in a
manner consistent with the requirement of an effective and efficient
Government, it is concluded that an order requiring the Respondent to
bargain upon request about impact and implementation will best
effectuate the purposes and policies of the Statute. A status quo ante
remedy would seriously disrupt the efficiency of Customs operations
since one purpose of the manual supplement was to redirect resources to
more important law enforcement functions. A status quo remedy would
also increase costs assessed against airlines at the affected airports.
The General Counsel and the Charging Party also request a backpay
award for those employees who lost the opportunity to work overtime
following the unilateral implementation of the manual supplement. The
record does reflect the actual amount of overtime lost by employees at
the Honolulu and Minneapolis locations. Inasmuch as it has not been
established herein that, but for the Respondent's improper refusal to
negotiate over the impact and implementation of the manual supplement,
the employees would not have suffered a loss of pay, recent Authority
precedent does not allow for an award of backpay under the Backpay Act,
5 U.S.C. 5596. See Federal Aviation Administration, Northwest Mountain
Region, Seattle, Washington, 14 FLRA No. 89, 14 FLRA 644, 649-650
(1984); Department of the Air Force, Air Force Systems Command,
Electronic Systems Division, 14 FLRA No. 63, 14 FLRA 390, 392 (1984).
But see United States Department of the Treasury, Internal Revenue
Service, Dallas District, 13 FLRA No. 82, 13 FLRA 459 (1983).
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Department of the Treasury, U.S.
Customs Service shall:
1. Cease and desist from:
(a) Any further implementation of Manual Supplement No. 3300-21
of December 17, 1982, subject, "Minimal Passenger Baggage Revenue
Collections," without first notifying the National Treasury
Employees Union, the employees' exclusive representative, and
affording it an opportunity to negotiate on (1) the procedures to
be observed in any further implementation, and (2) appropriate
arrangements for employees who have been, or may be, adversely
affected by the implementation of the manual supplement.
(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 purposes and policies of the Statute.
(a) Upon request by the National Treasury Employees Union, the
employees' exclusive representative, negotiate concerning (1) the
procedures to be observed in implementing Manual Supplement No.
3300-21 of December 17, 1982, subject, "Minimal Passenger Baggage
Revenue Collection," and (2) appropriate arrangements for
employees who have been, or may be, adversely affected by the
implementation of the manual supplement.
(b) Post at all facilities wherein there are bargaining unit
employees represented by the National Treasury Employees Union
copies of the attached Notice marked "Appendix" on forms to be
furnished by the Authority. Upon receipt of such forms, they
shall be signed by the Commissioner, 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 insure that such notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director,
Region III, Federal Labor Relations Authority, Washington, D.C.,
in writing, within 30 days from the date of this order, as to what
steps have been taken to comply herewith.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: July 12, 1984
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT further implement Manual Supplement No. 3300-21 of December
17, 1982, subject, "Minimal Passenger Baggage Revenue Collections,"
without first notifying the National Treasury Employees Union, the
employees' exclusive representative, and affording it an opportunity to
negotiate on (1) the procedures to be observed in any further
implementation, and (2) appropriate arrangements for employees who have
been, or may be, adversely affected by the implementation of the manual
supplement. WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of their rights assured by
the Federal Service Labor-Management Relations Statute. WE WILL, upon
request by the National Treasury Employees Union, the employees'
exclusive representative, negotiate concerning (1) the procedures to be
observed in implementing Manual Supplement No. 3300-21 of December 17,
1982, subject, "Minimal Passenger Baggage Revenue Collections," and (2)
appropriate arrangements for employees who have been, or may be,
adversely affected by the implementation of the manual supplement.
(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 of
the Federal Labor Relations Authority, Region III, whose address is:
1111 18th Street, N.W., Suite 700, Post Office Box 33758, Washington,
D.C. 20033-0758 and whose telephone number is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel excepted, in part, to the Judge's failure to
find that inspectors at the Miami airport performed a Cashier's function
when no cashier was on duty. This finding was made in regard to the
Honolulu and Minneapolis airports. The Authority finds no error in the
Judge's findings of fact. As the Supplement was not responsible for the
loss of overtime earnings at the Miami airport, it was not necessary to
determine whether the inspectors performed cashiers' functions.
/2/ Additionally, Member McGinnis indicated in a separate concurring
opinion that he would also consider, in determining de minimis issues,
when the implementation of a change would involve or adversely affect
unit employees in assessing the totality of the facts and circumstances
presented.
/3/ Though the parties could agree to allow negotiations at a level
below the level of exclusive recognition, id. at 204 n. 2, and though
the parties in the instant case did agree to local negotiations if a
proposed change only applied at the local level, the Authority agrees
with the Judge's conclusion that the proposed change here applied at the
national level. The Supplement directed each Regional Commissioner to
comply with the national policy by terminating collection actions where
such actions were potentially not cost-effective. Furthermore, the
Respondent monitored the local implementation.
/4/ Respondent's ten page motion to correct approximately 187 errors
in the transcript is unopposed and is hereby granted. The transcript
contains about an equal number of other obvious errors and some
omissions (recorded as "inaudible") which, while deplorable, are not
deemed to be material. The extremely poor quality of the transcript
apparently resulted from the reporting service taping the hearing
through a single microphone.
/5/ 4 C.F.R. 104.3(c) is part of the Federal Claims Collection
Standards jointly established by the General Accounting Office and the
Department of Justice. This regulation provides that, "Collection
action may be terminated on a claim when it is likely that the cost of
further collection will exceed the amount recoverable thereby."
/6/ The overtime to which a Customs cashier is entitled is commonly
referred to as "1911 overtime," or "reimbursable overtime." 1911 refers
to the date of the Act which established it, 19 U.S.C. 1451. The cost
of this overtime is billed by the Government to the carrier requesting
the services of Customs personnel outside of normal working hours (Tr.
112-113).
/7/ Mr. Johnson attributed his $1,894.76 loss of overtime earnings
and that of Isabelle Pimpido ($1,230.00) and Terry Ruchmon ($1,500.00)
to the implementation of the mandatory waiver policy. However, I credit
the detailed testimony of Pierre Herbert, Supervisory Customs Inspector,
Miami, that, beginning in March 1983, cashiers and some inspectors were
not called out on overtime prior to 6 a.m. because of the determination
that passengers arriving from Pan Am Flight 440 at 5:45 a.m. would not
need a cashier prior to 6 a.m. in view of the arrangement of the
airport.