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29 FLRA No. 35

U.S. CUSTOMS SERVICE
WASHINGTON, D.C.

              Respondent

      and

NATIONAL TREASURY EMPLOYEES
UNION

              Charging Party

Case Nos.  8-CA-60340
           8-CA-60341
           8-CA-60342

DECISION AND ORDER

I. Decision

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 complaints in Case Nos. 8-CA-60340 and 8-CA-60341 and recommending that the Respondent be ordered to cease and desist from the alleged unfair labor practices and take appropriate remedial action. The Judge also found that the Respondent had not engaged in the unfair labor practice alleged in the complaint in Case No. 8-CA-60342 and recommended that that portion of the consolidated complaint be dismissed. Neither party filed exceptions to the Judge's decision and order recommending dismissal of the complaint in Case No. 8-CA-60342. The Respondent filed exceptions to the Judge's decision in Case Nos. 8-CA-60340 and 8-CA-60341. The Charging Party filed cross exceptions and an opposition to the Respondent's exceptions. 1

Pursuant to section 2324.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service [PAGE] Labor - Management Relations Statute (the Statute), we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's decision, the exceptions, cross-exceptions, opposition and the entire record, we adopt the Judge's findings, conclusions and recommended order. 2

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute:

A. The United States Customs Service, Washington, D.C. shall:

(1) Cease and desist from:

(a) Unilaterally changing working conditions of unit employees by detailing Customs Inspectors to the Contraband Enforcement Team, without first affording the National Treasury Employees Union, the exclusive representative of its employees, the opportunity to negotiate over the impact on unit employees and the manner of implementation of the change.

(b) Unilaterally changing working conditions of unit employees by implementing a policy of permanently prohibiting employee parking in the West Secondary Lot in the San Ysidro Border Station, Port of San Diego, without first affording the National Treasury Employees Union, the exclusive representative of its employees, an opportunity to negotiate over the substance of the change. [ v29 p2 ]

(c) In any like or related manner, interfering with, restraining or coercing any of its employees in the exercise of the rights assured them 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) Rescind the policy of permanently prohibiting employee parking in the West Secondary Lot, San Ysidro Border Station, Port of San Diego.

(b) Notify the National Treasury Employees Union, the exclusive representative of its employees, of any intended changes in conditions of employment, including changes in parking policies, and afford it the opportunity to negotiate over the changes.

(c) Upon request, negotiate with the National Treasury Employees Union, the exclusive representative of its employees, over the manner of implementation and the impact on unit employees of the detail of Customs Inspectors to the Contraband Enforcement Team located at the San Ysidro Border Station, Port of San Diego.

(d) Post at its facilities throughout the San Diego 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 a Regional commissioner 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.

(e) Pursuant to section 2324.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, in writing, within 30 days from the date of this order, as to what steps have been taken to comply. [ v29 p3 ]

B. The complaint in Case No. 8-CA-60342 is dismissed.

Issued, Washington, D.C., September 30, 1987.

Jerry L. Calhoun, Chairman

Henry L. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p4 ]

                    NOTICE TO ALL EMPLOYEES
       AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
             AND TO EFFECTUATE THE POLICIES OF THE
        FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                 WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change working conditions of unit employees by implementing a policy of permanently prohibiting employee parking in the West Secondary Lot in the San Ysidro Border Station, Port of San Diego, without first affording the National Treasury Employees Union, the exclusive representative of our employees, an opportunity to negotiate over the change.

WE WILL NOT unilaterally change working conditions of unit employees by detailing Customs Inspectors to the Contraband Enforcement Team, without first affording the National Treasury Employees Union, the exclusive representative of our employees, the opportunity to negotiate over the impact on unit employees and manner of implementation of the change.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL rescind the policy of permanently prohibiting employee parking in the West Secondary Lot, San Ysidro Border Station, Port of San Diego.

WE WILL notify the National Treasury Employees Union, the exclusive representative of our employees, of any intended changes in conditions of employment, including changes in parking policies, and afford it the opportunity to negotiate over the changes.

WE WILL upon request, negotiate with the National Treasury Employees Union, the exclusive representative of our employees, over the impact on unit employees and the manner of implementation of the detail of Custom Inspectors to the [PAGE] Contraband Enforcement Team at the San Ysidro Border Station, Port of San Diego.

                             ______________________________
                                   (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 VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 894-3805. [ v29 p2 ]

UNITED STATES CUSTOMS
SERVICE, WASHINGTON, D.C.

              Respondent

    and

NATIONAL TREASURY EMPLOYEES,
UNION

              Charging Party

Case Nos.: 8-CA-60340
           8-CA-60341
           8-CA-60342

Jonathan S. Levine, Esq.
         For the General Counsel

Stephanie J. Dick, Esq.
         For the Respondent

William Corman, Esq.
         For the Charging Party

Before: BURTON S. STERNBURG
        Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101 et seq. and the Rules and Regulations issued thereunder.

Pursuant to three separate charges filed on may 29, 1986, by the National Treasury Employees Union, (hereinafter called the Union or NTEU), a Consolidated Complaint and Notice of Hearing was issued on August 29, 1986, by the Regional Director for Region VIII, Federal Labor Relations Authority, Los Angeles, California. The Consolidated Complaint alleges that the United States Customs Service, Washington, D.C., (hereinafter called the Respondent or Customs Service), violated Sections 7116(a)(1) and (5) of the Federal Labor - Management Relations Statute (hereinafter called the [PAGE] Statute), by virtue of its actions in (1) detailing unit employees to the Contraband Enforcement Team, (2) permanently prohibiting unit employees from parking in the West secondary Lot and (3), temporarily reassigning Canine Enforcement officers to the Contraband Team without first notifying the Union and providing it with the opportunity to negotiate over the substance of the changes and/or the impact and the manner of implementation of the changes. 3

A hearing was held in the captioned matter on November 18, 1986, in San Diego, California. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel, Respondent and Charging Party submitted post-hearing briefs on various dates in February, 1987, which have been duly considered.

Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions, and recommendations.

Findings of Fact

The Union is the certified exclusive representative in a national consolidated unit which includes all non-professional employees assigned to the Headquarters Office and nine Regional Offices of the Respondent. Among the Regional Offices included in the consolidated unit is the Pacific Region of the Respondent which includes the San Diego District. The Port of Entry at San Ysidro, California is under the jurisdiction of the San Diego District. At the time of the events underlying the instant Complaint there were approximately 250 bargaining unit employees working at the San Ysidro facility, approximately 150 which held the [ v29 p2 ] position of Customs Inspector. Mr. Gurdit Dhillon is the San Ysidro Port Director. Mr. Robert Clark and Mr. Joe Walker are President and Executive Vice President - Chief Steward, respectively, of Chapter 105, NTEU which services the San Ysidro facility.

In the latter part of 1985, based upon congressional pressure and certain intelligence information which indicated that large quantities of narcotics were being smuggled into the United States through the San Ysidro Port of Entry by means of secret compartments hidden in fully loaded trucks, Respondent decided to conduct a secret special operation at the San Ysidro Port of Entry designed to interdict the narcotic shipments. Three of the changes and/or alterations made in the normal procedures utilized at the San Ysidro Port in connection with the special operation are the subject of the instant complaint.

The basic plan underlying the special operation was to inspect empty trucks returning to Mexico for purposes of discovering secret compartments which could be utilized for the smuggling of narcotics. Upon discovery of the presence of such compartments, the trucks would then be put on a computer for later identification when they returned at a subsequent time fully loaded to the United States. According to the testimony of Mr. Alan J. Rappoport, District Director of Customs for San Diego, who is credited in this respect, secrecy of the operation was necessary since the San Ysidro Port was constantly under surveillance by the smugglers who could easily defeat the operation by diverting their trucks to other points of entry, etc.

The San Ysidro Port of Entry has upwards of twenty primary inspection lanes. Behind the primary inspection lanes are two large parking lots known as the East Secondary Area and the West Secondary Area. The secondary areas behind the primary inspection lanes are generally used for more thorough inspections of cars and trucks suspected of carrying prohibited substances. Thus, when an inspector in a primary lane suspects that a vehicle has contraband on board he will send the vehicle to the secondary lot for a more comprehensive or thorough search. According to the record, the West Secondary Lot has approximately 36 parking spaces, 18 of which are assigned to Respondent. The remaining parking spaces are assigned to GSA and other Government agencies. When the West Secondary Lot is not in use, the Customs Inspectors have in the past been allowed to [ v29 p3 ] park their private cars in the parking slots assigned to the Respondent on the West Secondary Lot. However, when a special operation is in effect on the West Secondary Lot the employees are generally prohibited from parking thereon. Since April 1985 there have been two occasions when the employees have been prohibited from parking on the West Secondary Lot because of a special operation conducted thereon. The prohibition on parking, however, was for a specific period as opposed to an unknown indefinite period of time. When the special operation ended the employees were allowed to resume parking on the West Secondary Lot.

8-CA-60341 Prohibiting unit employees from parking on the West Secondary Lot.

On or about November 7, 1985, San Ysidro Port Director Gurdit Dhillon informed Mr. Robert Clark, President of Chapter 105, that due to a special operation the unit employees would be prohibited from parking in the West Secondary Lot effective November 21, 1985. Mr. Clark informed Mr. Dhillon that he wanted to bargain about the change and designated Mr. Walker, Chapter 105's Executive Vice - President and Chief Steward as his bargaining representative. Although Mr. Walker and Mr. Dhillon subsequently met and discussed the matter no agreement was forthcoming since Mr. Dhillon apparently did not have authority to consummate an agreement. Thus, Mr. Dhillon informed Mr. Walker that he, Mr. Walker, would have to talk with the San Diego District Office which had initiated the prohibition, Mr. Walker did not contact the District Office and the unit employees continued to park on the West Secondary Lot past the November 21, 1985, announced effective date of the prohibition.

On or about January 24, 1986, the General Services Administration, which has overall responsibility for the West Secondary Lot posted the following notice on bulletin boards and in the Lot itself.

At the request of the U.S. Customs Service, we are informing you that the West Secondary parking areas will be used for official purposes until further notice.

Please advise all your personnel that employee parking will not be allowed in the West Secondary lot effective 1/29/86. [ v29 p4 ]

On January 24, 1986, the Union, which had never received any formal notification of the new notice of prohibition, sent a letter to Mr. Rappoport, the San Diego District Director, requesting substance and impact bargaining over the newly announced prohibition against parking in the West Secondary Lot. Respondent never responded to the Union's request for bargaining.

The record establishes that despite the fact that the special operation is not utilizing the West Secondary Lot on a regular basis, i.e. every day, the unit employees, unlike the employees of the other Agencies having some 16 parking slots, have not been able to park on the West Secondary Lot. According to Mr. Rappoport the Respondent has been keeping the West Secondary Lot empty since it contemplates on-going use of the parking lot in connection with enhanced enforcement operations. It appears to be Mr. Rappoport's intention to use the West Secondary Lot on an irregular basis so as to confuse the drug smugglers and prevent them from being able to predict the Respondent's operation.

While the prohibition on parking in the West Secondary Lot did not result in any unit employee having to pay for parking, the employees were forced to park their cars in "off street" parking areas or on the "employee parking lot" which holds some 99 cars. According to the testimony of Mr. Dhillon which is supported by documentary exhibits the employee parking lot is closer to the check-in point than the West Secondary Lot. According to the testimony of Mr. Clark and Mr. Walker whose testimony in this connection stands uncontradicted, the alternative parking spaces utilized by the unit employees who formerly utilized the West Secondary Lot are, because of their location, not as safe from vandalism and tampering and cannot be easily monitored for safety.

8-CA-60340 Detail of employees to the Contraband Enforcement Team (CET).

The CET is a group of unit employees who specialize in the interdiction of narcotics and other contraband from entry into the United States. The regular Customs Inspectors who also search for illegal narcotics, etc., primarily handle routine passenger and cargo processing.

In connection with the special operation involving the inspection of empty trucks returning to Mexico, it was determined that the CET should be strengthened by the [ v29 p5 ] addition of some 12-13 employees from the Customs Inspectors' ranks for a period not to exceed 120 days. In accordance with its interpretation of the collective bargaining agreement in effect, the Respondent treated the temporary duty to be a detail and opted to solicit volunteers for the detail. Prior to the actual solicitation of volunteers the Union, which had not been formally notified of Respondent's intentions, requested bargaining over the procedures to be utilized in selecting the employees for the temporary duty, taking the position that the temporary duty was a reassignment and not a detail as contended by the Respondent. 4

On February 25, 1986, the Respondent, without any negotiations or bargaining with the Union, published a memorandum which solicited volunteers for a detail not to exceed 120 days. According to the memorandum the operation was to commence on March 3, 1986. Subsequently, the Respondent selected some 12 Customs Inspectors to serve a 120 day detail on the CET. [ v29 p6 ]

According to the credited testimony of Union President Clark, on or about February 26, 1986, he was approached by Supervisory Customs Inspector Ronald Heuschele, who was responsible for planning the special operation, and informed by him that the Union's February 25, 1986 letter incorrectly cited and relied upon a particular provision of the collective bargaining agreement. Thereupon, they entered into a discussion over whether the transferred employees should be considered reassignments or detailees. The meeting ended with Mr. Clark taking the position that even if Respondent was right the Union intended to bargain over the impact and manner of implementation. Thus, according to Mr. Clark, he told Mr. Heuschele, "fine I want to sit down and discuss and negotiate the impact and implementation" of the transfer of the employees to the CET unit. Although Mr. Heuschele informed Mr. Clark that he would get back in touch with him, he never did.

According to the credited testimony of Mr. Walker and Mr. Clark the Customs Inspectors detailed to the CET were (1) subjected to changing shifts as opposed to an assigned shift for an entire month, (2) deleted from the overtime pool thereby lessening opportunities to work overtime, and (3) subjected to greater physical stress in that the CET inspections were confined exclusively to trucks as opposed to automobile and trucks on the regular inspection lanes. The Customs Inspectors remaining on the inspection lines were (1) subjected to greater overtime obligations and forfeiture of their scheduled days off due to the depletion of the Customs Inspector pool of employees, the loss of opportunities to make seizures since the inspection of trucks had been removed from their inspection duties, and the possibility of lower appraisals since the number of seizures played an important part in their respective appraisals. Finally, the Customs Inspectors remaining on the primary inspection lanes were at a disadvantage in the area of promotion to the GS-11 Senior Customs Inspector positions in the CET since those employees serving on the 120 day detail to the CET would have an advantage in achieving selection for such position. 5 [ v29 p7 ]

8-CA-60342 Temporary Reassignment of Canine Enforcement Officers (CEO).

The CEOs are trained in the utilization of narcotics detector dogs which are used to assist the Customs Inspectors in the discovery of narcotics. When a Customs Inspector on the primary inspection line suspects that a vehicle is trans-porting narcotics the Customs Inspector will normally send the vehicle to the East Secondary Lot where the vehicle will be inspected by the CEO and his trained dog. Upon discovery of narcotics both the Customs Inspector and the CEO will be credited with the seizure for purposes of meeting their respective quotas. The success in meeting their respective quotas is reflected in the CEO and Inspectors' yearly appraisals.

Normally, there were two CEOs assigned to the day shift and two CEOs assigned to the night shift at the San Ysidro facility. However, sometime prior to February 14, 1986, Mr. Clark learned from a CEO and then from a CEO supervisor that Respondent in connection with the special operation in the West Secondary Lot intended to move the CEOs to the West Secondary Lot. On February 14, 1986, the Union, which had not been formally notified of the intended relocation of the CEOs, wrote a letter to Respondent wherein it requested impact and implementation bargaining on the intended transfer of the CEOs. According to Mr. Clark, the Respondent did not formally respond to the Union's request for bargaining. In this latter connection Mr. Heuschele, a Supervisory Customs Inspector, testified that he informed Mr. Clark that all the proposals but one in the Union's February 14, 1986 letter were non-negotiable. With regard to the one proposal concerning the impact on the Customs Inspectors remaining on the line, i.e., inability to use narcotics dogs to detect narcotics thereby lessening their chances to make the narcotic seizure quotas imposed upon them, Mr. Heuschele told Mr. Clark that Respondent would take care of the problem if it ever became an issue. According to Mr. Heuschele, Mr. Clark never came back to him and told him "that there was an issue" with respect to the CEOs. To the extent that the testimony of Mr. Clark and Mr. Heuschele differ, I credit Mr. Heuschele's testimony.

With respect to the impact, the record establishes that the CEOs working in the West Secondary Lot for the period March 3 - April 16, 1986, were less than a minute away from the Customs Inspectors working the primary lanes and were available to the Customs Inspectors upon request. [ v29 p8 ]

The CEOs, since they were working primarily in the West Secondary Lot, allegedly lost the opportunity to inspect full loaded trucks and thereby participate in contraband seizures which play an important part in their respective appraisals.

Discussion and Conclusions

The General Counsel and the Charging Party take the position that the Respondent violated Sections 7116(a)(1) and (5) of the Statute when it effectuated the three changes without giving the Union appropriate timely notice and an opportunity to bargain over the impact and manner of implementation with respect to the CET detail and the reassignment of the CEOs. With respect to the absolute prohibition on employee parking instituted on the West Secondary Lot, the General Counsel and Charging Party take the position that Respondent was obligated to bargain over the substance of the prohibition as well as the impact and manner of implementation. Thus, contrary to the contention of the Respondent, it is the position of the Charging Party and the General Counsel that the three changes had more than a de minimis impact on the working conditions of the unit employees. With respect to the changes in the West Secondary Lot they point out that inasmuch as the substance of the change is negotiable, the extent of the impact does not come into play. Finally, they take the position that the passing discussions of the changes by various members of the Respondent with various Union representatives, who were not named as points of contact by the Union President, did not satisfy the bargaining obligations imposed by the Statute.

The Respondent takes the position that with respect to the CET detail it was under no obligation to give notice to, and bargain with, the Union over the detail since it followed the negotiated procedures set forth in Article 20, Section 9 dealing with details. Additionally, Respondent relies on Article 41, Section 3 of the contract which provides that the parties do not have to bargain on any subject during the life of the agreement. 6 [ v29 p9 ]

Given the above contractual provisions, the Respondent argues that inasmuch as it complied with same, it was under no obligation to bargain over the CET detail unless there was more that a de minimis impact on the unit employees. In this latter connection Respondent urges a finding that CET detail did not have more than a de minimis impact on the unit employees. To the extent that Mr. Clark and Mr. Walker's testimony support a contrary conclusion, Respondent would discredit them. With respect to the failure to give advanced notice to the Union of the CET detail, Respondent defends its action on the necessity for secrecy and Article 37, Section 9 of the collective bargaining agreement, as well as Section 7106(a)(1)(D) of the Statute. 7

Finally, Respondent defends its alleged failure to bargain with respect to the CET detail on the failure of the Union to follow the contract and submit written proposals to the Respondent. According to the Respondent the only written proposal on the CET detail submitted by the Union concerned the appropriate contract provision to be utilized in the selection of the Customs Inspectors for the detail. 8 [ v29 p10 ]

With respect to Respondent's action in prohibiting parking on the west Secondary Lot, Respondent takes the position that there was no change in established working conditions since it is an operational area as opposed to a designated parking area and, as such, constitutes "methods and means of performing work" which is only subject to bargaining at the election of the Respondent. The foregoing aside, Respondent further argues that the policy of prohibiting the use of the parking lot was in accordance with past practice and the written parking policy which permits parking on the West Secondary Lot only when it is not being used for Customs' operations. Finally, noting the availability of closer parking facilities and the fact that none of the Customs Inspectors were forced to pay any parking fees for the new parking spaces, some of which were on the street, Respondent takes the position that any adverse impact on the unit employees was "clearly de minimis".

With respect to the CEO detail, for approximately 45 days, the Respondent takes the position that it was under no obligation to bargain with the Union over the detail since there was no impact on the CEOs or the Customs Inspectors in the East Primary lanes, and also because the details fell within the CEO position description. Thus, the Respondent points out that the reassignment on a temporary basis did not cause either the CEOs or the Customs Inspectors remaining in the East Primary Lanes to lose any points or seizures towards an acceptable performance appraisal since the CEOs new West Secondary stations were less than a minute away from the East Primary Lanes and, they (the CEOs) were available on request.

Finally, Respondent, based upon the testimony of Mr. Heuschele, takes the alternative position that it did fulfill its bargaining obligations with respect to the CEO assignments.

It is well established that when management utilizes its "management rights" set forth in Section 7106 of the Statute and makes changes in established conditions of employment, absent a clear and unmistakable waiver by the Union, it, management, is required to give timely notice to the Union and, upon request, bargain with the Union over the manner of implementation of the changes and the impact of the changes on affected unit employees. Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA 922. When the changes do not involve the exercise of the "management rights" set forth in Section 7106, management [ v29 p11 ] is obligated, prior to making any change in existing terms or conditions of employment, to give timely notice to the Union and on request bargain with the Union concerning the substance of the proposed change, irrespective of the extent of the impact on unit employees. U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, 19 FLRA 290. With respect to impact bargaining, the Authority has concluded that the obligation to bargain thereon only arises when the changes in conditions of employment have more than a "de minimis" impact on unit employees. In determining the extent of the impact, i.e. whether it is "de minimis" or not, the Authority has made it clear that it "will place principal emphasis on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change in conditions of employment on bargaining unit employees. Equitable considerations will be taken into account in balancing the various interests involved". Department of Health and Human Services, Social Security Administration, 24 FLRA 42. 9

With the above legal principles in mind, we must now consider the three unilateral changes instituted by the Respondent.

With respect to Case No. 8-CA-60341 concerning Respondent's action in permanently prohibiting employee parking on the West Secondary Lot, I find that by such action Respondent violated Section 7116(a) (1) and (5) of the Statute. Thus, the record indicates that while there have been temporary bans in the past on the West Secondary Lot for purposes of utilizing the lot for special operations, such bans were not continued past the time the special operation had ceased. It is Respondent's action in continuing the parking prohibition past the time that it was actively used for the special operation that is the basis of the alleged Section 7116(a) (1) and (5) violation.

Respondent justifies its action on the ground that it could not give timely notice since it was concerned with secrecy and the element of surprise, without which it had no chance of investigating the empty trucks returning to Mexico and possibly discovering hidden compartments. Inasmuch as I [ v29 p12 ] find Mr. Alan Rappoport, District Director for the San Diego District, who testified about the necessity for the secrecy of the operation in order to insure its success, to be a credible witness, I find that Respondent's failure to give timely notice to the Union with respect to this change, as well as the two other changes to be discussed infra, falls within the provisions of Section 7106(a)(1)(D) of the Statute and Article 37, Section 9 of the contract, both of which allow management to implement a change and bargain with the Union on a post-implementation basis when an emergency exists. Thus, I find that the Congressional pressure and the intelligence information concerning the illegal drug shipments created an emergency situation which necessitated immediate secret action. I further find that the special operation might well have been compromised had the Respondent given the Union timely notice and the opportunity to bargain over the substance of its decision to close the West Secondary Lot to employee parking prior to implementing its decision.

While I have found under all the circumstances herein that the Respondent was not under an obligation to give timely notice, I do find, however that Respondent was obligated to bargain the substance of its decision to ban parking on the West Secondary Lot after the special operation was over. Having knowingly allowed the unit employees to use the West Secondary Lot at all times when there was not an on-going special investigation, I find that the use of the lot became a condition of employment over which Respondent was obligated to bargain prior to making any changes therein. The record supports the General Counsel's contention that Respondent failed to fulfill its bargaining obligation. The most that can be said for the Respondent, is that it attempted to assuage the Union by attempting to save a few parking spaces. Subsequently, when higher authority vetoed the Respondents offer of a limited number of spaces, there was no further attempt at negotiations. Accordingly, since it is clear that Respondent was obligated to bargain with the Union over the extended parking ban on the West Secondary Lot, I find that Respondent's failure to do so violated Sections 7116(a)(1) and (5) of the Statute. In reaching this decision I rely on the Authority's decision in U. S. Immigration and Naturalization Service, 16 FLRA 1012, which is based upon facts substantially similar to those herein.

To the extent that Respondent defends its action on the ground that it has all intentions of resuming the special operation on the West Secondary Lot in the near future, I [ v29 p13 ] find such defense to be without merit. Inasmuch as it has always been the past practice to allow the employees to park in the West Secondary Lot during periods when the lot was not in actual use, a prohibition on parking during periods of inactivity on the lot would be a change in the past practice. Accordingly, if it is the Respondent's intention to permanently ban employee parking on the lot so that it may initiate a special operation at any time without further ado, then in order to accomplish this aim it is under an obligation to give timely notice to the Union, and, upon request, bargain with the Union over the substance of its decision to permanently ban parking on the West Secondary Lot. U.S. Immigration and Naturalization Service, supra. In the-absence of any showing that a status quo remedy would disrupt the Respondent's operations, I shall recommend same.

With respect to Case No. 8-CA-60342 concerning the temporary reassignment of the CEOs to the West Secondary Lot, I find in agreement with Counsel for the Respondent that the impact on unit employees was de minimis. In reaching this conclusion it is noted that the CEOs were moved to a position which was less than one minute away from their former positions in the East Secondary Lot and were always available, upon request, to the Customs Inspectors working on the East Primary Inspection Lanes. To the extent that the General Counsel argues that by virtue of their reassignment both they and the first line Customs Inspectors lost opportunities to make seizures and earn points towards their performance appraisals, the record evidence supports a contrary conclusion. Moreover, it appears that the CEOs participation in secondary searches in the East Secondary Lot were usually initiated by the first line Customs Inspectors, a procedure which continued to be available to them after the CEOs were reassigned to the West Secondary Lot. Thus, the only difference in procedure, after the CEOs were reassigned, was that the CEOs had to travel less than a minute to assist the inspectors working the East Primary Lanes. If a seizure was made both the CEO and the Customs Inspector working the primary lanes would receive credits towards their respective yearly performance appraisals. While it is conceded that the CEOs were working exclusively on trucks in the West Secondary Lot as opposed to both cars and trucks in the East Secondary Lot, I find such distinction to be insignificant. Accordingly, on the basis of the fore-going I shall recommend that this aspect of the complaint be dismissed in its entirety.

Finally, with respect to Case No. 8-CA-60340 concerning the detail of employees to the Contraband Enforcement Team [ v29 p14 ] (CET), I find in agreement with the General Counsel that Respondent violated Sections 7116(a)(1) and (5) of the Statute when it failed to accede to the Union's request for impact bargaining. In reaching this conclusion I note, contrary to the contention of the Respondent, that the detail had a substantial impact on both groups of unit employees, i.e. those selected and those not selected. Thus, the record shows that the Customs Inspectors detailed to the CET were subjected to changing shifts as opposed to an assigned shift for an entire month, and also deleted from the overtime pool. The Customs Inspectors remaining on the primary inspection lines performing their customary functions were subjected to greater overtime obligations and forfeiture of scheduled days off due to the depletion of the number of Customs Inspectors in the pool of available employees. Most important, the Customs Inspectors remaining on the line were put at a disadvantage in the area of promotion to the position of GS-11 Senior Customs Inspector in the CET since those inspectors serving on the detail would have had 120 days of experience on the CET. As noted in the factual portion of this decision, when selections were eventually made for the GS-11 Senior Customs Inspector positions the selections were mainly from the employees who had served on the 120 day detail. This latter item, standing alone, would justify the need for impact bargaining.

With respect to Respondent's remaining defenses, i.e. reliance on a contractual provision allowing for such details and the absence of written proposals from the Union, I find such defenses to be without merit. Thus, while the collective bargaining contract does provide for details such as the one under attack herein, other provisions of the contract obligate the Respondent to bargain with the Union if there is an impact on unit employees. It is not the Respondent's action in detailing the unit employees to the CET which is being alleged as an unfair labor practice but rather its refusal to bargain over the impact of the detail on unit employees. With respect to the Respondent's defense predicated, allegedly, upon the Union's failure to submit written proposals, I find, that under the circumstances herein the Union substantially complied with the contractual provision and therefore, further find Respondent's defense to be without merit. Here we have a situation wherein the Respondent, due to the secrecy of its mission, decides to utilize various contractual and statutory provisions which excuse the giving of timely notice prior to making a change in working conditions and then turns around and challenges the Union's request for impact bargaining on the ground that such request did not specifically comply with the collective [ v29 p15 ] bargaining agreement in that it did not contain written proposals. Having put the Union at a decided disadvantage by implementing certain changes in working conditions prior to giving timely notice, equity demands that Union's request for bargaining be liberally construed for purposes deter-mining contractual compliance. In this context, I find that a demand for bargaining which specifically raises the "promotion potential" and the advantage that the detailed Customs Inspectors will have for the Senior Inspector positions adequately conforms to Article 37, Section 4 of the collective bargaining agreement relative to the submission of written bargaining proposals.

Having found that the Respondent violated Sections 7116(a)(1) and (5) of the Statute by virtue of its actions in failing and refusing to bargain with the Union over the substance and/or impact of its decisions to permanently ban parking at any time on the West Secondary Lot and detail a number of employees to the Contraband Enforcement Team (CET) it is hereby recommended that the Authority adopt the following order designed o effectuate the purposes and policies of the Statute. 10

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, 5 U.S.C., Section 7118, it is ordered that the United States Customs Service, Washington, D.C. shall:

1. Cease and desist from:

(a) Unilaterally changing working conditions of unit employees by detailing inspectors to the Contraband Enforcement Team (CET), without first affording the National Treasury Employees Union, the exclusive representative of our employees, hereinafter called the Union, the [ v29 p16 ] opportunity to negotiate over the impact on unit employees and the manner of implementation of such change.

(b) Unilaterally changing working

conditions of unit employees by implementing a policy of permanently prohibiting employee parking in the West Secondary Lot in the San Ysidro Border Station, Port of San Diego, without first affording the Union an opportunity to negotiate over the substance of such change.

(c) In any like or related manner interfering with, restraining or coercing any employee in the exercise of the rights guaranteed 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) Rescind the policy of permanently prohibiting employee parking in the West Secondary Lot, San Ysidro Border Station, Port of San Diego.

(b) Upon request, negotiate with the Union over the manner of implementation and the impact on unit employees of the detail of inspectors to the CET located at the San Ysidro Border Station, Port of San Diego.

(c) Post at its facilities throughout the San Diego 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 a Regional Commissioner, 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. [ v29 p17 ]

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, 350 South Figueroa Street, 10th Floor, Los Angeles, CA 90071, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

IT IS FURTHER ORDERED that the remaining allegations of the complaint dealing with the reassignment of Canine Enforcement Officers to the West Secondary Lot should be, and hereby are, dismissed.

BURTON S. STERNBURG
Administrative Law Judge

Dated:  May 28, 1987
        Washington, D.C.

[ v29 p18 ]

                     NOTICE TO EMPLOYEES
                   POSTED BY ORDER OF THE
              FEDERAL LABOR RELATIONS AUTHORITY
          AN AGENCY OF THE UNITED STATES GOVERNMENT

We have been found by the Federal Labor Relations Authority to have committed an unfair labor practice. We have been ordered to post this Notice and abide by its provisions.

WE WILL NOT unilaterally change working conditions of unit employees by detailing of inspectors to the Contraband Enforcement Team (CET), without first affording National Treasury Employees Union, hereinafter called the Union, the exclusive representative of our employees, the opportunity to negotiate over the impact on unit employees and manner of implementation of such change.

WE WILL NOT unilaterally change working conditions of unit employees by implementing a policy of permanently prohibiting employee parking in the West Secondary Lot in the San Ysidro Border Station, Port of San Diego, without first affording the Union an opportunity to negotiate over such change.

WE WILL rescind the policy of permanently prohibiting employee parking in the West Secondary Lot, San Ysidro Border Station, Port of San Diego.

WE WILL, upon request, negotiate with the Union over the impact on unit employees and manner of implementation of the detail of inspectors to the CET at the San Ysidro Border Station, Port of San Diego.

WE WILL, notify the Union of any intended changes in conditions of employment, including changes in parking policies, and afford it the opportunity to negotiate over said changes.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of their rights guaranteed by the Federal Service Labor - Management Relations Statute.

                                 ____________________________
                                    (Agency or Activity)

Dated:________________________By:____________________________
                                        (Signature)

[PAGE]

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 VIII, whose address is: 350 S. Figueroa Street, 10th Floor, Los Angeles, CA 90071, and whose telephone number is: (213) 894-3805. [ v29 p2 ]

FOOTNOTES

Footnote 1 The Counsel for the General Counsel also filed limited cross-exceptions. Since the limited cross-exceptions filed on behalf of the General Counsel were untimely, they have not been considered.

Footnote 2 In adopting the Judge's findings and conclusions, we differ with the Judge's analysis in certain respects. The Judge found that the use of the West Secondary Parking Lot had become a condition of employment over time. A matter does not become a condition of employment through past practice. Rather, an independent analysis of whether a matter is a condition of employment at the time a dispute arises is necessary. Department of the Treasury, Internal Revenue Service (Washington, D.C.), 27 FLRA No. 45 (1987). In this case, we find that employees use of the parking lot was a condition of employment at the time of change.

Footnote 3 The Complaint alleges a Section 7116(a)(1) and (5) violation predicated on Respondent's failure to bargain the substance of its decision to ban parking on the West Secondary Lot. With respect to the two instances involving the detailing and temporary reassigning of employees, the Complaint alleges a Section 7116(a)(1) and (5) violation predicated only on Respondent's alleged failure to bargain the impact and manner of implementation of the detail and temporary reassignment.

Footnote 4 By memorandum dated January 24, 1986, the Union wrote to the Respondent as follows: B. That all inspectors selected from San Ysidro for this Temporary Reassignment be selected using the procedure in Article 20, Section number 5. We request a briefing to be addressed of our concerns of the impact upon the safety and morale of the employees. Until negotiations and any related impasse procedures are completed, we ask that you delay any and all implementations until agreement is reached. On February 25, 1986, the Union sent a memorandum to the Respondent which challenged the methods utilized for the selection of additions to the CET. After again requesting a delay in implementation, the Union went on to state as follows: One final point needs to be mentioned. Selection to this special enforcement operation has promotion potential. it appears that an unspecified number of Senior Inspector positions will be assigned to CET. Any serving on CET has an advantage to these positions.

Footnote 5 In this connection the record indicates that subsequent to the 120 day details the Respondent did promote a number of Customs Inspectors to the GS-11 positions in the CET. The selections for promotion were mainly from the employees who had worked the 120 day details.

Footnote 6 Article 41, Section 3 of the contract appears to be a clear waiver by the Union of its rights to bargain on any subject during the life of the agreement. However, Section 3(B) of Article 41, provides as follows: "This subsection does not alter the Employer's right to exercise its management rights as set forth in Article 5, or the Union's right to engage in impact bargaining as set forth in Article 37", entitled Impact Bargaining.

Footnote 7 Article 37, section 9 provides that where there is an "emergency or the 'bona fide' time constraints imposed by higher authority require the employer to act without undue delay, the Employer will implement the proposed change and negotiations may continue on a post-implementation basis."

Footnote 8 Article 37, Section 4 entitled "Impact Bargaining" provides as follows: 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).

Footnote 9 It appears from the parties stated positions, as well as their respective post-hearing briefs, that all parties are in agreement that the foregoing is a correct general statement of the current law.

Footnote 10 Having found that Respondent did not violate the Statute when it failed and refused to bargain with the Union over the temporary reassignment of the Canine Enforcement Officers, I shall recommend that the allegations in the complaint dealing with such reassignment be dismissed.

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