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29 FLRA No. 65

U.S. CUSTOMS SERVICE
(WASHINGTON, D.C.); AND
U.S. CUSTOMS SERVICE
NORTHEAST REGION (BOSTON,
MASSACHUSETTS)

               Respondent

      and

NATIONAL TREASURY EMPLOYEES
UNION

Case Nos. 1-CA-60236
          1-CA-60244

               Charging Party

DECISION AND ORDER

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge. The Charging Party (the Union) filed an opposition to the Respondent's exceptions. The General Counsel filed cross-exceptions and an opposition to the Respondent's exceptions.

The issues in this case are whether the U.S. Customs Service, Washington, D.C. and the U.S. Customs Service Northeast Region, Boston, Massachusetts (Respondent or Agency) committed an unfair labor practice under section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by (1) unilaterally changing the working conditions of bargaining unit employees by renovating the Logan International Airport passenger terminal, without providing the Union with notice and an opportunity to bargain over the impact and implementation of its decision to renovate the terminal (Case No. 1-CA-60236); and (2) unilaterally changing conditions of employment by [PAGE] requiring bargaining unit employees assigned to the passenger terminal to report to the cargo terminal to perform cargo assignment without furnishing the Union with notice of the change and an opportunity to negotiate over the impact and implementation of the change (Case No. 1-CA-60244).

For the reasons discussed below, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over the impact and implementation of its decision to renovate the passenger terminal. We also conclude that the General Counsel failed to prove that the Respondent changed its practice concerning the hours of duty of customs inspectors reassigned from the passenger terminal to the cargo area.

II. Background

This case involves a unit of customs inspectors as-signed to the Logan International Airport at the passenger and cargo terminals and various seaport and tracking terminals in accordance with bi-weekly rotational schedules. Approximately 12-16 full-time customs inspectors are assigned to the passenger terminal during any 2-week period. Four of these inspectors are assigned to the Customs Office at the airport and work varied shifts between the hours of 7:00 a.m. and 12:00 midnight, depending on the specific office assignment. The remaining inspectors are assigned to the passenger terminal and inspect passengers and their baggage arriving from international flights. From October to May these employees work from 10:00 a.m. to 6:00 p.m.; for the remainder of the year, they work from 12:00 noon to 8:00 p.m. An additional 8-11 customs inspectors are assigned to the cargo terminal, which is an appreciable distance from the passenger terminal.

A. Case No. 1-CA-60236

In April 1986, the Massachusetts Port Authority (MassPort) began renovations in the passenger processing section of the airport terminal. Although Customs and MassPort had been discussing proposed renovations in the facility for years, Customs was not advised of the final construction schedule until early April 1986. The renovation of the passenger terminal area consisted solely of a change of the modules used by customs inspectors when they examined the baggage of passengers arriving on international flights. The renovation also involved changes in the Customs office area. [ v29 p2 ]

Before the renovation, each examination module consisted of two conveyor belts with a counter between the belts. Two "primary inspectors" worked each module, each facing the conveyor belt and sharing a computer terminal. Passengers would place their baggage on the conveyor belt which would transport the bags a few feet to the inspector. The inspector could then ask the passenger to open bags for examination, or clear the passenger without examining the bags. If an inspector requested a more thorough examination, or there was a need for privacy, the passenger could be taken to one of six customs search rooms. Two inspectors are required to be present for any search conducted in a search room. After the renovation, the conveyor belts of the old modules were eliminated.

Of the 12-16 full-time inspectors assigned to the passenger terminal, only about half of the inspectors not performing office duties are assigned as primary inspectors. Normally, both before and after the renovation, two inspectors work at each module. The remaining inspectors function as "rovers." At any given time, only two to three of the modules are in use, leaving the remaining modules empty for use by rovers. Rovers are assigned to cover the entire passenger floor between the inspection stations and the baggage claim carousels in order to observe passengers. The role of the rover is to select and identify high risk passengers for possible intensive examination or to expedite the clearance of passengers who would require no further examination or search.

On April 4, 1986, Chief Inspector Holzman met with inspectors to discuss the renovations. The Executive Vice - President of the Union and two Union stewards were present at the meeting. Although notice of the meeting was posted, Holzman did not give the Union any special notice. Holzman described in detail the renovation, including the intended changes to the office area. One of the stewards present at the meeting immediately advised Union President Pacewicz of the anticipated changes. The same day, April 14, Pacewicz hand-delivered a letter to the Agency's District Director, John Linde, requesting impact and implementation bargaining on the renovations. By letter dated April 7, 1986, Linde advised Pacewicz of the Agency's refusal to negotiate, stating that because the Agency did not plan to make any substantial changes which would affect conditions of employment, it was not obligated to bargain on this matter. [ v29 p3 ]

Renovation of the Customs offices began in late June 1986 and was completed in July 1986. Except for temporarily requiring inspectors to go 30 feet from the desk to use the telephone because of a delay in rewiring the telephone system, the renovation did not affect the work of inspectors in the Customs office. See Administrative Law Judge's Decision (ALG Decision) at 12. The object of the renovation of the Customs offices was to improve security and to prevent entry by unauthorized persons.

As to the passenger terminal area, while the inspectors' job duties were not changed by the renovation of that area, removal of the old modules substantially reduced the examination space. Id. Before the renovation, as many as four inspectors could simultaneously perform examinations at each module. The new modules can only accommodate the two primary inspectors, each of whom can examine only one bag at a time.

Inspectors testified that the height of the new modules obstructed a full view of the passenger. Previously, passengers placed their luggage on the conveyor belt. Inspectors could then visually examine the person arriving, look at the luggage and watch passengers' reaction to questions. With the new modules, the inspectors stand behind a 4-foot high counter and all but the upper part of the body, including hand-held items, is blocked from view by the counter and significant body movements cannot be observed. The new examination process is slower and more time-consuming than the conveyor belt system. Several inspectors experienced a significant reduction in the number of seizures made during the construction period of April-August 1986. The number, type and kind of seizures made by inspectors constitute a critical element in the employee performance appraisal system. Baggage carts were placed in the inspection area as part of the renovation, and have created problems with the flow of traffic on the floor. One inspector testified that the congestion resulting from the carts impeded rovers in moving about the area and in observing passengers. See ALJ Decision at 12-13.

B. Case No. 1-CA-60244

Before February 24, 1986, inspectors assigned to the cargo area worked a single shift--8:00 a.m. to 5:00 p.m. Thereafter, a second shift was instituted from 12:00 noon to 8:00 p.m. It is undisputed that before February 1986, the Respondent had reassigned employees from passenger shifts to cargo shifts on an "as needed" basis. See ALJ Decision at 4. Inspectors were usually reassigned to the cargo area [ v29 p4 ] when the cargo supervisor requested assistance from the supervisor of the passenger terminal because there were not enough employees assigned to the cargo area.

Usually inspectors who were sent to the cargo area during the 10:00 a.m. to 6:00 p.m. passenger shift returned to the passenger terminal for the first flight, at about 12:30 p.m., although occasionally an inspector would remain in the cargo area and not return to the passenger terminal that day. Both the cargo and passenger terminal supervisors testified that the inspectors' hours did not change the day they came in at 10:00 a.m. and were sent to the cargo area; but if they were to be assigned to the cargo area for more than 1 day, their hours were changed to the cargo shift. Once the inspectors' hours were changed to the cargo shift, they remained full-time in the cargo area.

The General Counsel asserts as an additional fact that prior to February 24, 1986, when the operating hours of the cargo area were extended from 8:00 a.m. to 8:00 p.m., a reassignment of inspectors from the passenger terminal to the cargo area would involve a reassignment from the passenger shift of 10:00 a.m. to 6:00 p.m. to the cargo shift of 8:00 a.m. to 5:00 p.m.

III. Administrative Law Judge's Decision

A. Renovations to the Customs Office

The Judge found that although the physical makeup of the Customs office was changed, the renovation did not affect the work of customs inspectors or their working conditions. The Judge determined that the renovation created an inconvenience for inspectors because they had to go 30 feet away from their desk to answer the telephone, but noted that this inconvenience was temporary and was scheduled to be corrected by the telephone company. The Judge concluded that the change in conditions of employment as a result of the renovation of the Customs office space, that is, the problem associated with the telephone location, was temporary, minimal in nature, and resulted from circumstances beyond the control of the Agency, namely, the inability of the telephone company to move the telephone when requested by the Agency. The Judge held that under the Authority's decision in Department of Health and Human Services, Social Security Administration, 24 FLRA No. 42 (1986), the change did not give rise to a bargaining obligation. See ALJ Decision at 13-14. [ v29 p5 ]

B. Renovations to the Passenger Terminal

The Judge found that the reconfiguration of the inspection area at the Airport did not change the conditions of employment of customs inspectors, insofar as both primary inspectors and rovers performed exactly the same duties before and after the reconfiguration. Id. at 17. He also found, however, that the reconfiguration (1) caused a huge reduction in the space available for the inspection of baggage at each module; (2) slowed the inspection process; (3) made it more difficult for primary inspectors to observe passengers; (4) caused congestion and impeded performance of inspectional functions by the introduction of baggage carts; and (5) resulted in a significant drop in the seizure rates for inspectors at the passenger terminal.

The Judge concluded that the change in conditions of employment of inspectors at the passenger terminal, as a result of the reconfiguration of the inspection area and the introduction of baggage carts, gave rise to a bargaining obligation. He held that the Union invoked its right to negotiate but the Respondent foreclosed bargaining by its refusal to negotiate, in violation of section 7116(a)(1) and (5) of the Statute.

The Judge stated that in determining whether the re-configuration of the inspection area changed conditions of employment, he gave no weight to "the temporary and transitory (e)ffect on conditions of employment as the result of the construction process" (ALJ Decision at 17), since both the Union's request to negotiate and the consolidated complaint were premised on an asserted change in conditions of employment as the result of changes in the inspection area. The Judge further stated that "(h)ad NTEU sought to bargain about the impact of construction on conditions of employment, I have no doubt that Respondent would have been obligated to bargain(.)" Id. The Judge found, however, that the Union had invoked its right to negotiate over the impact and implementation of the 'major changes to the passenger terminal which include the removal of inspectional belts, and that the complaint only alleged that "'Respondent unilaterally changed the working conditions ... by renovating the passenger terminal ... without providing the Union with notice of its intention to renovate and/or ... an opportunity to negotiate over the impact and implementation of its decision to renovate the passenger terminal." ALJ Decision at 17. [ v29 p6 ]

C. Assignment of Passenger Terminal Inspectors to Cargo Terminal During Passenger Terminal Tours of Duty

The complaint alleged that the Respondent changed conditions of employment by requiring inspectors assigned to the passenger terminal to report to the cargo area. The Judge stated that the record showed, without contradiction, that the change in conditions of employment alleged in the complaint concerning the shift assignments of employees was not a change at all. The Judge stated further that at the hearing the General Counsel argued as a violation that the hours of employees sent from the passenger terminal to the cargo terminal were not changed to the hours of the cargo terminal. NTEU argued as an additional violation that "the Activity never notified the Union nor did it ever bargain ... over this manner of selecting passenger Inspectors ... to work in cargo." NTEU's Brief, p. 14. The Judge found that neither the violation urged by the General Counsel nor the violation urged by NTEU was alleged in the complaint. ALJ Decision at 22-23.

The Judge concluded that since neither the violation urged by the General Counsel nor the additional violation urged by the Union was encompassed by the language of the complaint, he was constrained by the Authority's decision in U.S. Government Printing Office, 23 FLRA No. 6 (1986), to conclude that neither the violation was raised in the complaint. The Judge also concluded that he erred in overruling Respondent's objection to questions concerning changes in hours of work and by permitting litigation of the issue.

The Judge nevertheless found that even if the complaint were deemed sufficiently broad as to include the allegation, the General Counsel had failed to prove by a preponderance of the evidence that the Respondent changed its practice on or after February 24, 1986, with respect to the hours of duty of employees assigned to the passenger terminal when those employees were sent to the cargo area. As to the Union's additional allegation concerning the manner of selection of inspectors, the Judge held that the allegation was not encompassed by the complaint, was not litigated and was raised for the first time in the Union's brief. See ALJ Decision at 23.

IV. Positions of the Parties

In its exceptions, the Respondent argues that the Judge incorrectly held that (1) the renovation of the passenger terminal created a duty to bargain; (2) the Respondent [ v29 p7 ] refused to negotiate the impact of the renovations, in spite of the fact that the Union failed to properly invoke its right to negotiate under the Authority's case law and the parties' agreement; and (3) the Respondent violated the Statute by its refusal to bargain over the impact and implementation of its decision to renovate the passenger terminal. The Union and the General Counsel filed Oppositions to the Respondent's exceptions.

The General Counsel also filed cross-exceptions to the Judge's conclusions that (1) the change in conditions of employment as a result of renovations to the Customs office did not give rise to a bargaining obligation; (2) the temporary and transitory effect on conditions of employment as the result of the construction process should be given no weight in determining whether the reconfiguration of the inspection area changed the conditions of employment of unit employees; (3) the Union did not request negotiations on the impact of the renovation on working conditions during the actual construction process; and (4) there was no allegation in the complaint that the assignment of employees from the passenger terminal to the cargo terminal resulted in a change in employees' hours.

A. Case No. 1-CA-60236

The question to be resolved in this case is whether the Respondent had a duty to bargain over the impact and implementation of MassPort's decision to renovate the passenger terminal. In order to determine whether the change in conditions of employment required bargaining, we will carefully examine the facts and circumstances, placing principal emphasis on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees. Department of Health and Human Services, Social security Administration, 24 FLRA No. 42, slip op. at 5-6. Applying the principles established in Social Security Administration to this case, we find that the renovation of the passenger terminal constituted a change in conditions of employment of unit employees and that the reasonably foreseeable impact of the change gave rise to a bargaining obligation. Therefore, we conclude that the Respondent's refusal to bargain concerning the impact and implementation of the decision to renovate constituted an unfair labor practice. [ v29 p8 ]

The Respondent in this case held a meeting with inspectors to discuss the details of the renovation. Although it failed to officially notify the Union of the plans to renovate, when the Union learned of the intended changes it immediately requested impact and implementation bargaining on the renovations. The Respondent refused to negotiate, stating that it did not plan to make any substantial changes which would affect conditions of employment.

We find that the reasonably foreseeable impact of the planned renovation of the passenger terminal on the affected employees was sufficient to put the Respondent on notice that bargaining was appropriate. The proposed renovation included changes to the Customs office, removal of the conveyor belts used to inspect baggage, the construction of new inspection modules, and the introduction of baggage carts to the Customs inspection area. see ALJ Decision at 9 and Transcript at 70. The construction associated with the renovation was planned in phases in order "to alleviate some of the problems that were bound to happen because of the construction." Transcript at 286. It was therefore reasonably foreseeable that a complete alteration of the customs inspection area, the implementation of a new inspection system, the renovation of the Customs office and the construction process associated with all of the above changes would affect the inspectors' ability to perform their duties. Those reasonably foreseeable effects were sufficient to give rise to a duty to bargain with the Union concerning the impact and implementation of the decision to renovate the Customs office and the inspection area in the passenger terminal. See Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL - CIO, 26 FLRA No. 42 (1987).

We do not rely, as did the Judge, on the actual effects of the renovation on inspectors' conditions of employment to determine whether Respondent was obligated to bargain and the extent of its obligation. Rather, the appropriate inquiry in this case must involve an analysis of the reasonably fore-seeable effect of the change in conditions of employment evident at the time the change was proposed and implemented. See Department of the Air Force, Headquarters, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio and American Federation of Government Employees, Council 214, AFL - CIO, 25 FLRA No. 41 (1987).

We also find, in agreement with the Judge, that the union properly invoked its right to bargain under the terms of the parties' agreement and the Authority's case law. The [ v29 p9 ] Agency's reliance on National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986) (Provision 2) is misplaced. The standard set forth in that case relates to the factors which determine the negotiability of a proposed arrangement for employees adversely affected by the exercise of a management right. See id., slip op. at 8-10. That case does not establish, as the Agency asserts, the only method by which a union invokes its right to bargain over the impact or implementation of a change in conditions of employment. Nor does it require (1) a showing by the Union of how employees will be detrimentally affected by management's actions, (2) a submission of proposals to address the adverse effects and (3) an explanation of how each proposal addresses those effects, to trigger impact and implementation bargaining.

The duty to bargain in good faith under the Statute "applies whenever management changes an established policy or practice pertaining to conditions of employment whether or not the matter is covered by a provision in the existing collective bargaining agreement." Department of Health and Human Services, Social Security Administration, 24 FLRA No. 42 (1986), slip op. at 2. The Respondent was obligated to bargain with the Union concerning the impact and implementation of the renovation in this case when the decision was made to alter the Customs office and reconfigure the inspection area of the Airport. The Union properly invoked its right to bargain under the parties' agreement when it requested bargaining with respect to the impact of that change and was under no obligation to submit written proposals after the Respondent foreclosed negotiations by its refusal to negotiate on the basis that "the changes planned did not affect working conditions." ALJ Decision at 21.

Additionally, we disagree with the Judge's conclusion that the Union's request to bargain did not encompass a request to bargain over "the temporary and transitory (e)ffect ... of the construction process." ALJ Decision at 17. In our view, the Union's general request that the Respondent bargain over the impact and implementation of the decision to renovate the passenger terminal was sufficient to invoke the Union's right to bargain over the reasonably foreseeable effects of the anticipated changes in conditions of employment, including those associated with the construction process.

B. Case No. 1-CA-60244

The record demonstrates that the substance of the unfair labor practice complaint in Case No. 1-CA-60244, as [ v29 p10 ] understood by both parties, was an alleged change in the past practice of rescheduling the hours of duty of inspectors when they were reassigned from the passenger terminal to the cargo terminal. That issue was fully litigated at the hearing and both parties had the opportunity to present evidence and witnesses relevant to their respective positions. However, the Judge ruled in his decision that he should not have permitted litigation of the issue because (1) he was constrained by the Authority's decision in U.S. Government Printing Office, 23 FLRA No. 6 (1986) to conclude that the issue was not encompassed in the complaint and (2) the complaint was never amended to include the allegation. We disagree with the Judge's conclusions for the following reasons.

First, U.S. Government Printing Office does not establish a generally applicable restriction on the ability of an Administrative Law Judge to determine the issues which are encompassed within the allegations of a complaint. The Authority merely held that the complaint in that case did not allege, nor did the parties litigate at the hearing, whether the agency failed to provide notice to the Union of an informal adjustment of an EEO complaint. The record indicated that the basis for both the unfair labor practice charge and the complaint was that the agency violated the Statute by meeting directly with a bargaining unit employee and resolving a grievance without the presence of a union representative. The Authority held that the allegation that the agency failed to provide notice and an opportunity to bargain was not encompassed in the complaint and, therefore, not before the Judge. See id., slip op. at 4.

In this case, the complaint failed to set out a precise statement of the issue involved. However, both parties understood the subject of the dispute and, at the hearing, presented evidence and witnesses relevant to the issue of the dispute. A mere ambiguity in the language of the complaint did not remove the issue from being properly before the Judge where the matter was fully developed in the record before him. See, for example, 22 Combat Support Group (SAC), March Air Force Base, California, 25 FLRA No. 20 (1987); and 162nd Tactical Fighter Group, Arizona National Guard, Tucson, Arizona, 21 FLRA No. 90 (1986). Compare Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 25 FLRA No. 3 (1987); and U.S. Department of Commerce, Bureau of the Census, 24 FLRA No. 64 1986). We find that the complaint was sufficient in breadth and clarity to constitute a basis for the Judge's findings. [ v29 p11 ]

Since both parties (1) Understood the substance of the dispute concerning the reassignment of customs inspectors from the passenger terminal to the cargo area, and (2) fully litigated that issue at the hearing, the matter was properly before the Judge. Consequently, we reject the Judge's determination that the issue was not encompassed in the complaint. We adopt the Judge's alternative ruling that "even if the complaint were deemed sufficiently broad as to include the allegation, ... I nevertheless find that the General Counsel failed to prove by the preponderance of the evidence received that Respondent changed its practice ... with respect to the hours of duty of employees assigned to the passenger terminal when sent to the cargo area." ALJ Decision at 23. The Judge found that there was not sufficient probative evidence that there was, in fact, a change of the Respondent's practice and credited the testimony of Inspectors McGrath, Holzman, Tilton and Haynes that the Agency did not change its practice. See id. at 23-25.

Inasmuch as we have found that the issue litigated at the hearing was encompassed within the complaint, we reject the Judge's ruling that the parties failed to amend the complaint to encompass that issue. Similarly, we find that, under the circumstances in this case, the parties were not obligated to amend the complaint to include that allegation.

VI. Summary

We conclude, in agreement with the Judge, that the Respondent violated section 7116(a) (1) and (5) of the Statute by refusing to negotiate over the impact and implementation of the decision to renovate the passenger terminal at Logan International Airport.

We disagree, however, with the Judge's reasoning and conclusions to the extent that he relied on the ultimate effects of the renovation on conditions of employment to determine the extent of the Respondent's duty to bargain. We conclude that the Respondent had a duty to bargain over the impact and implementation of the decision to renovate the airport because the reasonably foreseeable effects of that decision on employees' conditions of employment were substantial and were evident at the time the renovation was proposed and implemented. We also find that the Respondent's obligation to bargain extended to all aspects of the renovation, including the effects of proposed changes to the Customs office and changes associated with the various phases of the anticipated construction. [ v29 p12 ]

We conclude, further, that the issue concerning the hours of duty of customs inspectors reassigned from the passenger terminal to the cargo area was properly before the Judge and properly litigated at the hearing. We reject the Judge's findings to the contrary and adopt his alternative ruling that the General Counsel failed to prove by a preponderance of the evidence that the Respondent changed its practice.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, it is ordered that the U.S. Customs Service, Northeast Region, Boston, Massachusetts, shall:

1. Cease and desist from:

(a) Refusing to negotiate in good faith with the National Treasury Employees Union, the exclusive representative of its employees, concerning the procedures to be observed in implementing the decision to renovate and conduct construction in the passenger terminal at Logan International Airport, including the introduction of baggage carts and concerning appropriate arrangements for employees adversely affected by such renovation and construction of the passenger terminal at Logan International Airport, including the introduction of baggage carts.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request, negotiate in good faith with the National Treasury Employees Union, the exclusive representative of its employees, concerning the procedures to be observed, and appropriate arrangements for employees adversely affected by, the decision to renovate and conduct construction in the passenger terminal at Logan International Airport, including the introduction of baggage carts.

(b) Post at its facilities at Logan International Airport copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such form, they shall be signed by the District [ v29 p 13 ] Director and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, Room 1017, 10 Causeway Street, Boston, Massachusetts 02222-1046, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

The allegations in Case No. 1-CA-60244 are dismissed.

Issued, Washington, D.C., October 15, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

LABOR RELATIONS AUTHORITY [ v29 p14 ]

                       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 refuse to negotiate in good faith with the National Treasury Employees Union, the exclusive representative of our employees, concerning the procedures to be observed, and appropriate arrangements for employees adversely affected by, the decision to renovate and conduct construction in the passenger terminal at Logan International Airport, including the decision to introduce baggage carts.

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, upon request, negotiate in good faith with the National Treasury Employees Union, the exclusive representative of our employees, concerning the procedures to be observed, and appropriate arrangements for employees adversely affected by the decision to renovate and conduct construction in the passenger terminal at Logan International Airport, including the introduction of baggage carts.

                      _______________________________________
                               (Agency or Activity)

Dated:             By:_______________________________________
                      District Director, U.S. customs service
                      Northeast Region, Boston, Massachusetts

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region 1, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046 and whose telephone number is: (617) 565-7280. [PAGE]

U.S. CUSTOMS SERVICE
(WASHINGTON, D.C.); and
U.S. CUSTOMS SERVICE
NORTHEAST REGION (BOSTON,
MASSACHUSETTS)

             Respondent.

     and

NATIONAL TREASURY EMPLOYEES
UNION

Case Nos.  1   : 1-CA-60236
                 1-CA-60244

             Charging Party

Christopher Doherty, Esquire
Anna R. Tretter, Esquire
   For the Respondent

Philip J. Kellett, Esquire
   For the Charging party

Carol Waller Pope, Esquire
Daniel F. Sutton, Esquire
   For the General counsel

Before: WILLIAM B. DEVANEY
        Administrative Law Judge

DECISION

Statement of the case

This proceeding, under the Federal service Labor - Management Relations Statute, Chapter 71 of Title 5 of tile [PAGE] United States Code, 5 U.S.C. 7101, et. seq., 2 and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1 et seq., concerns: (a) whether Respondent unilaterally changed working conditions of bargaining unit employees by renovating the passenger terminal at Logan International Airport without providing the Union with notice of its intention to renovate the passenger terminal and/or without providing the union with an opportunity to negotiate over the impact and implementation of its decision to renovate the passenger terminal (Case No. 1-CA-60236); and (b) whether Respondent, on or about February 24, 1986, unilaterally changed conditions of employment by requiring bargaining unit employees assigned to work on the 10:00 a.m. to 6:00 p.m. shift at the Logan International Airport passenger terminal, to report to the cargo area for the purpose of performing cargo assignment without furnishing the Union with notice of the change and/or an opportunity to negotiate over the impact and implementation of the change (Case No. 1-CA-60244). Case No. 1-CA-60236 was initiated by a charge filed on April 15, 1986 (G.C. Exh. 1-F) and case No. 1-CA-60244 was initiated by a charge filed on April 25, 1986 (G.C. Exh. 1-C). An Order Consolidating cases, Complaint and Notice of Hearing issued in Case Nos. 1-CA-60234 and 1-CA-60244 on June 24, 1986 (G.C. Exh. 1-E) arid set the hearing for August 20, 1986. On July 14, 1986, a Further Order consolidating Cases, Amended Complaint and Further Notice of Hearing issued in case Nos. 1-CA-60234, 1-CA-60236 and 1-CA-60244; and, again, set the hearing for August 20, 1986 (G.C. Exh. 1-J). By order dated August 8, 1986 (G.C. Exh. I - L), the hearing was rescheduled for August 27, 1986, pursuant to which a hearing was duly held on August 27 and 28, 1986, in Boston, Massachusetts, before the undersigned.

All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues presented, to examine and cross-examine witnesses, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, September 29, 1986, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, initially on motion of the General Counsel, to which the other parties did not object, for good cause shown, [ v29 p2 ] to October 31, 1986, and thereafter, again on motion of the General Counsel, to which the other parties did not object# for good cause shown, to November 14, 1986. Respondent, charging Party and General Counsel each timely mailed an excellent brief, received on, or before, November 20, 1986, which have been carefully considered. upon the basis of the entire record, 3 including my observation of the witnesses and their demeanor, I make the following findings and conclusions:

Findings

1. The National Treasury Employees Union (NTEU) is the exclusive representative of a nationwide unit of non-professional employees of the u.s. Customs service including customs inspectors in the Northeast Region, Boston, Massachusetts (G.C. Exh. 5).

2. Customs inspectors employed at Boston, Massachusetts, are assigned to various posts of duty, including the Logan international Airport, at both the passenger terminal and cargo terminal, and various seaport and trucking terminals, in accordance with biweekly rotational schedules (Tr. 27, 363). There are about forty-eight rotational positions to which employees are assigned for a two week period (Tr. 27); however, the only rotational assignments material herein are assignments to the Airport passenger and cargo terminals.

3. There are a total of approximately 12-16 full-time customs inspectors assigned to the passenger terminal, 4 four of whom perform various office functions during any two week [ v29 p3 ] rotational period. inspectors assigned to the Customs office work 7:00 a.m. - 3:00 p.m., 8:00 a.m. - 5:00 p.m. (TECS officer), 3 p.m. - 11:00 p.m., and 4:00 p.m. - 12:00 p.m., depending on their specific office assignment (Tr. 29, 313). The remaining 8 - 12 inspectors assigned to the passenger terminal perform duties involving the inspection of passengers and their baggage arriving from international flights (Tr. 30). From sometime in October to about may these employees work from 10:00 a.m. to 6:00 p.m.; and from about May to sometime in October (the summer schedule) work from 12 noon to 8:00 p.m. (Tr. 191).

4. There are approximately 8-11 customs inspectors assigned to the cargo area (Delta Cargo facility) which is on the other side of the runway area (Tr. 112) an appreciable distance from the passenger terminal, estimated by Mr. Daniel Doherty and by chief Inspector John Holzman to be about one mile (Tr. 184, 362). Prior to February 24, 1986, there was a single shift at cargo; 8:00 a.m. to 5:00 p.m. On February 24, 1986. a second shift was instituted at cargo, 12:00 noon to 8:00 p.m. (Tr. 429). At that time, February 24, 1986, there were eleven inspectors assigned to cargo and six remained on the 8:00 a.m. - 5:00 p.m. shift while five were placed on the 12:00 - 8:00 p.m. shift (Tr. 430, 432). When assigned to cargo, inspectors work either in tile Document Analysis Unit (DAU) or in the customs Manifest Unit (CMU).

5. As General Counsel states, "It is undisputed that prior to February, 1986, Respondent had reassigned employees from passenger shifts to cargo shifts on an as needed basis. (Tr. 118, 268, 419, 428, 454)" (General counsel's Brief, p. 4). Indeed, Chief inspector Holzman testified that this practice was going on when he was an inspector in 1967 (Tr. 312). The Cargo Supervisor, Senior Customs Inspector Donald Tilton, testified that for the two and one half years he has been the cargo supervisor he had made requests to the supervisor of the passenger terminal for assistance when he did not have enough manpower to do the job in the cargo area because of the absence of assigned inspectors on sick, annual or emergency leave (Tr. 419); that the Passenger Supervisor, senior customs Inspector John Haynes, would " ... send me what I needed, if he could, if he had enough people" (Tr. 421); that Mr. Haynes had always responded to his request for inspectors from the passenger terminal (Tr. 421); and that the passenger terminal inspectors would remain at cargo until Mr. Haynes called him (Tilton) and told him he needed them back at the passenger terminal for a flight (Tr. 422). Mr. Tilton testified that if he knew in advance that an assigned inspector was going [ v29 p4 ] to be absent he would call Mr. Haynes in advance and get a replacement (Tr. 424) who would, as Mr. James McGrath testified, "... report to work at 8 o'clock in the morning" (Tr. 118); but if Mr. Tilton did not know of the absence of an assigned inspector in advance, then he would call Mr. Haynes that morning and Mr. Haynes would send an inspector to cargo when the shift came in at 10 o'clock (Tr. 424, 435-437). Mr. Haynes testified that, for the most part, inspectors sent to cargo during the 10-6 shift returned to the passenger terminal for the first flight, at about 12:30 p.m. to 1:00 p.m. (Tr. 439-440), although on occasion an inspector would remain at cargo and not return to the passenger terminal that day. Both Mr. Tilton and Mr. Haynes testified that the inspectors' hours did not change the day they came in at 10:00 a.m. and were sent to cargo; but if they were to be assigned to cargo for longer than that one day, their hours were changed to the cargo hours (Tr. 428, 433) and office their hours were change to the cargo hours they remained full time in cargo (Tr. 439-440).

General Counsel disagrees and asserts that prior to February 24, 1986, when the hours of cargo were extended to 8:00 a.m., to 8:00 p.m., ... such a reassignment to cargo would involve a reassignment from the passenger shift of 10:00 a.m. - 6:00 p.m. to the cargo shift of 8:00 a.m. -5:00 p.m." (General counsel's Brief, p.4). However, Mr. McGrath, steward, testified, in part, as follows:

"Q. Prior to February of 1986, to your knowledge, did any employees go from the passenger terminal to the cargo terminal for the performance of duties during part of their passenger shift?

"A. Yes, they did. They would be -- if there was a backlog of -- if there was a manpower shortage down in the cargo area, they would request employees to volunteer to change their shift to 8 to 5. They would report to cargo in the morning and after lunch work the passenger terminal is the evening." (Tr. 117).

Although Mr. McGrath thereafter testified,

"A. Yes they would assume the cargo shift for that day. They would -- instead of working 10 to 6, they would report to work at 8 o'clock in the morning" (Tr. 118). [ v29 p5 ] his later qualification simply does not address assignment to cargo during a passenger terminal shift, i.e., when an inspector has reported for duty at 10:00 a.m. and is sent that day to cargo. moreover, inspector McGrath's testimony on cross-examination plainly shows that passenger inspectors were, in fact, sent to cargo during their passenger shift both before and after February, 1986 (Tr. 163-164). Obviously, if the inspector reported for work at 10:00 a.m. it would have been quite impossible for him to have worked at 8:00 a.m. that day, nor does the record show either that: (a) he could have worked, until 6:00 p.m. in cargo to complete his shift that day, prior to extension of the hours of cargo from 8:00 a.m. to 8:00 p.m. (Cf., Tr. 184-186); or (b) he would, or could, have been paid for 8 hours if he worked only until 5:00 p.m. after starting at 10:00 a.m. that day. Rather, as Mr. McGrath stated earlier, "They would report to cargo in the morning and after lunch work in the passenger terminal in the evening", which clearly meant that, on the day of assignment to cargo, having begun the 10-6 shift at the passenger terminal, they returned to the passenger terminal to complete their 10-6 shift that day. There is no dispute that the inspector's hours were changed to the hours for cargo if the assignment to cargo were for more than one day.

Mr. Daniel Doherty, Executive Vice President of Chapter 133, testified, in part, as follows:

"A. when I first came to the Port of Boston in January -- late December of '83, January of '84, for a short period of time, several months, I was told to report oil various days to a cargo facility after I reported to work at the passenger shift.

"Q. When that occurred several years ago, did your shift change?

"A. The shift at the time was 10 to 6 at the passenger terminal. On a particular day that I was sent down to the cargo area, my shift did not change. (Tr. 182)." 5 [ v29 p6 ]

The cargo supervisor does not keep a record of the hours that passenger terminal inspectors work in the cargo area so long as they remain assigned to the passenger terminal (Tr. 425, 440); nor does the passenger supervisor maintain a record of the hours that passenger terminal inspectors work in cargo while assigned to the passenger terminal shift, beyond placement of the word "cargo" in parenthesis next to the inspector's name on his attendance sheet to show that the inspector was sent to cargo (Tr. 441). Respondent's Exhibit 4, which consists of: (a) daily overtime earnings; (b) assignment sheet; (c) attendance sheet; and (d) overtime jobs, while it does show that inspectors assigned to the 10-6 passenger terminal shift worked at cargo, does not show whether they worked at cargo during some part of their 10-6 passenger shift and, accordingly, Respondent's Exhibit 4 is accorded no probative value for this purpose. [ v29 p7 ]

6. In April, 1986, the Massachusetts Port Authority (MassPort) began certain renovations in the passenger processing section of the terminal. Although Customs and MassPort had been discussing proposed renovations in this facility for years, customs was not given final plans for the renovation until December, 1985, and was not advised of the construction schedule until early April, 1986 (Tr. 283-285). The renovation of the passenger terminal area consisted solely of a change of the modules used by Customs inspectors when examining the baggage of passengers arriving on international flights. Prior to the renovations, each examination module consisted of a square "A" shaped module, of which a conveyor belt formed the long sides, with a counter between the two conveyor belts on which a computer terminal (Treasury Enforcement Computers, referred to as "TECS") was located and the end was closed by another counter which stretched across the two conveyor belts and was about four feet long (Tr. 52). Each conveyor belt operated on an incline allowing passengers to place their luggage on the belt at a low level and the belt moved the luggage at a slight incline to a height of about three feet for examination by the inspectors (Tr. 50-51). Each conveyor belt was approximately twenty feet long (Tr. 49, 51). Transfer belts, both before and after the renovation, are located to the rear of the inspectional modules and are used for the transfer of baggage of inter-national passengers who are continuing their air travel to another city (Tr. 215, 282).

Two inspectors, called primary inspectors, worked each module, each facing the conveyor belt, and the two inspectors shared the one TECS. There were eight of these modules (16 conveyor belts), four modules being located on each side of the central escalator/stairwell which provides access to the area for arriving passengers after they clear immigration on the upper floor (G.C. Exh. 2, Tr. 34). The inspectional system worked much as a checkout counter at a supermarket, except that the conveyor belts here operated on an incline and were longer. Arriving passengers would obtain their luggage from the baggage carousels at the rear of the terminal and carry their bags, or have them carried by sky caps, to one of the inspectional modules. Passengers were required to stand in line, beyond a yellow line on the terminal floor, and await their turn. When called by the Customs inspector, the passenger would move forward and place his bags on the conveyor belt which would transport the bags a few feet to the inspector. The inspector could then request that the passenger open any, or all, bags for examination, or simply clear the passenger without any actual examination of the bags. If a more thorough examination were [ v29 p8 ] required, or a need for privacy arose, the passenger could be taken to one of the six customs search rooms. Two inspectors were, and are, required to be present for any search conducted in a search room (Tr. 57-58). During peak travel months and at peak hours, as many as 4 to 5 planeloads of passengers can arrive for clearance at, or about, the same time (Tr. 219). Inspectors were not required to lift any luggage to be examined (Tr. 34-35, 41-42, 56-57, 134, 288).

The renovations eliminated the conveyor belts of the old modules. The new modules are enclosed squares of about 10 feet which are canted at a 300 angle to the walls of the customs Hall (the old modules had been perpendicular). Each new module contains two TECS machines, on each side of the front of the module. At this point, the module is about 4 and 1/2 feet high. on each side of the module there is a counter, approximately 2 and 1/2 feet by 2 feet and 4 feet high (Tr. 82, 87) for document review (G.c. Exh. 3, Tr. 82), and at the rear of each module is a steel examination table 2 feet by 10 feet and about 2 feet high (Tr. 87). There are stainless steel rails, for traffic control, opposite the examination tables, between each pair of modules (e.g., between modules F and G and I and J (G.C. Exh. 3)) and to the right side of module G and the left side of module I (G.C. Exh. 3 - direction from the front of the modules) (four identical modules are located on the other side of the central escalator/stairwell). In addition, some 250 luggage carts, known as "smarte carts", were introduced in connection with the renovations. Initially, "smarte carts' were located to the left of module I. The date of their placement was not shown but appears to have been in April, 1986 (and in a similar manner with respect to the modules on the other side of the central escalator/stairwell), but Chief Inspector Holzman subsequently had them removed (Tr. 287), indeed he testified that he requested their removal the second day they were there but their removal was not achieved until the first or second week of August, 1986 (Tr. 378). The carts are owned by smarte Carts (Tr. 288) and passengers who wish to use them pay a dollar rental fee (Tr. 245). Inspectors have nothing to do with the carts and do not remove luggage from the carts or return luggage to the carts (Tr. 84).

7. On April 4, 1986, Chief Inspector Holzman held a meeting with inspectors assigned to the airport to discuss the renovations. In attendance were: Mr. Daniel Doherty, Executive Vice President; Mr. James McGrath, Steward; and Ms. Joan Tremblay, Steward (Tr. 66-68, 70, 152-153, 306-307). Although notice of the meeting was posted (Tr. 306), Mr. Holzman did not give the union, per se, notice of the [ v29 p9 ] meeting (Tr. 265). During the meeting, Mr. Holzman, using a blueprint, described in detail the renovation, including the intended changes in the office area (discussed hereinafter) (Tr. 66-68, 70, 152-153, 306-307). The initial work did not begin until a week later (on or after April 11, 1986) and involved only electrical work underneath the floor (Tr. 308). The construction on the inspectional modules did not begin until on, or after, April 21, 1986 (Tr. 309). Immediately, after the meeting of April 4, Ms. Tremblay called President Pacewicz and advised him that there were going to be some changes (Tr. 264) and on the same day, April 4, 1986, Mr. Pacewicz hand delivered to Mr. John Linde, District Director, a letter requesting impact arid implementation negotiations of the renovations. Mr. Pacewicz' letter stated as follows:

"Reference is made to the meeting held on April 4, 1986 at Logan Airport concerning major changes at the passenger terminal which include the removal of the inspectional belts.

"N.T.E.U., Chapter 133 invokes its right to negotiate over the impact and implementation of this change in working conditions.

"N.T.E.U., Chapter 133 requests that this change be held in abeyance until negotiations have been completed and agreement has been reached.

"N.T.E.U., Chapter 133 requests a briefing concerning this change in working conditions. Please contact the undersigned to establish this briefing." (G.c. Exh. 6).

By letter dated April 7, 1986, District Director Linde advised Mr. Pacewicz of its refusal to negotiate, stating, in part, as follows:

"We do not plan to make any substantial changes to our inspection facility which would effect (sic) working conditions; therefore, we feel no obligation to negotiate this matter." (G.c. Exh. 7).

8. of the 12-16 full time inspectors assigned to the passenger terminal, as noted above, four are assigned to office functions; two inspectors, both before and after the [ v29 p10 ] renovation ordinarily man each module. under normal circumstances, only about half of the inspectors not performing office duties are assigned as primary inspectors on modules. The remaining inspectors (4 to 6) function as rovers (Tr. 60). Thus, at any given time, only two to three of the modules are in se, leaving the remaining modules empty for use by rover. 6 Rovers are assigned to the floor and cover the entire passenger floor between the inspection stations and the baggage claim carousels observing passengers (Tr. 32, 193, 194). Rovers are further classified as either high risk or low risk (Tr. - 31). The role of the high risk rover is to identify an 9 select high risk passengers for possible intensive examination (Tr. 32). The role of the low risk rover is to expedite the clearance of passengers that would require no further examination or search (Tr. 68). once identified, the low risk rover would intercept that passenger as he claimed his bags, or while he is standing in line at one of the inspectional stations, conduct an inter-view and if satisfied release the passenger from the floor (Tr. 68). If either a low or a high risk rover makes a determination to examine any of the passenger's luggage, the rover would take the passenger to the rear of one of the inspectional stations to conduct the examination (Tr. 59), and/or to one of the search rooms if a more intensive examination were deemed necessary.

There were, and are, six search rooms which were not changed by the renovations; however, during the reconstruction of the inspectional station, which lasted 2 and 1/2 months, two of the search rooms were unavailable to customs as one was used for storage of construction tools and supplies and the other was used by the architect (Tr. 78). At the time of the hearing (August 27-28) one search room was still unavailable to Customs (Tr. 78, 309).

9. In late June, 1986, MassPort began renovation of the Customs offices and this work was completed in July, 1986. The safe was relocated to what had been a supply office; Entry and clearance (E&C) (also referred to as "Export Control" (Tr. 297)) moved to where the safe had been (Compare Res. Exh. 2 and 3, Tr. 291-304); and a sliding glass window [ v29 p11 ] was installed in the relocated E&C office to permit the public to pass through documents to inspectors rather than entering the office as had been required previously (Tr. 229). The telephone, because of delay in relocating the telephone system wiring, is now about 30 feet from the relocated E&C desk; however, this is a temporary condition and the telephone company has promised to act on customs, repeated requests, initiated at least two weeks before the desk was moved, very shortly (Tr. 310). Except for temporarily having to go from the desk to answer the telephone, the renovation did not affect the work of inspectors (Tr. 305-306). The documents now received by inspectors at the window are the same documents that previously would have been presented after entry into the office. The object of these renovations was to improve security and to prevent entry by unauthorized persons.

10. While the inspectors' job duties were not changed by the renovations of the passenger terminal area, there is no dispute that removal of the conveyor belts substantially reduced the examination space from about 44 feet per module to about 10 feet per module. Prior to the renovations, as many as four inspectors could simultaneously perform examinations at each module (Tr. 54, 108), i.e., two inspectors (rovers or Agriculture inspectors) could perform examinations on the inspectional belts or at the rear table, in addition to the two primary inspectors; but each new module, with only 10 feet of inspectional space shared by two primary inspectors, can accommodate only the two primary inspectors each of whom can examine only one bag et a time (Tr. 91, 145, 107). while not all modules are in use by primary inspectors at any given time (see n. 6, supra) and that not less than 2 modules, and perhaps as many as 6 modules, are available for use of rovers and Agriculture inspectors at any given time, Mr. Holzman has requested installation of two additional examination tables for use by Agriculture inspectors (Tr. 379). Inspector McGrath testified that the height of the new modules (about four feet or four feet six inches at the TECS machine) obstructed a full view of the passenger (Tr. 93, 94). with the prior arrangement, passengers placed all their luggage on the conveyor belt (Tr. 92), inspectors could visually examine the person arriving, could look at the luggage and watch their reaction to questions (Tr. 93); but with the new modules, the inspector stands 2 feet away, behind a 4 foot high counter and all but the upper part of the body, including hand held items, is blocked from view by the counter and significant body movements can not be observed (Tr. 93, 94). With the new module system, the passenger, after an oral examination, may be asked to take [ v29 p12 ] his or her luggage to the rear of the module for examinations introduction of luggage carts in April, 1986, has meant that the luggage, if the passenger uses a cart, remains on the cart. if the inspector asks the passenger to take the luggage to the rear of the module, the passenger must wheel the cart to the rear examination table and remove the items, one by one, from the cart to the table, which is slower and more time consuming and, unless requested, all of the luggage is not removed from the cart, whereas, with the conveyor belts, all of each passenger's luggage was on the belt for ready access for examination if desired. Whether, during the construction period, fewer bags were examined or inspections were less thorough as the result of management instructions to "move people faster" (G.C. Exh. 8), several inspectors experienced a significant reduction in the number of seizures made during the period of April-August, 1986 (Tr. 102, 213-214, 221-222). The number, type and kind of seizures made constitutes a critical element in the Employee Performance Appraisal (EPAS) (G.C. Exh. 4, Tr. 100, 171). The majority of seizures are made at the passenger terminal (Tr. 102). The number and location of luggage carts, added as part of the renovations, have created problems with the flow of traffic on the floor. Inspector Doherty testified that congestion resulting from the carts impeded rovers in moving about the area and in observing passengers (Tr. 199-204, 207). Chief inspector Holzman recognized that carts were creating congestion as, in August, 1986, he had the number of carts reduced and the remaining carts relocated (Tr. 287-288).

Conclusions

A. Renovations to the Customs Office.

Except for having to go from the desk by the sliding glass window to answer the telephone which is located about 30 feet away, the renovation of the customs office, although the physical makeup of the office has changed, did not affect the work of inspectors or their working conditions. Indeed, Mr. Doherty stated, "The duties that I'm doing ... are the same duties that I was doing prior to this renovation" (Tr. 229). That having to go across the room to answer the telephone, perhaps as many as 25 times per day, is an obvious inconvenience; but this is a temporary inconvenience which shortly will be corrected by the telephone company. The record shows that Respondent requested that the telephone be moved at least two weeks before the desk was moved and has made repeated requests to the telephone company thereafter and the telephone company has promised to act very shortly. [ v29 p13 ]

In Department of Health and Human Services, social security Administration, 24 FLRA NO. 42, 24 FLRA 403 (1986), the Authority reassessed the de minimis standard and stated, in part, as follows:

"... In order to determine whether a change in conditions of employment requires bargaining in this and future cases, the pertinent facts and circumstances presented in each case will be carefully examined. In examining the record, we will place principal emphasis on such general areas of consideration as lie nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employees. Equitable bargaining unit employees. Equitable considerations will also be taken into account in balancing the various interests involved., (24 FLRA at 407-408) (Emphasis supplied).

The change of conditions of employment as the result of renovations to the Customs office, by virtue of the telephone location, was temporary, was minimal in nature, and had resulted from circumstances beyond the control of Respondent, namely, the inability of the telephone company to move the telephone when requested by Respondent. The telephone company has promised to act very shortly. Under the circumstances, the change did not give rise to a bargaining obligation.

B. Renovation to the passenger terminal.

General counsel asserts that impact on working conditions created by the actual construction work must be considered, "... in determining the extent of the impact resulting from the renovation., (General counsel's Brief, p. 19). While impact on working conditions during construction may be a proper subject for negotiation, NTEU did not request such negotiations (G.C. Exh. 6). I do not agree, as General Counsel appears to contend, that "... increased congestion, chaos and noise, during construction constitutes impact on working conditions of the completed renovations. Nevertheless, as the testimony arid evidence concerning the impact of the renovations reflected the result of the change, from the old modular system with conveyor belts to the new modular system without conveyor belts, as the change [ v29 p14 ] occurred, I recognize that some of the impact attributed to the completed change, in reality may be attributable to transitory conditions during implementation of the change.

While it is unquestioned that substitution of the new modules for the old drastically reduced the amount of examination space - from 44 feet per module to 10 feet per module - there is total disagreement between Respondent, on the one hand, and General counsel and NTEU, on the other hand, as to whether conditions of employment of inspectors were affected. Respondent asserts that, "The General Counsel offered testimony from four Customs Inspectors regarding the effect the change from the conveyor belts to the counter modules had on the examination process. However, this testimony only underscored the lack of any real impact on the Customs Inspectors, themselves." (Respondent's Brief, p. 8). NTEU asserts 7 "... their (sic) will be a long term impact upon Inspectors' ability to perform inspections and make seizures as a consequence of the design changes to the inspection modules brought about by the renovation work. Again, the uncontradicted testimony from the General Counsel's witnesses demonstrates that the impaired ability to visually observe passengers and the reduction of space available to perform luggage searches will demonstrably and adversely affect their ability (sic) perform inspectional duties and make seizures." (NTEU Brief, p. 10). [ v29 p15 ]

General Counsel similarly asserts that, "... Examination Space was substantially reduced and this resulted in fewer seizures. There is sufficient testimony of record to support a conclusion that inspectors were unable to perform thorough examinations of passengers and/or baggage due to congestion and reduced examination space (TR 76, 77, 89, 207).(FOOTNOTE NO. 19)

(FOOTNOTE NO. 19) Inspectors can not always detain the passenger to await examination space at a work station because inspectors operate with time considerations in that they are expected to process a rate of 30 passengers per half hour. (TR 107). To suggest that they simply take the passenger to a secondary search room is not always a viable alternative because it means that an inspection that formerly took one inspector to complete now requires two inspectors because inspectors are instructed to not go into search rooms alone. (TR 57). moreover, as backlogs in passenger processing develop, supervisors instruct inspectors to expedite the processing by not inspecting the passengers. (G.C. Ex. 8; TR 208).

In addition, the angular position and size of the module creates difficulties for inspectors because it restricts their ability to observe the passenger, his mannerisms and his baggage while conducting the primary investigation. (TR 94, 107-108) ... in addition, the introduction of luggage carts have caused considerable congestion that has affected the roving inspector in the performance of his duties (TR 1991 246)." (General Counsel's Brief, p. 20).

Although I am aware that there was testimony that the change from the old modules to the new modules resulted in passengers not forming lines and remaining behind the lines painted on the floor, there is nothing in the change of configuration of the modules that would show, or indicate, why passengers would be more or less inclined to form queues with one configuration than the other or more or less constrained to observe the painted lines with one configuration than the other. It was not asserted that the painted lines were obscured in any manner; or that there was any change in the signs instructing passengers to remain behind the painted lines, e.g., the passengers ability to understand [ v29 p16 ] the meaning of signs in English was neither greater nor less because of the change in configuration of the modules; and there was no assertion that painted lines did not bear precisely the same allignment vis-a-vis the modules before and after the renovation. Consequently, I can not discern any basis for finding that the change in the configuration of the modules caused any impact on conditions of employment of inspectors as the result of passenger congestion at the inspection modules beyond that which resulted from the construction process. The record does show that with "dummy walls" closing off portions of the inspectional area, with construction workers in the area, and with reduced space due to construction there was increased congestion during the construction stage which Respondent fully anticipated (G.C. Exh. 8). By like token, the record shows that during construction there were times when the computer was inoperative and that there were times when the alarm system was inoperative. Had NTEU sought to bargain about the impact of construction on conditions of employment, I have no doubt that Respondent would have been obligated to bargain; but President Pacewicz specifically referred to "... major changes at the passenger terminal which include the removal of the inspectional belts. N.T.E.U., Chapter 133 invokes its right to negotiate over the impact and implementation of this change in working conditions" (G.C. Exh. 6) and Paragraph 8(e) of the Consolidated Complaint (G.C. Exh. 1(H)) alleges that "... Respondent unilaterally changed the working conditions of bargaining unit employees by renovating the passenger terminal ... without providing the Union with notice of its intention to renovate ... and/or without providing the union with an opportunity to negotiate over the impact and implementation of its decision to renovate the passenger terminal." Accordingly, since both the request of NTEU to negotiate and the consolidated complaint are premised on an asserted change in conditions of employment as the result of the reconfiguration of inspectional modules, the temporary and transitory affect on conditions of employment as the result of the construction process are given no weight in determining whether the reconfiguration of inspectional modules changed conditions is of employment of bargaining unit members.

Respondent is certainly correct in one sense that the reconfiguration of the inspectional modules did not change the conditions of employment of inspectors one iota. Both primary inspectors and rovers performed exactly the same duties before and after the reconfiguration. There were eight inspectional modules before the reconfiguration and there were eight inspectional modules after the reconfiguration [ v29 p17 ] Inspectors did not handle the baggage before the reconfiguration and they do not handle the baggage after the reconfiguration. Nevertheless, the reconfiguration did cause a huge reduction in the space available for the inspection of baggage at each module - from 44 feet to 10 feet. with only 10 feet of space available for baggage inspection at each module, there is inspectional space only for the two primary inspectors normally assigned to a module, and, for the two primary inspectors, not enough room for all bags of many, perhaps most, passengers to be placed on the counter, by the passenger, at one time. For the passenger to lift one bag to the counter for inspection, to remove it and lift the next, etc., obviously is slower than having all baggage loaded on the belt and moving to the inspector. while performance appraisal is based on the number of seizures (G.C. Exh. 4) and not the number of inspections, there are time constraints in that inspectors are expected to process passengers at a rate of 30 per half hour (Tr. 107, 139).

The record shows that the new modules by their box-like form make it more difficult for primary inspectors to observe passengers and their baggage while conducting the primary investigation. While the record is clear that not all inspectional modules are in use by primary inspectors at any given time, the record does not show whether "free" modules are kept available on both sides of the center escalator/ stairwell and, to the extent that modules are not kept free for use of rovers on each side of the dividing escalator/ stairwell, rovers may have to take passengers some distance to an open inspectional module which also imposes a new time factor for rovers. The record shows that, because of the lack of inspectional space, agriculture inspectors requested additional inspectional space for their use. In addition, the record shows that the introduction of Smarte Carts caused both congestion and impeded performance of inspectional functions so much so that chief inspector Holzman had the number of carts reduced by half and their location changed; however, although the chief inspector had sought this action the second day after they were introduced (presumably in April, 1986, Tr. 84-85), action was not taken until the first or second week of August, 1986 (Tr. 378).

That the change of the inspectional modules resulted in a substantial impact on seizures is firmly shown by the uncontradicted testimony of inspector McGrath who works almost exclusively at the passenger terminal and who testified that for the six month period prior to April, 1986, he had 40 seizures and that for the five months beginning [ v29 p18 ] with April, 1986, to the date of the hearing (August 27, 1986) he had only two seizures. inspector Doherty also testified that since April, 1986, the number of seizures he had made dropped dramatically (Tr. 221). Respondent asserts, inter alia, that "... the periods of time being compared are so dis-proportionate as to make the comparison valueless . . " and that ". . . at the time of the hearing only four months had passed since the start of the conversion to the counter modules and less than two months since their completion, this testimony was meaningless." (Respondent's Brief, p. 11). I do not agree with Respondent's assertions. First, Inspector McGrath was quite specific in his direct testimony that in the six month period preceding April, 1986, he had made approximately 40 seizures (Tr. 102) and in the period beginning April, 1986, to the date of the hearing he had made two seizures (Tr. 102) and on cross examination Respondent failed to elicit any testimony to the contrary. indeed, Inspector McGrath stated, "Well, in the last two years, I've made over 40 Seizures ... And the last ... since this new system has gone in, my seizures have dropped dramatically. I don't believe I've had three seizures since...." (Tr. 222). Certainly, nothing in inspector McGrath's testimony on cross-examination refuted in the slightest his initial testimony that in the six month period preceding April, 1986, he had made 40 seizures. Consequently, the period of time compared were essentially the same - six months versus five months. Nor do I find Respondent's complaint that less than two months had passed since completion of the conversion of any significance whatever. As Mr. McGrath's testimony showed 40 seizures in the six month period preceding the beginning of the conversion (about 6.6 per month), even if his two seizures were 'credited" to the "less than two months since their completion", there still was a dramatic drop in his seizure rate; and even if Respondent were correct, and I have found to the contrary, that Mr. McGrath's seizure rate for the year preceding the conversion were only 40, or 3.3 per month, his seizure rate, nevertheless, showed a dramatic decrease for the period beginning April, 1986, to the date of the hearing. Second, Respondent failed to produce any testimony or evidence concerning the seizure rates of inspectors at the passenger terminal either prior to April 1986, or following April, 1986.

Accordingly, I find that, as the record shows without contradiction, there was a very significant drop in the seizure rates for inspectors at the passenger terminal following the reconfiguration of the inspectional modules. Applying the standard set forth in Department of Health and Human Services, Social security Administration, supra, I [ v29 p19 ] conclude that the changes in conditions of employment of inspectors at the passenger terminal, as the result of the reconfiguration of the inspectional modules and the introduction of baggage carts, was substantial and more than de minimis and, accordingly that the changes gave rise to a bargaining obligation.

Respondent asserts that even if the renovations had more than de minimis impact, NTEU failed to properly invoke its right to negotiate (Respondent's Brief, pp. 14-18). Respondent correctly states that Article 37, Section 4 of the National Agreement provides, in relevant part, that,

"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)...." (G.C. Exh. 5, Art. 37, Sec. 4).

When President Pacewicz was informed on April 4, 1986, by steward Trembly, of the meeting held earlier that day concerning "... major changes at the passenger terminal which include the removal of the inspectional belts, (G.C. Exh. 6), he immediately informed Respondent that, "N.T.E.U., chapter 133 invokes its right to negotiate over the impact and implementation of this change in working conditions." (G.C. Exh. 6). It is certainly correct that he did not in his request of April 4, 1986. "... submit written proposals...."; but Respondent, by its reply of April 7, 1986, stated,

"We do not plan to make any substantial changes to our inspection facility which would effect (sic) working conditions; therefore, we feel no obligation to negotiate this matter." (G.C. Exh. 7).

Accordingly, as Respondent foreclosed negotiations by its refusal to negotiate ("we feel no obligation to negotiate this matter"), NTEU was under no obligation to submit written proposals, inasmuch as Article 37, section 4 required only that written proposals be submitted "within a reasonable period after notification of the proposal change(s)", since Respondent refused to negotiate. The District Director did not, as Respondent asserts, state that " ... the Agency [ v29 p20 ] failed to see how the proposed changes would have an adverse impact on bargaining unit employees, (Respondent's Brief, p. 16). To the contrary, the District Director stated, "We do not plan to make any ... changes ... which would effect (sic) working conditions; therefore, we feel no obligation to negotiate this matter." Thus, Respondent plainly stated that the changes planned did not affect working conditions and there was no obligation to negotiate. Respondent's reliance on National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4, 21 FLRA 24, 31 (1986), is misplaced as that at decision is both distinguishable and inapplicable where, as here, the agency, without waiting for or requesting union proposals, declared the proposed changes non-negotiable because they did not affect conditions of employment. Department of the Treasury, U.S. Customs Service, Region I (Boston, Massachusetts) 16 FLRA No. 97, 16 FLRA 654, 670-671 (1984). Rather, as the Authority stated in Department of Health and Human services, Social security Administration, supra, when there is a refusal to negotiate a change in condition of employment, determination as to whether there was an obligation to bargain depends, inter alia, on,

"... such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees." (24 FLRA at 408).

The nature and extent of the changes on conditions of employment of bargaining unit employees has been discussed above and were reasonably foreseeable from the nature and character of the changes imposed. Respondent violated 16(a)(5) and (1) of the Statute by its refusal to negotiate over the impact and implementation of its decision to renovate tile passenger terminal.

C. Assignment of Passenger Terminal Inspectors To cargo Terminal During Passenger Terminal Tours of Duty.

Paragraph 8(a) of the consolidated complaint alleges:

"(a) On or about February 24, 1986, the Respondent unilaterally changed conditions of employment by requiring bargaining unit employees assigned to work on the 10:00 a.m. to 6:00 p.m. shift at the Logan International Airport passenger terminal, to report to the [ v29 p21 ] cargo area for the purpose of performing cargo assignments without furnishing the Union with notice of the change and/or an opportunity to negotiate over the, impact and implementation of the change." (G.C. Exh. 1(H), Par. 8(a)) (Emphasis supplied).

The sole allegation of the Complaint is that, "On or about February 24, 1986, the Respondent unilaterally changed conditions of employment by requiring bargaining unit employees assigned to work on the 10:00 a.m. to 6:00 p.m. shift at the ... passenger terminal, to report to the cargo area for the purpose of performing cargo assignments...." There is no allegation in the Complaint that assignment of employees from the passenger terminal to cargo either did or did not result in a change of hours; but only that Respondent unilaterally changed conditions of employment by requiring employees assigned to the 10:00 a.m. to 6:00 p.m. shift at the passenger terminal to report to the cargo area to perform cargo assignments. Indeed, NTEU asserts, inter alia, that,

"... The Activity's unilateral change in its rotation policy whereby passenger Inspectors were directed to work in the cargo facility is therefore clearly unlawful in light of its failure to provide NTEU notice of the change and an opportunity to bargain." (NTEU's Brief, p. 19) (Emphasis supplied).

The problem is that the record shows without contradiction, and as General Counsel concedes, the only change in conditions of employment alleged in the complaint, namely by requiring employees assigned to work on the 10:00 a.m. to 6:00 p.m. shift at the passenger terminal to report to the cargo area to perform cargo assignments, was not a change at all. Thus, General counsel states that,

"It is undisputed that prior to February, 1986, Respondent had reassigned employees from passenger shifts to cargo shifts on an as needed basis." (General Counsel's Brief, p. 4).

What General counsel urges as a violation is not that employees assigned to the passenger terminal were required to report to the cargo terminal, as alleged in the Complaint, but, rather that the hours of employees sent from the [ v29 p 22 ] passenger terminal to the cargo terminal were not changed to the hours of the cargo terminal, which is not alleged in the Complaint; and what NTEU additionally urges as a violation, namely, that "... the Activity never notified the Union nor did it ever bargain ... over this manner of selecting passenger Inspectors (lowest annual overtime earnings) to work in cargo" (NTEU'S Brief, p. 14), is not alleged in the Complaint.

Neither the violation urged by General Counsel nor the additional violation urged by NTEU is encompassed by the language of the Complaint and I am constrained by the Authority's decision in U.S. Government Printing Office, 23 FLRA NO. 6, 23 FLRA 35, 38 (1986), to conclude that neither allegation was raised by the Complaint. Moreover, while I overruled the objection, Respondent had objected to questions concerning the hours of duty of employees reassigned to the cargo area (Tr. 117-118) because such line of questioning had "... no relevancy to the allegation in the complaint." (Tr. 118). Upon reflection, I erred in overruling the objection, and, to the extent that General Counsel urged a violation as the result of the asserted change as to hours of duty of employees sent from the passenger terminal to the cargo terminal, I should not have permitted litigation of the issue in view of Respondent's objection, as such issue was not encompassed by the complaint and the complaint was never amended to include such allegation. As to NTEU's additional allegation concerning the manner of selection of inspectors, this allegation was not encompassed by the Complaint, was not litigated, and was raised for the first time by NTEU'S Brief.

Moreover, even if the Complaint were deemed sufficiently broad as to include the allegation as urged by General Counsel, I nevertheless find that General Counsel has failed to prove by the preponderance of the evidence received that Respondent changed its practice on, or after, February 24, 1986, with respect to the hours of duty of employees assigned to the passenger terminal when sent to the cargo area. Thus, as set forth above in Paragraph 5, Chief Inspector Holzman testified that the practice of sending inspectors assigned to the passenger terminal to the cargo terminal had been on-going since at least 1967; Cargo Supervisor, Senior Customs Inspector Tilton, testified that for the two and one half years he had been the Cargo Supervisor he had made requests to the Supervisor of the passenger terminal for assistance when he did not have enough manpower because of the absence of assigned inspectors, that the Passenger Terminal Supervisor [ v29 p23 ] had always responded to his request for assistance and that passenger terminal inspectors would remain at cargo until needed at the passenger terminal. Mr. Tilton further testified that if he knew in advance that an assigned inspector was going to be absent he would call in advance and get a replacement, but if he did not know in advance, he would call in the morning and Mr. Haynes would send an inspector when the shift came in at 10 o'clock. Mr. Haynes testified that for the most part, inspectors sent to cargo during the 10-6 shift returned to the passenger terminal for the first flight at about 12:30 to 1:00 p.m., although on occasion an inspector would remain at cargo and not return to the passenger terminal that day. Both Mr. Tilton and Mr. Haynes testified that the inspectors' hours did not change the day they came in at 10:00 a.m. and were sent to cargo, but if they were to be assigned to cargo for longer than that one day, their hours were changed to the cargo hours.

Although General Counsel asserts that,

". . . after February 24, 1986, Respondent began a new practice of sending employees from the passenger terminal to the cargo facility . . . during all or a portion of the ... passenger shift instead of reassigning the employees to the ... cargo shift as was done in the past' (General counsel's Brief, p. 23), the record is to the contrary. 8 See, the testimony of Inspectors McGrath (Tr. 117-118, 163-164) and Doherty (Tr. [ v29 p24 ] 182); supervisory Inspectors Haynes (Tr. 434-458) and Tilton (Tr. 418-427); and Chief Inspector Holzman (Tr. 358-359).

Accordingly, for the foregoing reasons, Paragraph 8(a) of the Consolidated complaint (Case No. 1-CA-60244) is hereby dismissed.

Neither General counsel nor the charging Party seeks a status quo ante order in Case No. I-CA-60236 (Paragraph 8(e) of the Consolidated Complaint). Such an order would, in any event, he singularly inappropriate isasmuch as: (a) the renovation has been completed; and (b) it was not the renovation of the passenger terminal which was challenged but the failure and refusal of Respondent to negotiate over the impact and implementation of that decision. A present order requiring negotiation will fully effectuate the purpose and objectives of the Statute.

Having found that Respondent violated 16(a)(5) and (1) of the Statute by refusing to negotiate over the impact and implementation of its decision to renovate the passenger terminal, it is recommended that the Authority adopt the following:

ORDER

Pursuant to S 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. S 2423.29, and 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that the U.S. customs service, Northeast Region, Boston, Massachusetts, shall: [ v29 p 25 ]

1. Cease and desist from:

(a) Refusing to negotiate in good faith with the National Treasury Employees union, the exclusive representative of its employees, concerning the procedures to be observed in implementing its decision to renovate the passenger terminal at Logan International Airport, including the introduction of "smarte carts" and concerning appropriate arrangements for employees adversely affected by such renovation of the passenger terminal at Logan international Airport, including the introduction of "Smarte Carts."

(b) in any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) upon request, negotiate in good faith with the National Treasury Employees union, the exclusive representative of its employees, concerning the procedures to be observed, and appropriate arrangements for employees adversely affected by, Respondent's renovation of the passenger terminal at Logan international Airport, including the introduction of "Smarte Carts".

(b) Post at its facilities at Logan international Airport copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. upon receipt of such form, they shall be signed by the District Director arid 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 p26 ]

(c) Pursuant to S 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, ROOM 1017, 10 causeway Street, Boston, Massachusetts 02222-1046, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith.

WILLIAM B. DEVANEY
Administrative Law Judge

Dated: February 27, 1987
       Washington, D.C.

[ v29 p27 ]

                              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 refuse to negotiate in good faith with the National Treasury Employees union, the exclusive representative of our employees concerning the procedures to be observed, and appropriate arrangements for employees adversely affected by, our decision to renovate the passenger terminal at Logan international Airport, including our decision to introduce "Smarte Carts".

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, upon request, negotiate in good faith with the National Treasury Employees union, the exclusive representative of our employees, concerning the procedures to be observed, and appropriate arrangements for employees adversely affected by our renovation of the passenger terminal at Logan international Airport, including the introduction of "Smarte Carts".

                                ___________________________
                                    (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. [PAGE]

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 I, whose address is: 10 causeway street, Room 1017, Boston, MA 02222-1046 and whose telephone number is: (617) 565-7280. [ v29 p2 ]

FOOTNOTES

Footnote 1 Case No. 1-CA-60234, which was included in the Consolidated Complaint (G.c. Exh. 1-H), on motion of General Counsel, with which all parties agreed (Tr. 10), was severed and remanded to the Regional Director for processing of a settlement agreement (Tr. 10) and all references to case No. 1-CA-60234 were deleted from the Consolidated Complaint (Tr. 10-12).

Footnote 2 For convenience of reference, sections of the statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7116(a)(5) will be referred to, simply, as "16 (a)(5)."

Footnote 3 General counsel's Motion to Correct Transcript, to which no objection was made, is hereby granted except the corrections requested on page 44, line 7 and page 201, line 24 which were not on either the page or line indicated; and corrections to indicated transcript references have been corrected as follows: p. 17, 1. 17 to p. 17, 1. 18; p. 20, 1. 13 to p. 26, 1. 13; p. 208, 1. 12 to p. 208, 1. 24; and p. 447, 1. 33 to p. 447, 1. 23. The transcript is hereby corrected as more fully set forth in the attached appendix.

Footnote 4 The total number of customs inspectors may be increased by the addition of up to as many as ten part-time inspectors during the peak summer travel period (Tr. 129). Part-time inspectors work 12:00 noon - 6:00 p.m. and 1:00 p.m. - 6:00 p.m. (Tr. 313, 450).

Footnote 5 Mr. Doherty testified that this practice continued "until the unfair Labor Resolution came down . . . I would guess probably march of '84" (Tr. 183). Ms. Tretter, in an objection to a question to Mr. McGrath, stated, "This line of questioning has to do with something that was already agreed upon in a settlement agreement in 198- --January of 1985. And noticed to all employees. That is, the assignment of passenger people to the cargo area at the start of the shift." (Tr. 117-118). Presumably, both Mr. Doherty and Ms. Tretter referred to the same Unfair Labor Practice "resolution"; but no party saw fit to show precisely what had been "resolved" in January, 1985. I am also aware that Mr. Edward Pacewicz, President of Chapter 133, when asked by Ms. Tretter about an arbitration case, testified as follows: ". . . I believe the arbitration case was some time in '83, but, yes, there was an arbitration case which dealt with --specifically what arose in that grievance was the fact that prior to the arbitration case, employees who were on the 10 to 6 cargo (sic) shift were sent down to cargo and they had their hours changed to 8 to 5. The management had instituted a change with a -- took the 10 to 6 cargo (sic) people off the passenger shift and sent them down to cargo. They did not change their shift. we filed a grievance, (sic) the result. The resulting decision from the arbitrator stated that that was, in fact, a change and that the agency was required to negotiate under Article 37 of the National Agreement Impact Bargaining." (Tr. 275). No party offered the arbitration award or showed whether the parties thereafter negotiated pursuant to the Award arid/or entered into any agreement with respect to the matter.

Footnote 6 Normally, this would mean that only 2 or 3 modules are in use at any given time by primary inspectors; and even with the addition of as many as 10 part-time inspectors during peak summer travel periods (Tr. 129), this would leave not less than 2 to 3 modules empty for use by rovers.

Footnote 7 NTEU'S statement, "The renovation work closed down nearly 50% of the inspection modules used by Customs Inspectors to perform 'primary' inspection searches" (NTEU Brief, p. 10), is a bit extravagant. Actually, the parties did little to develop the record on this point. Mr. McGrath testified that when construction began, "... they took ... the first three inspectional belts ... from the wall. They built a fake wall, a dummy wall around the area and they removed the old belts...." (Tr. 71). Later, Mr. McGrath stated it was "... three complete units" (Tr. 72), i.e., six inspectional belts out of sixteen inspectional belts, or three of eight inspectional modules, which is appreciably less than 50% of the inspection modules used by Customs. General Counsel Exhibit 8 (minutes of Chief Holzman's meeting of April 4, 1986) states that "They are going to do it ... 5 belts at a time. ..." i.e., 2 and 1/2 modules at a time; but the record is otherwise silent as to the actual number of modules in operation at any given time during the balance of the construction.

Footnote 8 As noted above at n. 5, I am aware that reference was made to a settlement agreement noticed to all employees in January, 1985, which concerned "... assignment of passenger people to the cargo area at the start of the shift." This might well have constituted an agreed practice, but neither party saw fit to show what practice was thereby established and I do not find from Mr. Doherty's statement that the practice (passenger shift hours did not change the day an employee was sent to cargo) continued 'until the unfair Labor Practice Resolution came down...." (Tr. 183), constitutes sufficient probative evidence that there was, in fact, a change of Respondent's practice in view of the testimony of Messrs. McGrath, Holzman, Tilton and Haynes to the contrary. By like token, I am aware of President Pacewicz's testimony concerning a 1983 arbitration award; but beyond supporting Respondent's assertion that prior to 1986 employees were sent to cargo without change of their shift, the reference does not show that the practice which gave rise to the arbitration ever changed. This case does not involve any allegation concerning the duty to bargain concerning the hours of duty of employees reassigned from one duty slot (passenger terminal) to another duty slot (cargo). Rather, it concerns only the allegation that Respondent changed conditions of employment on, or about February 24, 1986.

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