[ v52 p582 ]
52:0582(57)CA
The decision of the Authority follows:
52 FLRA No. 57
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
U.S. IMMIGRATION AND NATURALIZATION SERVICE
NEW YORK, NEW YORK
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 1917
(Charging Party/Union)
BY-CA-30100
_____
DECISION AND ORDER
November 18, 1996
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondent and the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions.
The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by effecting a change in the conditions of employment of certain "when actually employed" Immigration Inspectors (WAEs or mixed-tour inspectors) by placing them in an inactive duty status without first notifying the Union of its decision, and refusing to bargain over the impact and implementation of that decision on WAEs and regular full-time Immigration Inspectors (Inspectors). As a remedy, the Judge recommended that the parties be ordered to bargain on the impact and implementation of the decision. The Judge denied a backpay order requested by the General Counsel.
For the reasons stated below, we find that the Respondent did not violate the Statute. Therefore, we dismiss the amended complaint.
II. Background and Judge's Decision
The facts are set forth in the Judge's decision and are briefly summarized here. The Respondent gives prospective WAEs a document that provides facts about the job so that applicants can make an informed decision as to whether to accept a job offer. The Judge found that, prior to being hired, the WAEs are required to sign that document, "which sets forth their conditions of employment." Judge's Decision at 2, n.2. Section 1(b) of that document states in relevant part:
If you are appointed as a mixed-tour inspector . . . , the conditions of your employment include the following: you are not guaranteed full-time employment; you will be assigned to a tour of duty (full-time, part-time, or intermittent) or placed in a non-duty status as determined by management personnel based upon funding, [Immigration and Naturalization] Service need, passenger traffic, and/or your availability. . . . When your period of employment is finished, you will be placed on an 'inactive duty status' list. The employees on this list may be recalled to active duty status during peak travel periods, such as holidays, and future summer seasons.
Respondent's Exhibit F at 1.
The Respondent has employed WAEs at JFK International Airport (JFK) since 1976. In October 1992, there were approximately 30 WAEs and 330 Inspectors working at JFK inspecting passengers arriving on international flights. Prior to October 1992, the last time WAEs at JFK were involuntarily placed in an inactive duty status was September 1985.(1) Prior to 1985, WAEs at JFK had been placed in an inactive duty status every year since 1976. WAEs in the Respondent's other regions are in the same bargaining unit as the WAEs at JFK, and were frequently placed in an inactive duty status and recalled several times a year.
By memorandum dated September 30, 1992, the Respondent informed all WAEs at JFK that it was contemplating placing them in an inactive duty status on October 31, 1992, for most of the non-peak travel season. The Respondent did not notify the Union prior to sending the memorandum to the WAEs. On October 16, 1992, the Respondent's Assistant Port Director informally advised the Union President that the Respondent had distributed the September 30 memorandum to the WAEs and faxed him a copy of the memorandum. The Union President testified that he unsuccessfully attempted to enter into negotiations with the Respondent concerning the impact of its actions.
The Judge found that the Respondent failed to give the Union notice prior to announcing its decision to place WAEs in an inactive duty status and failed to negotiate with the Union over the impact and implementation of its decision. He then addressed whether the Respondent was obligated to give notice of the deactivation and bargain over its impact and implementation. The Judge stated that he was "sympathetic" to the Respondent's position that there was no change in the WAEs' conditions of employment because they were hired with the understanding that they would or could be deactivated and/or activated by the Respondent at any time. Judge's Decision at 7. However, the Judge found that he was "constrained to follow the Authority's decisions which mandate a contrary conclusion." Id., citing Federal Deposit Insurance Corporation, Washington, D.C., 48 FLRA 313 (1993), petition for review denied, No. 93-1694 (D.C. Cir. 1994) (FDIC) and Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 41 FLRA 690 (1991) (Ogden).
The Judge concluded that the deactivation of the WAEs constituted a change in their conditions of employment and the Respondent's failure to give notice and bargain over the impact and implementation of its decision on the WAEs and Inspectors violated section 7116(a)(1) and (5) of the Statute. The Judge rejected the General Counsel's request for a backpay remedy.
III. Positions of the Parties
A. General Counsel
The General Counsel excepts only to the Judge's failure to recommend an order that directs the Respondent to make whole WAEs for any loss of earnings, including overtime pay, and other benefits that they may have suffered when the Respondent placed them in an inactive duty status. The General Counsel argues that the facts found by the Judge demonstrate that all of the WAEs lost pay and benefits as the result of being placed in an inactive duty status.
B. Respondent
The Respondent argues that "[a]ctual [d]eactivation" is a condition of employment for WAEs, not a change in their conditions of employment, and that the Judge erred in finding that Ogden and FDIC are controlling. Respondent's Exceptions at 7. According to the Respondent, it is "implausible that fulfilling the terms of the pre-hire agreement here between [the] Respondent and the WAEs--that is, placing the [WAEs] in a nonpay status for the reasons enumerated in their agreement--would constitute a 'change' in the WAE's terms of employment." Id. at 10 (citation omitted).
Alternatively, the Respondent argues that, if the Respondent's decision is found to have constituted a change in WAEs' conditions of employment, then the amended complaint should nonetheless be dismissed because: (1) the Authority lacks jurisdiction under section 7116(d) of the Stature to review this case; and (2) the Union had sufficient notice and an opportunity to request bargaining over the impact and implementation of the decision, but failed to do so.
IV. Analysis and Conclusions
In order to conclude that the Respondent violated the Statute, it must be found that the Respondent's action in placing WAEs in an inactive duty status constituted a change in their conditions of employment.(2) See U.S. Immigration and Naturalization Service, Houston District, Houston, Texas, 50 FLRA 140, 143 (1995) (INS). There is no question in this case that the placement of WAEs in an inactive duty status concerns a condition of employment. The Respondent disputes only whether a change in conditions of employment occurred that triggered a bargaining obligation.
The determination of whether a change in conditions of employment occurred involves a case-by-case analysis and an inquiry into the facts and circumstances regarding the respondent's conduct and employees' conditions of employment. See 92 Bomb Wing, Fairchild Air Force Base, Spokane, Washington, 50 FLRA 701, 704 (1995); INS, 50 FLRA at 144.
For the following reasons, we find that the record does not support the Judge's conclusion that a change in WAEs' conditions of employment occurred in this case. Rather, the record supports a determination that the Respondent's decision to place WAEs in an inactive duty status did not change WAEs' conditions of employment and, therefore, did not give rise to a bargaining obligation.
It is undisputed that, prior to being hired, each applicant for the position of WAE was provided a document that states, in relevant part, that "you are not guaranteed full-time employment; you will be assigned to a tour of duty . . . or placed in a non-duty status as determined by management personnel." Respondent's Exhibit F at 1 (emphasis added). The condition of employment stated in this document is reaffirmed in the WAEs' SF-50, Notification of Personnel Action. See Respondent's Exhibit D. The conditions of employment set forth in the signed document and SF-50 are that WAEs are not guaranteed full-time employment and that they may be placed on an inactive duty list as determined by management based upon funding, need, passenger traffic, and/or availability. The signed document sets forth the condition that WAEs may be recalled to active duty status during peak travel periods, such as holidays and future summer seasons.
Additionally, testimony in the record reveals that WAEs were aware of these conditions of employment. The General Counsel called two WAEs to testify regarding the events that occurred in 1992 when WAE employees were placed in an inactive duty status. One WAE, who had been hired in 1981, testified that when he was hired he was "advised that this type of appointment--a condition of this type of employment would be that you very well may be placed on an inactive status[.]" Transcript at 69. In fact, this WAE had been placed in an inactive duty status in 1981 and 1985. Id. at 61-63. This employee also testified that in 1985 approximately half of the other WAE employees at JFK--about 15 or 16 WAEs out of a total of some 30 to 35--similarly were placed in an inactive duty status. The second WAE, who was hired in 1983, testified that she had been placed in an inactive duty status in 1983. Id. at 79. She further testified that other WAEs who were hired at that time, of which there were about 10, similarly were placed in an inactive duty status.
There was no testimony by WAEs or other record evidence to the effect that WAEs did not know that these were their conditions of employment or that they had any expectation of continued employment. Specifically, the General Counsel did not present testimony from any WAEs who had not been asked to sign the document or who had not received an SF-50 containing the statement regarding possible placement in an inactive duty status. The General Counsel also did not call to testify any WAEs hired after 1985 whose expectations of continued employment were different from those of WAEs hired before 1985 who had been placed in an inactive duty status.
Moreover, the fact that WAEs at JFK were not placed in an inactive duty status between 1985 and 1992 does not alter established working conditions in view of the following. First, the record does not establish that the 7-year period of continuous uninterrupted employment of the WAEs at JFK from 1985 to 1992 constituted a practice that created a new condition of employment. Rather, as asserted by the Respondent in its Post-hearing Brief at 15 and uncontroverted by the General Counsel, it reflects nothing more than the Respondent's determination that conditions during that period warranted the continued employment of WAEs. In fact, during the period the Respondent reaffirmed its position that it could place WAEs in an inactive duty status and notified employees of such through the issuance of the SF-50. See Respondent's Exhibit D. Second, although the General Counsel assumed throughout these proceedings that the WAEs had "a reasonable expectation of continued employment," General Counsel's brief to the Judge at 6, the General Counsel never explained how that change in their established conditions of employment had been achieved. Finally, the General Counsel neither alleged nor argued that placing the WAEs in inactive duty changed the conditions of employment of any other employees at JFK so as to trigger an obligation to bargain over other effects of the Respondent's action.
In finding that, by placing the WAEs in an inactive duty status, the Respondent changed those employees' conditions of employment, the Judge stated that he was constrained to follow the Authority's decisions in Ogden and FDIC. In Ogden, the Authority found that the respondent changed conditions of employment of on-call employees when it placed those employees in a nonpay status. The on-call employees in that case were employed subject to periodic release to a nonpay status as a condition of their employment. The Authority held that "when an employee's status changes from being paid for working to not working and not being paid, such a change constitutes a change in conditions of employment whether it results from the termination of on-call employment or a RIF." Ogden, 41 FLRA at 697. Accordingly, the Authority concluded that being removed from the payroll by placement in a nonpay status constituted a change in affected employees' conditions of employment.
In FDIC, the Authority found, based on a stipulated record, that the respondents changed conditions of employment of temporary employees when they did not renew their temporary appointments. The Authority noted that it had addressed an analogous issue in Ogden, and that in both cases the agency had the right to change the status of the employees as a condition of their employment, and the employees in both cases were informed of these conditions of employment at the time of their hiring. Consistent with Ogden, the Authority found that the non-renewal of appointments of temporary employees was a change in conditions of employment for those affected employees because they were removed from the payroll when their appointments were not renewed. The FDIC petitioned for review of the Authority's decision and, in an unpublished memorandum, the court denied the petition for review without resolving the "change" issue. Federal Deposit Insurance Corporation v. FLRA, No. 93-1694 (D.C. Cir. Dec. 22, 1994).
We conclude that where actions are taken consistent with pre-established conditions of employment agreed to at the time of hiring and the evidence is insufficient to establish that such pre-established conditions of employment have been changed by a subsequent practice or express agreement of the parties, such actions do not constitute changes in conditions of employment that require bargaining. Therefore, we will no longer follow the Authority's decisions in Ogden and FDIC to the extent that they suggest that any time on-call or temporary employees, or similarly situated employees, are placed in a nonpay status, such an action constitutes a change in those employees' conditions of employment. We stress, however, that a different conclusion may be warranted where the evidence is sufficient to establish that such pre-established conditions of employment have been changed by a subsequent practice or express agreement of the parties. E.g., U.S. Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 36 FLRA 567, 570-72 (1990); Letterkenny Army Depot, 34 FLRA 606, 611 (1990).
For these reasons, we conclude that the General Counsel has not established that the Respondent's decision to place WAEs in an inactive duty status constituted a change in their conditions of employment, and, consequently, has not established that the Respondent violated section 7116(a)(1) and (5) of the Statute. Accordingly, the complaint must be dismissed.(3)
V. Order
The complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| U.S. IMMIGRATION AND NATURALIZATION SERVICE,
NEW YORK, NEW YORK Respondent |
|
| and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1917 Charging Party |
|
Amy V. Dunning, Esquire
Dennis Desautels, Esquire
For the
Respondent
Peter S. Dow, Esquire
For the General Counsel
Salvatore Vassallo
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq., and the Rules and Regulations issued thereunder.
Pursuant to an amended charge first filed on October 23, 1992, by American Federation of Government Employees, AFL-CIO, Local 1917, (hereinafter called the Union or Charging Party), against the U.S. Immigration and Naturalization Service, New York, New York, (hereinafter called the INS or Respondent), a Complaint and Notice of Hearing was issued on December 3, 1993, by the Regional Director for the Boston, Massachusetts Regional Office, Federal Labor Relations Authority. The Complaint alleges that the Respondent violated Sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by effecting a change in the conditions of employ-ment of certain WAE Immigration Inspectors without first notifying the Union and affording it the opportunity to negotiate the impact and manner of implementation of the change.
A hearing was held in the captioned matter on January 25, 1994, in New York, New York. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post-hearing briefs on March 23 and 25, 1994, respectively, which have been duly considered.
Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations.
Findings of Fact
The National Immigration Council, American Federation of Government Employees, AFL-CIO, (AFGE) is the certified exclusive representative of a nationwide unit of Respondent's employees appropriate for collective bargaining. The Union is an agent of AFGE for purposes of representing the unit employees located at Respondent's New York premises. Included in the unit are the WAEs(1) at JFK International Airport, Jamaica, New York.
Respondent has employed WAE Immigration Inspectors at JFK since approximately 1976. WAE's perform the same duties as the regular full-time Immigration Inspectors whose main duties consist of inspecting passengers arriving on International Flights. In October 1992, when the events underlying the instant complaint occurred, there were approximately 30 WAE's and 300 regular full-time Immigration Inspectors working at JFK. The WAE's enjoy all the employment benefits received by the full-time Immigration Inspectors. The main difference between a WAE and a full-time Immigration Inspector appears to be the terms under which they are hired.(2)
The WAE Immigration Inspectors are employed year-round. The number of hours they work during any given period is determined by Respondent's needs. The WAE Inspectors, many of whom are full-time school teachers, may request placement in inactive duty status for personal reasons and, as noted in footnote 2, are also subject to involuntary placement in inactive status. Prior to October 1992, when the events underlying the instant complaint occurred, the last time WAE Immigration Inspectors at JFK were involuntarily placed in inactive duty status was September 1985. Prior to 1985, the record indicates that the WAE Immigration Inspectors had been placed on inactive status every year starting from 1976. In Respondent's other regions, the WAE's were frequently placed on inactive duty status and recalled several times a year.
The Collective Bargaining Agreement in effect at the time of the events underlying the instant complaint is silent with respect to placing WAE Immigration Inspectors in inactive duty status. In fact there is no separate reference to WAE Immigration Inspectors in the Collective Bargaining Agreement. The Collective Bargaining Agreement does contain a procedure for notifying the Union of changes in working conditions. The procedure which appears in Section 9A of the contract is known as a "9A Notice". According to the record, the "9A Notice" was not used in either the current or prior deactivations of WAE Immigration Inspectors "because it was not a change in conditions of employment".
By memorandum dated September 30, 1992, Ms. Roseanne Sonchik, the Area Port Director, informed the WAE's that:
All mixed tour inspectors (another name for WAEs) who desire to remain in active status will be scheduled to work 25 hours per week . . . commencing the week of October 18, 1992 and until further notice. As was the case in previous years, depend-ing on funding allocations, . . . the number of hours which you will be scheduled to work per week during FY 93 will be adjusted upward or downward.
I contemplate at this time, . . . to place all mixed tour inspectors at JFK in inactive status at the close of business on October 31, 1992 for most of the non-peak travel season. . . . Within the next two weeks, I will notify you of the final decision on your duty status after October 31.(3)
According to the testimony of Union President Salvatore Vassallo, late in the afternoon of Friday, October 16, 1992, Mr. John Mirandona, the Assistant Port Director, telephoned him for purposes of giving him a "heads up" on the status of the WAEs. Mr. Mirandona informed Mr. Vassallo, his long time friend and work associate, that Respondent was in the process of distributing notices to the WAEs that, effective October 31, 1992, they would be placed in inactive duty status. Mr. Vassallo asked Mr. Mirandona to FAX him a copy of the notice. Mr. Mirandona, after checking with his superior, Ms. Sonchik, and receiving permission, faxed a copy of the notice to Mr. Vassallo. Mr. Vassallo unsuccessfully attempted to discuss various impact items with Mr. Mirandona who in turn informed him to take the matter up with Ms. Sonchik. Mr. Mirandona made it clear that he had nothing to do with the matter and was just alerting Mr. Vassallo to what was happening so that he would be ready for the expected telephone calls from the WAEs. According to Mr. Vassallo, prior to the "heads up" from Mr. Mirandona, he had no knowledge of Respondent's plan to deactivate the WAEs. In this connection, Respondent admits that it gave no notice to the Union because it did not consider the deactivation to be a change in the WAE's conditions of employment.
Thereafter, on October 19, 20 and 21, 1992, Mr. Vassallo unsuccessfully attempted to enter into negotiations with Respondent concerning the impact of its actions on both the full time Immigration Inspectors and the WAEs. According to Mr. Vassallo on all three days he met with Ms. Joanne Baldwin, a Labor Relations Specialist, and told her of his concerns and proposals. She in turn informed him that she would relay his concerns and proposals to Mr. William Slattery, the District Director for the New York Region. She further assured Mr. Vassallo that a meeting would be arranged with Mr. Slattery or another official of the Respondent. Finally, on Wednesday, October 21, she informed him that she had been told by Mr. Slattery that there would be no meeting with the Union over the deactivation of the WAEs.
Although Mr. Vassallo was unsuccessful in his attempt to have a meeting with management for purposes of negotiating over the impact and manner of implementation of the deactivation of the WAEs, he did succeed in arranging a meeting wherein the WAEs could receive information from representatives of Respondent and the Department of Labor bearing on the benefits that they were entitled to while they were on inactive duty status.
Further, according to Mr. Vassallo, the WAEs were placed in inactive duty on October 31, 1992. Respondent recalled the WAEs on May 17, 1993. During the interim period the Respondent continued to man all the inspections booth with the full time Immigration Inspectors who, due to the layoff of the WAEs, were required to work additional or extra shifts. The additional cost for the extra shifts, according to Mr. Vassallo, exceeded the amount of money saved by the deactivation of the WAEs.
In contrast to the above testimony of Mr. Vassallo, Ms. Baldwin and Mr. Mirandona, for the most part denied all the meetings and telephone requests, etc., attributed to them. Thus, Ms. Baldwin denies ever talking with Mr. Vassallo about arranging a meeting with Mr. Slattery for purposes of discussing the impact of the scheduled deactivation of the WAEs. Mr. Mirandona acknowledges having a conversation with Mr. Vassallo concerning the October 16th notice to the WAEs concerning their deactivation. However, he denies initiating the telephone call, but admits that he sent a copy of the notice to Mr. Vassallo after first checking with his immediate supervisor, Ms. Sonchik. Other than setting up the meeting with various representatives from Respondent and the Department of Labor for the purpose of discussing the benefits available to the laid off WAEs, he does not recall Mr. Vassallo making any proposals or requesting to discuss the matter. Similarly, Ms. Angela Klapakis, Ms. Baldwin's super-visor, denies, contrary to the testimony of Mr. Vassallo, that she was ever approached by Mr. Vassallo and requested to set up a meeting with Mr. Slattery for purposes of discussing the deactivation of the WAEs.
Conclusions
The General Counsel, relying on a credibility deter-mination favoring his witnesses, takes the position that Respondent by failing to give the Union appropriate notice of its intention to deactivate the WAEs and refusing to bargain over the impact and manner of implementation of the deactivation violated Sections 7116(a)(1) and (5) of the Statute. In support of its position the General Counsel relies primarily upon the Authority's decisions in Federal Deposit Insurance Corporation, Washington, D.C., 48 FLRA 313; Headquarters, U.S. Air Force, Washington, D.C. and 375th Combat Support Group, Scott Air Force Base, Illinois, 44 FLRA 117, Aff'd Mem. No. 92-1175 (D.C. Cir.) (Nov. 12, 1993); Department of the Air Force, Scott Air Force Base, Illinois, 35 FLRA 844.
Respondent, on the other hand, relying on a credibility determination favoring its witnesses, takes the position that it was under no obligation to give the Union notice of the deactivation of the WAEs and bargain over the impact and manner of implementation of the deactivation since the deactivation did not constitute a change in condition of employment. Thus, it is Respondent's position that deacti-vation and activation at the discretion of Respondent was an existing condition of employment of a WAE. Alternatively, Respondent takes the position that even if the deactivation could be considered a change in a condition of employment, the record demonstrates that the Union did have notice (albeit not formal) of the impending deactivation of the WAEs and the opportunity to request bargaining but failed request bargaining over anything other than the opportunity to have representatives of the Labor Department meet with the affected WAEs and explain what benefits they were entitled to. Inasmuch as such a meeting was arranged, no violation of the Statute occurred.
Having analyzed the testimony of the witnesses and observed their demeanor while on the witness stand, I credit the testimony of Mr. Vassallo that he did in fact request to bargain with Respondent's representatives over the impact of the deactivation on both the affected WAEs and the full time inspectors. In reaching the aforementioned conclusion, I was impressed by Mr. Vassallo's recollection of the facts and the absence of a specific denial thereto by Respondent's witnesses. Thus, rather than denying certain crucial facts, Respondent's witnesses stated that they did not "recall" such facts.
In view of the above credibility determination, it must now be decided whether Respondent was under an obligation to give notice of the deactivation and, upon request, bargain over the impact and manner of the deactivation.
While I am sympathetic to Respondent's position, i.e. that there was no change in the WAE's conditions of employment since they were hired with the understanding that they would or could be deactivated and/or activated by Respondent at anytime, I am constrained to follow the Authority's decisions
which mandate a contrary conclusion. In this latter connection the Authority in Federal Deposit Insurance Corp. supra, found that the agency violated Section 7116(a)(1) and (5) of the Statute by failing to bargain over the impact and manner of implementation of its decision not to renew the employment of certain temporary unit employees. Similarly, in Ogden Air Logistics Center, Hill Air Force Base, Utah, 41 FLRA 690, the Authority found that an agency violated Section 7116(a)(1)and (5) of the Statute when the agency failed to bargain over the impact and manner of implementation of its decision to place "on call" employees in a nonpay status.(4)
In view of the above credibility findings and conclusions, and in view of Respondent's admission that prior to announcing the deactivation of the WAEs it did not give notice to the Union, I find that Respondent by failing to give the Union appropriate notice of its decision to deactivate the WAEs and thereafter failing and refusing to bargain over the manner of implementation and the impact of the decision on both the WAEs and the full-time Inspectors violated Sections 7116(a)(1) and (5) of the Statute. Federal Deposit Insurance Corp., supra, Ogden Air Logistics Center, Hill Air Force Base, Utah, supra.
The General Counsel, in addition to the usual bargaining order and notice posting, requests that the undersigned also issue a "backpay/make-whole" remedy on the ground that the record establishes that "but for" the Respondent's unilateral action the WAEs would have continued receiving their regular compensation, overtime pay and regular fringe benefits.
It appears that in seeking the above remedy, General Counsel is relying on the uncontested testimony from Mr. Vassallo that, following the deactivation of the WAEs, Respondent kept all the inspection booths manned by the full-time inspectors who, due to the fact that the WAEs were not actively employed, worked considerable overtime. It further appears that it is the position of the General Counsel that if Respondent had bargained with the Union over the I&I, the Union could have convinced Respondent that the deactivation would not have saved Respondent any money.
Had the Respondent retained some of the WAEs employed at the Airport a backpay order might well be appropriate(5) since bargaining might well have impacted on the manner of selection. However since all the WAEs working at the Airport appear to have been laid off, a back pay order does not appear appropriate. Moreover, I find the fact that Respondent's attempt to reduce its costs by terminating the employment of the WAEs turned out to be unsuccessful is, also, an insufficient justification for a back pay order.
In view of the above findings and conclusions, it is hereby recommended that the Authority adopt the following order designed to effectuate the purposes and policies of the Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the U.S. Immigration and Naturalization Service, New York, New York, shall:
1. Cease and desist from:
(a) Implementing the placement of the WAE employees in a nonpay status without first notifying the American Federation of Government Employees, AFL-CIO, Local 1917, the exclusive representative of the WAE employees working at the JFK Airport, and affording it the opportunity to bargain concerning the procedures which management will observe in effecting such change and appropriate arrangements for employees affected by such change.
(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Upon request, negotiate in good faith with the American Federation of Government Employees, AFL-CIO, Local 1917, the exclusive representative of the WAE employees working at the JFK Airport concerning the procedures to be observed in implementing the placement of the WAEs in a nonpay status and concerning appropriate arrangements for employees adversely affected by such change.
(b) Notify the American Federation of Government Employees, AFL-CIO, Local 1917 of any future placement of WAE employees in a nonpay status, and prior to implementation, afford it the opportunity to bargain concerning the procedures which management will observe in effecting such change and appropriate arrangements for employees adversely affected by such change.
(c) Post at its facilities at JFK Airport where unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the District 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 insure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Boston Region, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, August 11, 1994
__________________________
BURTON S. STERNBURG
Administrative
Law Judge
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 HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT implement the placement of WAE employees in a nonpay status without first notifying the American Federation of Government Employees, AFL-CIO, Local 1917, the exclusive representative of our employees, and affording it the opportunity to bargain concerning the procedures which management will observe in effecting such change and appropriate arrangements for employees affected by such change.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL upon request, negotiate in good faith with the American Federation of Government Employees, AFL-CIO, Local 1917, the exclusive representative of our employees, concerning the procedures to be observed in implementing the placement of the WAE employees in a nonpay status and concerning the appropriate arrangements for employees adversely affected by such change.
WE WILL notify the American Federation of Government Employees, AFL-CIO, Local 1917 of any future placement of WAE employees in a nonpay status, and prior to implementation, afford it an opportunity to bargain concerning the procedures which management will observe in effecting such change and appropriate arrangements for employees adversely affected by such change.
______________________________
(Activity)
Date:___________ By:___________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Boston Region, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Authority's Footnotes Follow:
1. In 1985, approximately half of the 30 WAEs employed at JFK were placed in an inactive duty status.
2. The amended complaint alleges that the Respondent changed the conditions of employment of certain WAEs by placing them in an inactive duty status. See General Counsel Exhibit 1(E); see also transcript at 6-7, 8, 19. Although the amended complaint alleges that this asserted change in WAEs' conditions of employment had an impact on Inspectors, there is no allegation in the amended complaint that the Respondent changed the conditions of employment of Inspectors or any other unit employees other than WAEs.
3. In light of this determination, there is no need to address the Respondent's other arguments or the General Counsel's exceptions.
ALJ's Footnotes Follow:
1. WAE stands for "when actually employed".
2. Prior to being hired the WAE is required to sign a document which sets forth their conditions of employment. Section 1(b) states in pertinent part as follows:
You are not guaranteed full-time employment; you will be assigned to a tour of duty (full-time, part- time, or intermittent) or placed in a non-duty status as determined by management personnel based upon funding, Service need, passenger traffic, and/or your availability. . . . When your period of employment is finished, you will be placed on an 'inactive duty status' list. The employees on this list may be recalled to active duty status during peak travel periods, such as holidays, and future summer seasons.
Similar language to that quoted above is set forth in the WAE's Standard Form 50-B entitled Notification of Personnel Action.
3. Based upon the September 30th letter, the Union filed an unfair labor practice charge on October 8, 1992 claiming that Respondent had illegally bypassed the Union by directly dealing with the WAE's with respect to a reduction in their hours. The charge was subsequently withdrawn on January 20, 1993.
4. The "on call" employees, like the WAEs herein, were subject to periodic release and recall as a condition of employment and also signed a pre-hire agreement wherein they acknowledged the existence of such conditions of employment. Furthermore, like the WAEs, their employment was on an as needed basis.
5. See Federal Deposit Insurance Corp., supra, wherein the Authority ordered a back pay remedy based upon the fact that Respondent did not cancel or fail to renew all the temporary employee contracts and that bargaining might have changed the manner in which the temporary employees were selected for termination.