Internal Revenue Service and Brookhaven Service Center (Respondent) and National Treasury Employees Union and National Treasury Employees Union, Chapter 99 (Complainant) 



[ v05 p525 ]
05:0525(64)CA
The decision of the Authority follows:


 5 FLRA No. 64
 
 INTERNAL REVENUE SERVICE
 AND BROOKHAVEN SERVICE CENTER
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION AND NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 99
 Complainant
 
                                            Case No. 30-08964(CA)
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
 NOT ENGAGED IN CONDUCT VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF
 EXECUTIVE ORDER 11491, AS AMENDED, AND RECOMMENDING THAT THE COMPLAINT
 HEREIN BE DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE COMPLAINANT FILED
 EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S DECISION AND
 ORDER AND A SUPPORTING BRIEF, AND THE RESPONDENT FILED AN ANSWERING
 BRIEF.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT
 RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE TRANSFERRED TO
 THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43
 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION
 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2423.1).  THE
 AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE
 FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135).
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED.  THE AUTHORITY HAS CONSIDERED THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, INCLUDING THE EXCEPTIONS FILED BY THE COMPLAINANT.  THE AUTHORITY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
 RECOMMENDATIONS ONLY TO THE EXTENT CONSISTENT HEREWITH.  /1/
 
    THE COMPLAINT HEREIN ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT
 VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER BY INSTITUTING A CHANGE
 IN THE TOURS OF DUTY OF ITS COMPUTER OPERATORS WITHOUT FIRST BARGAINING
 WITH THE COMPLAINANT CONCERNING THE SUBSTANCE, IMPLEMENTATION, AND
 IMPACT OF THE CHANGE.  THE RESPONDENT'S DEFENSE WAS THAT IT HAD NO
 OBLIGATION TO BARGAIN ABOUT THE SUBSTANCE OF ITS DECISION AND THAT, IN
 FACT, IT DID BARGAIN TO IMPASSE WITH COMPLAINANT CONCERNING
 IMPLEMENTATION AND IMPACT.
 
    THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT DID NOT
 VIOLATE SECTIONS 19(A)(1) AND (6) OF THE ORDER BY INSTITUTING A CHANGE
 IN THE TOURS OF DUTY OF ITS COMPUTER OPERATORS ON JULY 1 OR 2, 1978,
 WITHOUT FIRST BARGAINING WITH THE COMPLAINANT CONCERNING THE SUBSTANCE,
 IMPLEMENTATION, AND IMPACT OF THE CHANGE.  HOWEVER, FOR THE REASONS SET
 FORTH BELOW, THE AUTHORITY FINDS, CONTRARY TO THE ADMINISTRATIVE LAW
 JUDGE, THAT THE RESPONDENT'S DECISION TO CHANGE THE TOURS OF DUTY OF ITS
 COMPUTER OPERATORS WAS NOT EXCEPTED FROM ITS DUTY TO BARGAIN UNDER
 SECTION 11(B) OF THE ORDER.
 
    AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, THE RESPONDENT'S BROOKHAVEN
 SERVICE CENTER HAS A COMPUTER BRANCH STAFFED WITH REGULAR TOURS OF DUTY
 BOTH ON A 5-DAY PER WEEK, 24-HOUR PER DAY BASIS, AND ON A 6-DAY PER
 WEEK, 24-HOUR PER DAY BASIS.  HOWEVER, THE AMOUNT OF WORK TO BE
 COMPLETED NECESSITATED REGULAR OPERATION OF BOTH SYSTEMS 7 DAYS EACH
 WEEK, WITH EMPLOYEES WORKING SUNDAYS RECEIVING OVERTIME ON A CONTINUING
 BASIS.  IN ORDER TO REDUCE THE USE OF OVERTIME, THE RESPONDENT DECIDED
 THAT IT NEEDED TO SCHEDULE EMPLOYEES TO WORK ON WEEKENDS AS A PART OF
 THEIR REGULAR TOURS OF DUTY.  THE RESPONDENT MET WITH THE COMPLAINANT ON
 SEVERAL OCCASIONS TO INFORM IT OF TENTATIVE PLANS TO IMPLEMENT ON JULY 2
 A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS ON A REGULAR BASIS INSTEAD
 OF AN OVERTIME BASIS AND TO DISCUSS MATTERS PERTAINING TO IMPLEMENTATION
 AND IMPACT, INCLUDING PARTICULAR SCHEDULING PATTERNS.  THE RESPONDENT
 REQUESTED THAT THE COMPLAINANT PROVIDE WRITTEN PROPOSALS CONCERNING THE
 PROPOSED 7-DAY WORKWEEK AND THE COMPLAINANT SUBMITTED A LETTER
 DOCUMENTING ITS PRIOR PROPOSALS, INCLUDING ITS PROPOSAL THAT NO CHANGE
 BE MADE IN EXISTING ITS PRIOR PROPOSALS, INCLUDING ITS PROPOSAL THAT NO
 CHANGE BE MADE IN EXISTING TOURS OF DUTY.  THE RESPONDENT INFORMED THE
 COMPLAINANT THAT ITS DECISION WAS NONNEGOTIABLE UNDER SECTION 11(B) OF
 THE ORDER AND THE CHANGE IN TOURS OF DUTY WAS IMPLEMENTED ON JULY 1 OR
 2, WITH THREE REGULARLY SCHEDULED SHIFTS ON SUNDAYS.
 
    THE ADMINISTRATIVE LAW JUDGE FIRST CONSIDERED WHETHER THE RESPONDENT
 HAD AN OBLIGATION UNDER SECTION 11(B) OF THE ORDER TO BARGAIN OVER THE
 SUBSTANCE OF ITS DECISION TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY
 OPERATIONS ON A REGULAR BASIS INSTEAD OF AN OVERTIME BASIS.  THE
 ADMINISTRATIVE LAW JUDGE CONCLUDED, BASED ON THE DECISIONS OF THE
 FEDERAL LABOR RELATIONS COUNCIL (THE COUNCIL) IN AFGE LOCAL 1940 AND
 PLUM ISLAND ANIMAL DISEASE LABORATORY, DEPARTMENT OF AGRICULTURE,
 GREENPORT, NEW YORK, 1 FLRC 100(1971) AND FEDERAL EMPLOYEE METAL TRADES
 COUNCIL OF CHARLESTON AND U.S. NAVAL SUPPLY CENTER, CHARLESTON, SOUTH
 CAROLINA, 1 FLRC 236(1972), THAT THE TEST TO BE APPLIED IN DETERMINING
 WHETHER A PROPOSAL FALLS WITHIN THE MEANING OF THE STAFFING PATTERNS
 PROVISIONS OF SECTION 11(B) OF THE ORDER SO AS TO BE EXCEPTED FROM THE
 OBLIGATION TO BARGAIN IS WHETHER THE PROPOSAL IS INTEGRALLY RELATED TO
 AND CONSEQUENTLY DETERMINATIVE OF THE NUMBERS, TYPES, AND GRADES OF
 EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT, OR TOUR OF
 DUTY.  APPLYING THIS TEST TO THE FACTS OF THE INSTANT CASE, THE
 ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT DID NOT HAVE AN
 OBLIGATION TO BARGAIN ABOUT ITS DECISION TO CHANGE THE BASIC WORKWEEK TO
 INCLUDE REGULAR TOURS OF DUTY ON SUNDAYS.  IN THIS REGARD, THE
 ADMINISTRATIVE LAW JUDGE CITED THE RESPONDENT'S NEED TO BALANCE ITS
 WORKLOAD AGAINST THE BUDGETARY LIMITATIONS OF CONTINUED OVERTIME COSTS
 AND FOUND, BASED ON THAT FACT, THAT THE RESPONDENT'S DECISION WAS
 INTEGRALLY RELATED TO AND CONSEQUENTLY DETERMINATIVE OF THE NUMBERS OF
 EMPLOYEES ASSIGNED TO A TOUR OF DUTY.
 
    CONTRARY TO THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE, THE
 AUTHORITY FINDS THAT THE RESPONDENT'S DECISION IS NOT EXCEPTED FROM THE
 DUTY TO BARGAIN UNDER SECTION 11(B) OF THE ORDER.  THE ADMINISTRATIVE
 LAW JUDGE CORRECTLY IDENTIFIED THE TEST TO BE APPLIED, BUT HE DID NOT
 DEMONSTRATE HOW AND IN WHAT MANNER THE CHANGE IN THE BASIC WORKWEEK WAS
 INTEGRALLY RELATED TO AND DETERMINATIVE OF THE NUMBERS, TYPES, AND
 GRADES OF EMPLOYEES ASSIGNED TO THE SUNDAY SHIFTS.  IN THIS REGARD, THE
 FACTS HEREIN ARE SUBSTANTIALLY SIMILAR TO THOSE IN U.S.  NAVAL SUPPLY
 CENTER, SUPRA.  IN THAT CASE, THE FACILITY PROVIDED AROUND-THE-CLOCK
 SERVICE TO THE FLEET 7 DAYS A WEEK.  THE UNION PROPOSED TO ESTABLISH A
 BASIC WORKWEEK OF FIVE 8-HOUR DAYS, MONDAY THROUGH FRIDAY.  THE AGENCY
 ARGUED THAT THE PROPOSAL WOULD REQUIRE IT TO PAY AVOIDABLE OVERTIME FOR
 SATURDAY AND SUNDAY WORK AND, IN ADDITION, RELYING ON THE PLUM ISLAND
 CASE, ARGUED THAT IT WAS NOT REQUIRED TO NEGOTIATE ON THE ESTABLISHMENT
 OR CHANGE OF TOURS OF DUTY.  THE COUNCIL REJECTED THIS CONTENTION,
 FINDING NO INDICATION THAT THE PROPOSAL TO AFFIRM MONDAY THROUGH FRIDAY
 ST THE BASIC WORKWEEK WOULD REQUIRE BARGAINING ON THE "NUMBERS, TYPES,
 AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO A . . . TOUR OF DUTY"
 WITHIN THE MEANING OF SECTION 11(B) OF THE ORDER.
 
    MORE PARTICULARLY, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 NATIONAL JOINT COUNCIL OF FOOD INSPECTION LOCALS AND OFFICE OF THE
 ADMINISTRATOR, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, U.S.
 DEPARTMENT OF AGRICULTURE, 3 FLRC 325(1975), A CASE NOT CITED BY THE
 ADMINISTRATIVE LAW JUDGE, THE UNION PROPOSED A BASIC WORKWEEK OF FIVE
 8-HOUR DAYS, MONDAY THROUGH FRIDAY, TO BEGIN AT 6 A.M. AND NOT COMMENCE
 AFTER 6 P.M. ON EACH MONDAY.  APPLYING THE PRINCIPLES OF U.S. NAVAL
 SUPPLY CENTER, SUPRA, THE COUNCIL FOUND THAT THE UNION'S PROPOSAL WAS
 NOT INTEGRALLY RELATED TO THE TYPES OF EMPLOYEES ASSIGNED TO THE
 PROPOSED TOURS OF DUTY, SINCE THE EMPLOYEES ON EACH TOUR OF DUTY WOULD
 CONTINUE TO BE FOOD INSPECTORS;  NOR WAS IT INTEGRALLY RELATED TO THE
 NUMBER OF EMPLOYEES ASSIGNED TO THE PROPOSED TOURS OF DUTY, SINCE THE
 PROPOSAL RELATED ONLY TO THE DAYS OF THE BASIC WORKWEEK, WHICH HAD AN
 IMPACT ON OVERTIME COSTS, BUT NOT ON THE NUMBERS OF EMPLOYEES ASSIGNED.
 
    THE CIRCUMSTANCES OF THE INSTANT CASE ARE NOT MATERIALLY DIFFERENT
 FROM THOSE IN U.S. NAVAL SUPPLY CENTER AND ANIMAL AND PLANT HEALTH
 SERVICE.  IN THIS CASE, THE ADMINISTRATIVE LAW JUDGE FOUND, AS THE
 COUNCIL FOUND IN THOSE CASES, THAT THE DECISION TO CHANGE THE BASIC
 WORKWEEK WOULD AFFECT THE AMOUNT OF OVERTIME TO BE PAID.  HOWEVER, THE
 ADMINISTRATIVE LAW JUDGE CITED NO EVIDENCE IN THE RECORD IN THIS CASE,
 AND THE COUNCIL FOUND NO EVIDENCE IN THOSE CASES, THAT THE DECISION TO
 CHANGE THE BASIC WORKWEEK IN ITSELF WAS DETERMINATIVE OF THE NUMBERS,
 TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO THE PROPOSED TOURS OF DUTY,
 I.E., IN THIS INSTANCE, THE PROPOSED REGULAR SHIFTS ON SUNDAY.  THUS,
 BASED ON THE COUNCIL'S DECISIONS IN U.S. NAVAL SUPPLY CENTER AND ANIMAL
 AND PLANT HEALTH SERVICE, THE RESPONDENT'S DECISION TO CHANGE THE BASIC
 WORKWEEK TO INCLUDE REGULAR TOURS OF DUTY ON SUNDAY IS NOT EXCEPTED FROM
 THE DUTY TO BARGAIN UNDER SECTION 11(B) OF THE ORDER.
 
    IN THIS REGARD, CONTRARY TO THE RESPONDENT'S CONTENTION THAT, UNDER
 THE COUNCIL'S PLUM ISLAND DECISION, IT HAD A RIGHT UNDER SECTION 11(B)
 TO ESTABLISH A NEW TOUR OF DUTY ON SUNDAY, THE RECORD INDICATES THAT THE
 RESPONDENT HAD FOR SOME TIME MAINTAINED SUCH A TOUR OF DUTY ON AN
 OVERTIME BASIS.  THUS, ITS DECISION HEREIN DID NOT INVOLVE THE
 ESTABLISHMENT OF A NEW TOUR OF DUTY BUT A CHANGE FROM SCHEDULING AN
 ALREADY ESTABLISHED TOUR OF DUTY ON AN OVERTIME BASIS TO SCHEDULING IT
 AS PART OF A REGULAR TOUR OF DUTY, I.E., AS A PART OF THE BASIC
 WORKWEEK.
 
    BASED ON ALL THE FOREGOING REASONS, THE AUTHORITY FINDS THAT THE
 RESPONDENT'S DECISION TO ESTABLISH A REGULAR TOUR OF DUTY ON SUNDAYS IN
 THE CIRCUMSTANCES OF THE CASE IS NOT EXCEPTED FROM THE RESPONDENT'S DUTY
 TO BARGAIN UNDER SECTION 11(B) OF THE ORDER.  ACCORDINGLY, BY REFUSING
 TO NEGOTIATE ON ITS DECISION TO CHANGE THE EXISTING SUNDAY OVERTIME TOUR
 OF DUTY SO AS TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS
 ON A REGULAR BASIS, THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF
 THE ORDER.  /2/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7135(B) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE INTERNAL REVENUE SERVICE AND THE BROOKHAVEN SERVICE CENTER,
 HOLTSVILLE, LONG ISLAND, NEW YORK, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INSTITUTING CHANGES IN TOURS OF DUTY OF EMPLOYEES DESIGNED TO
 IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS ON A REGULAR BASIS
 WITHOUT FIRST NOTIFYING AND, UPON REQUEST, BARGAINING IN GOOD FAITH WITH
 THE NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 99, THE EXCLUSIVE REPRESENTATIVE OF THESE EMPLOYEES.
 
    (B) REFUSING TO MEET AND CONFER IN GOOD FAITH WITH THE NATIONAL
 TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
 99, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, WITH RESPECT TO:  CHANGES IN
 TOURS OF DUTY OF COMPUTER OPERATORS DESIGNED TO IMPLEMENT A SCHEDULE OF
 COVERAGE OF SUNDAY OPERATIONS ON A REGULAR BASIS.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS:
 
    (A) RESCIND AND REVOKE THE CHANGE IN TOURS OF DUTY IMPLEMENTED ON
 JULY 1 OR 2, 1978, IMPLEMENTING FOR COMPUTER OPERATORS A SCHEDULE OF
 COVERAGE OF SUNDAY OPERATIONS ON A REGULAR BASIS.
 
    (B) UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
 UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 99 WITH RESPECT TO
 ANY PROPOSED CHANGES IN THE TOURS OF DUTY OF COMPUTER OPERATORS DESIGNED
 TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS ON A REGULAR
 BASIS.
 
    (C) POST AT THE BROOKHAVEN SERVICE CENTER, HOLTSVILLE, LONG ISLAND,
 NEW YORK, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
 FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF THE
 FORMS, THEY SHALL BE SIGNED BY THE CHIEF OF THE COMPUTER BRANCH, AND
 THEY SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER,
 IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
 CUSTOMARILY ARE POSTED.  THE CHIEF OF THE COMPUTER BRANCH SHALL TAKE
 REASONABLE STEPS TO INSURE THAT NOTICES ARE NOT ALTERED, DEFACED, OR
 COVERED BY ANY MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION 2, ROOM 241, 26
 FEDERAL PLAZA, NEW YORK, N.Y.  10278, IN WRITING, WITHIN 30 DAYS FROM
 THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY
 HEREWITH.
 
    ISSUED, WASHINGTON, D.C., APRIL 21, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
               APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO
 
                        A DECISION AND ORDER OF THE
 
             FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
              RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INSTITUTE CHANGES IN TOURS OF DUTY OF OUR COMPUTER
 OPERATORS, DESIGNED TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY
 OPERATIONS ON A REGULAR BASIS, WITHOUT FIRST NOTIFYING AND, UPON
 REQUEST, BARGAINING IN GOOD FAITH WITH THE NATIONAL TREASURY EMPLOYEES
 UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 99, THE EXCLUSIVE
 REPRESENTATIVE OF OUR EMPLOYEES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THEIR RIGHTS ASSURED BY EXECUTIVE ORDER
 11491, AS AMENDED.
 
    WE WILL RESCIND AND REVOKE THE CHANGE IN TOURS OF DUTY IMPLEMENTED ON
 JULY 1 OR 2, 1978, IMPLEMENTING FOR OUR COMPUTER OPERATORS A SCHEDULE OF
 SUNDAY OPERATIONS ON A REGULAR BASIS.
 
    WE WILL, UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
 UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 99, WITH RESPECT TO
 ANY PROPOSED CHANGES IN THE TOURS OF DUTY OF COMPUTER OPERATORS DESIGNED
 TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS ON A REGULAR
 BASIS.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:
 
                             BY:  (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE
 ADDRESS IS:  FEDERAL LABOR RELATIONS AUTHORITY, REGION 2, NEW YORK, ROOM
 241, 26 FEDERAL PLAZA, NEW YORK, N.Y. 10278;  AND WHOSE TELEPHONE NUMBER
 IS (212) 264-4934.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    ELLIOT M. CARLIN, ESQUIRE
                   FOR THE RESPONDENT
 
    WILLIAM F. WHITE, ESQUIRE
                   FOR THE COMPLAINANT
 
    BEFORE:  FRANCIS E. DOWD
                   ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREINAFTER REFERRED TO AS THE ORDER).
 
    ON DECEMBER 26, 1978, A COMPLAINT WAS FILED BY NATIONAL TREASURY
 EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION CHAPTER 99 /3/
 ALLEGING THAT INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER /4/
 VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER.  /5/ ON OCTOBER 30,
 1979, REGIONAL DIRECTOR RONALD T. SMITH ISSUED A NOTICE SCHEDULING THE
 HEARING FOR DECEMBER 11, 1979 IN NEW YORK CITY.  BY REQUEST OF THE
 PARTIES, THE SITUS OF THE HEARING WAS CHANGED TO HOLTSVILLE, NEW YORK.
 
    ESSENTIALLY, THE COMPLAINT ALLEGES THAT RESPONDENT INSTITUTED A
 CHANGE IN THE TOURS OF DUTY OF ITS COMPUTER OPERATORS ON JULY 2, 1978
 WITHOUT FIRST BARGAINING WITH THE UNION CONCERNING THE SUBSTANCE,
 IMPLEMENTATION AND IMPACT OF THE CHANGE.  RESPONDENT'S DEFENSE IS THAT
 IT HAD NO OBLIGATION TO BARGAIN ABOUT THE SUBSTANCE OF ITS DECISION AND
 THAT, IN FACT, IT DID BARGAIN TO IMPASSE WITH THE UNION CONCERNING
 IMPACT AND IMPLEMENTATION.
 
    AT THE HEARING, ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND ARGUE
 ORALLY.  THEREAFTER, RESPONDENT AND THE COMPLAINANT FILED BRIEFS WHICH
 HAVE BEEN DULY CONSIDERED.  /6/
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
 TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING:
 
                             FINDINGS OF FACT
 
    THE COMPUTER BRANCH OF THE BROOKHAVEN SERVICE CENTER, INTERNAL
 REVENUE SERVICE (BSC) IS PART OF THE COMPUTER SERVICE DIVISION, ALONG
 WITH TWO OTHER BRANCHES, THE ACCOUNTING BRANCH AND THE DATA CONVERSION
 BRANCH.  BSC, LIKE ALL IRS SERVICE CENTERS, IS "COMPUTER BOUND;" THAT
 IS, THE PROCESSING OF TAX RETURNS AND TAXPAYER ACCOUNTS IS DONE BY
 COMPUTER.  THE COMPUTER BRANCH OPERATES EIGHT MAJOR COMPUTER SYSTEMS,
 INCLUDING A "REAL TIME SYSTEMS" (THE CONTROL DATA, OR CDC COMPUTER), AND
 THE "DIRECT DATA ENTRY SYSTEM" (THE HONEYWELL COMPUTER).  THE REAL TIME
 SYSTEM PROVIDES ACCESS TO TAXPAYER ACCOUNTS FROM REMOTE TERMINALS IN
 VARIOUS I.R.S. DISTRICTS, INCLUDING MANHATTAN, BROOKLYN AND ALBANY.  FOR
 EXAMPLE, IF A TAXPAYER COMES TO A DISTRICT OFFICE TO INQUIRE ABOUT THE
 STATUS OF HIS OR HER ACCOUNT OR TO MAKE A PAYMENT, THE ACCOUNT MAY BE
 ACCESSED AND ADJUSTED FROM THE REMOTE TERMINAL IN THE DISTRICT OFFICE.
 THE DIRECT DATA ENTRY SYSTEM IS USED TO PROCESS INFORMATION KEYED IN
 FROM TERMINALS AT THE SERVICE CENTER.  THERE ARE ABOUT 110 EMPLOYEES IN
 THE ENTIRE BRANCH, APPROXIMATELY 52 OF WHOM WORK ON THE SYSTEMS REFERRED
 TO ABOVE.
 
    PRIOR TO JULY, 1978, THE COMPUTER BRANCH WAS STAFFED WITH REGULAR
 TOURS OF DUTY BOTH ON A FIVE-DAY PER WEEK, TWENTY-FOUR-HOUR PER DAY
 BASIS, AND A SIX-DAY PER WEEK, TWENTY-FOUR HOUR PER DAY BASIS.  THE REAL
 TIME SYSTEM WAS STAFFED ON THE SIX-DAY WEEK BASIS.  HOWEVER, DURING THE
 PERIOD APRIL THROUGH JUNE 1978, AND EVEN BEFORE THAT, IT WAS NECESSARY
 TO OPERATE BOTH SYSTEMS SEVEN DAYS EACH WEEK, WITH EMPLOYEES WORKING
 SUNDAYS RECEIVING OVERTIME ON A REGULAR BASIS.  REGULAR WEEKEND
 OPERATIONS WERE NECESSARY ON THE CDC SYSTEM IN ORDER TO UPDATE WORKLOAD
 TO BE INPUTTED INTO THE HONEYWELL SYSTEM MADE IT NECESSARY TO REGULARLY
 OPERATE THAT COMPUTER ON WEEKENDS.  THUS, THE FACT THAT THERE WAS MORE
 WORK THAN COULD BE COMPLETED FROM MONDAYS THROUGH FRIDAYS, AS WELL AS
 THE LIMITED CAPACITY OF THE EXISTING COMPUTERS, NECESSITATED REGULAR
 WEEKEND OPERATIONS.  THESE OPERATIONS ACCOUNTED FOR APPROXIMATELY 10,000
 OVERTIME HOURS IN BOTH 1976 AND 1977.
 
    PRIOR TO MARCH 31, 1978, THE PROCEDURES FOR AUTHORIZING OVERTIME AT
 BSC WERE CONTROLLED ENTIRELY WITHIN THE SERVICE CENTER.  THUS, THE
 BRANCH REQUIRING OVERTIME DURING A SPECIFIC PERIOD WOULD SUBMIT A
 REQUEST THROUGH CHANNELS TO THE DIVISION CHIEF LEVEL.  IF THE DIVISION
 CHIEF APPROVED THE USAGE, THE RESOURCES MANAGEMENT DIVISION WOULD VERIFY
 THAT THERE WAS ADEQUATE FUNDING FOR THE REQUIRED OVERTIME HOURS.
 HOWEVER, DUE TO A SUBSTANTIAL NATIONAL DEFICIT IN THE APPROPRIATIONS BY
 WHICH ALL I.R.S. SERVICE CENTER OPERATIONS ARE FUNDED, IT WAS DETERMINED
 BY THE IRS REGIONAL COMMISSIONER, NORTH-ATLANTIC REGION, THAT NO
 OVERTIME EXPENDITURE COULD BE MADE WITHOUT HIS APPROVAL.  (RESP.
 EXHIBIT. NO. 1).  LATER, ON MAY 23, 1978, WILLIAM CAINE, CHIEF,
 RESOURCES MANAGEMENT DIVISION, BSC, WAS NOTIFIED THAT IN ADDITION TO THE
 NEW REQUIREMENT THAT OVERTIME USAGE BE APPROVED BY THE REGIONAL
 COMMISSIONER, THE ALLOCATION OF OVERTIME FUNDS FOR BSC WAS BEING
 IMMEDIATELY WITHDRAWN BY THE REGION.  THUS IT WOULD BE NECESSARY TO
 REQUEST BOTH APPROVAL AND SPECIFIC ALLOCATION OF FUNDS FROM THE
 NORTH-ATLANTIC REGION FOR ANY OVERTIME USE.
 
    ACCORDING TO WILLIAM CAINE, CHIEF OF THE RESOURCES MANAGEMENT
 DIVISION, AND HENRY PATRICK, CHIEF OF THE COMPUTER BRANCH, VARIOUS
 OPTIONS EXISTED TO REDUCE OVERTIME USAGE:  TO HIRE AND TRAIN ADDITIONAL
 PERSONNEL;  TO CHANGE TOURS OF DUTIES OF INDIVIDUAL EMPLOYEES;  OR TO
 CHANGE ENTIRE SHIFTS.  FOR THE COMPUTER BRANCH, HOWEVER, TO HIRE AND
 TRAIN ADDITIONAL PEOPLE WOULD NOT HAVE RESOLVED THE PROBLEM SINCE THERE
 WAS FULL UTILIZATION OF THE EXISTING COMPUTERS DURING THE WEEK, AND
 EMPLOYEES COULD NOT BE HIRED FOR WEEKENDS ONLY.  NOR WOULD IT BE
 FEASIBLE TO INCREASE THE CAPACITY OF THE COMPUTERS BY PURCHASING
 ADDITIONAL UNITS, SINCE IT WOULD TAKE ONE TO TWO YEARS TO OBTAIN AND
 MAKE THEM OPERATIONAL (RE. 109).  HAVING CONSIDERED AND REJECTED THE
 FOREGOING ALTERNATIVES, AND GIVEN THE IMMEDIACY OF THE NEED TO CUT BACK
 OVERTIME USAGE, MANAGEMENT CONCLUDED, ACCORDING TO MR. PATRICK, THAT IT
 NEEDED TO SCHEDULE EMPLOYEES TO WORK ON WEEKENDS WITHOUT WORKING IN AN
 OVERTIME MODE (TR. 110).
 
    ON OR ABOUT MAY 24, 1978, HENRY PATRICK ANNOUNCED TO MARIE LOCASCIO,
 NTEU STEWARD, THAT HE WISHED TO MEET WITH NTEU TO DISCUSS A PROPOSED
 CHANGE IN THE WORK WEEK IN THE COMPUTER BRANCH.  ON MAY 26, 1978, A
 FORMAL MEETING WAS HELD IN THE COMPUTER BRANCH OFFICE.  PRESENT AT THE
 MEETING FOR MANAGEMENT WERE PATRICK, AND SHIFT SUPERVISORS RICHIE
 SHERIFF, JOHN FESTA AND TONY SANNIOLA, WHILE FOR NTEU, JUDY OSLAGER
 (CHAPTER PRESIDENT), JOAN SHERIDAN AND MARIE LOCASCIO (STEWARDS)
 ATTENDED.  ALSO PRESENT AT NTEU'S BEHEST WERE TWO BARGAINING UNIT
 EMPLOYEES, JOHN BRAGOLI AND CHARLIE HILL.  MR. PATRICK CREDIBLY
 TESTIFIED THAT THE PURPOSE OF THE MEETING WAS TO INFORM THE UNION OF
 TENTATIVE PLANS TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS
 ON A REGULAR BASIS, INSTEAD OF AN OVERTIME BASIS.  AT THIS MEETING,
 VARIOUS PROPOSED SCHEDULES AND TYPES OF SCHEDULES WERE DISCUSSED;  TYPES
 OF SHIFTS (VERTICAL AND HORIZONTAL ROTATING SHIFTS, FIXED SHIFTS);  THE
 REASON FOR THE CHANGE;  AND A TENTATIVE JULY 2, 1978 IMPLEMENTATION
 DATE.
 
    ON DIRECT EXAMINATION, UNION STEWARD MARIE LOCASCIO WAS ASKED TO
 ELABORATE ON THE AMOUNT OF DETAILS PROVIDED BY MR. PATRICK AT THIS
 MEETING.  SHE REPLIED THAT "IT DIDN'T REALLY SOUND LIKE ANYTHING WAS
 CONCRETE." SHE CHARACTERIZED MANAGEMENT'S PRESENTATION WITH THIS
 QUOTATION-- "THIS IS WHAT WE ARE THINKING ABOUT DOING." (THIS TESTIMONY
 CORROBORATES THE RESPONDENT'S POSITION THAT, AT THIS POINT IN TIME, A
 DEFINITIVE METHOD OF IMPLEMENTATION HAD NOT BEEN DECIDED UPON, AND THAT
 RESPONDENT WAS OPEN TO SUGGESTIONS FROM THE UNION).  THE UNION
 REPRESENTATIVES EXPRESSED A PREFERENCE FOR ROTATING SHIFTS AND REQUESTED
 THAT WEEKENDS BE COVERED BY VOLUNTEERS.  WHEN THE MEETING TERMINATED
 AFTER ABOUT TWO HOURS, IT WAS AGREED TO MEET AGAIN AFTER MS. LOCASCIO
 CONSULTED THE SHIFT EMPLOYEES.  AFTER THE MEETING, THE UNION REQUESTED
 NEGOTIATIONS ON THE SUBSTANCE, IMPACT AND IMPLEMENTATION OF THE PROPOSED
 CHANGES IN THE TOURS OF DUTY.
 
    THE SAME PARTIES MET AGAIN AT LEAST TWO OR THREE TIMES ON OR ABOUT
 MAY 31, 1978, JUNE 5, 1978 AND JUNE 6, 1978.  AT THESE LATER MEETINGS,
 THE UNION AND MANAGEMENT NEGOTIATED OVER MANY ISSUES CONCERNING THE
 IMPACT AND IMPLEMENTATION OF THE DECISION TO ESTABLISH REGULAR SHIFTS TO
 COVER THE ENTIRE WEEKEND, INCLUDING PARTICULAR SCHEDULING PATTERNS TO BE
 USED.  FOR EXAMPLE, THE UNION OBJECTED TO ANY PROPOSED SCHEDULE WHICH
 WOULD REQUIRE AN EMPLOYEE TO WORK BOTH DAYS OF THE WEEKEND.  MANAGEMENT
 AGREED TO DISCARD ANY PROPOSED SCHEDULE WHICH CONTAINED SUCH A
 REQUIREMENT.  FURTHER, WHILE A FIXED SCHEDULE WAS MORE EXPEDITIOUS FROM
 MANAGEMENT'S POINT OF VIEW, MANAGEMENT AGREED TO THE UNION'S PREFERENCE
 FOR ROTATING SCHEDULES.  IN THIS WAY, AN EMPLOYEE WOULD NOT BE REQUIRED,
 FOR EXAMPLE, TO WORK ON SUNDAYS FOREVER.  NTEU'S REQUEST THAT SUNDAYS BE
 STAFFED WITH VOLUNTEERS RESULTED IN A CANVASS BY MANAGEMENT OF SHIFT
 EMPLOYEES TO SOLICIT VOLUNTEERS.  AS A RESULT OF THE CANVASS, SOME
 VOLUNTEERS WERE DISCOVERED, BUT NOT A SUFFICIENT NUMBER TO STAFF SUNDAYS
 ON A REGULAR BASIS.  THIS CORRESPONDED WITH THE UNION'S OWN EFFORTS TO
 OBTAIN VOLUNTEERS, WHICH DISCLOSED ONLY TWO EMPLOYEES.  THE UNION DID
 NOT PRESENT NAMES OF ANY PARTICULAR EMPLOYEES WHO WOULD VOLUNTEER.  IN
 FACT, AS TO ASSIGNING PARTICULAR EMPLOYEES TO PARTICULAR SHIFTS, THERE
 WAS A LARGE DEGREE OF LATITUDE ALLOWED BY MANAGEMENT;  THE EMPLOYEES
 WERE ASKED TO SUBMIT THEIR PREFERENCES AS TO WHAT SHIFTS THEY WANTED,
 AND TO WORK OUT AMONG THEMSELVES THE COVERAGE ON SUNDAYS.
 
    OTHER ISSUES WERE NEGOTIATED AT THESE MEETINGS BUT NO AGREEMENT WAS
 REACHED.  NTEU WANTED NURSES ON DUTY AT BSC AT NIGHTS AND ON WEEKENDS;
 MANAGEMENT DECLINED.  (THIS TOPIC IS ALSO CONTROLLED BY THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT, JOINT EXHIBIT 1, ARTICLE 19).  ALSO
 DISCUSSED WERE THE UNION'S PROPOSALS FOR SUPPORT COVERAGE FOR WEEKEND
 SHIFTS, INCLUDING PROVIDING RESIDENT PROGRAM ANALYSTS;  ADDITIONAL
 LIBRARY COVERAGE AND SCHEDULERS FOR ALL 21 SHIFTS DURING THE WEEK;  AND
 A REQUEST TO DELAY IMPLEMENTATION TO ACCOMMODATE THE EMPLOYEES' VACATION
 PLANS.  AS TO THIS LATTER REQUEST, MANAGEMENT RESPONDED BY AGREEING TO
 ACCOMMODATE THE EMPLOYEES' VACATION PLANS AND ACCORDING TO MR. PATRICK
 NO EMPLOYEE WAS DEPRIVED OF HIS OR HER VACATION OVER THE SUMMER OF 1978.
  HOWEVER, MANAGEMENT WOULD NOT AGREE TO DELAY IMPLEMENTATION UNTIL THE
 END OF THE SUMMER.  NTEU DID NOT PROVIDE ANY PROPOSALS CONCERNING A
 PROCEDURE TO BE USED TO ACCOMMODATE EMPLOYEES, AND MR. PATRICK BELIEVED
 THE UNION WAS SATISFIED WITH HIS AGREEMENT THAT NO ONE WOULD LOSE THEIR
 VACATION.
 
    NOTWITHSTANDING THE SEVERAL MEETINGS DESCRIBED ABOVE, MANAGEMENT
 REQUESTED ON JUNE 6, 1979 THAT NTEU PROVIDE IT WITH ITS WRITTEN
 PROPOSALS BY JUNE 19, CONCERNING THE PROPOSED SEVEN-DAY WORK WEEK IN THE
 COMPUTER BRANCH (COMPLAINANTS' EXHIBIT 1).  THIS WAS DONE ON THE ADVICE
 OF "EMPLOYEE MANAGEMENT RELATIONS" IN ORDER TO DOCUMENT WHAT THE UNION'S
 POSITION WAS.  THERE AFTER, MEETINGS WERE HELD AT THE UNION'S REQUEST
 WITH THE EMPLOYEES OF ALL THREE EXISTING SHIFTS TO TELL THEM OF THE
 PROPOSALS.  A LATTER MEETING WAS HELD WITH SOME OF THE SHIFT EMPLOYEES
 ON OR ABOUT JUNE 15, 1978 WITH ACTING SHIFT MANAGER DON MITCHELL, AT
 WHICH THE EMPLOYEES WERE PRESENTED WITH A SHIFT SCHEDULE, AND TOLD TO
 SUBMIT THEIR PREFERENCES.  FROM THIS, MANAGEMENT COULD ASSIGN EMPLOYEES
 TO GIVEN SHIFTS.  THE UNION'S LETTER DOCUMENTING ITS PRIOR PROPOSALS,
 ALL OF WHICH HAD BEEN REPEATEDLY DISCUSSED AT THE EARLIER MEETINGS, WAS
 NOT SUBMITTED UNTIL JUNE 19, 1978.  THESE WERE THE ONLY PROPOSALS WHICH
 NTEU SUBMITTED TO MANAGEMENT (TR. 44) OTHER THAN ONE PROPOSED SCHEDULE
 SUBMITTED BY AN EMPLOYEE.
 
    MANAGEMENT MADE ITS WRITTEN RESPONSE TO THE PROPOSALS ON JUNE 23,
 1978.  NO FURTHER NEGOTIATIONS WERE HAD, NOR DID NTEU RESORT TO THE
 FEDERAL SERVICE IMPASSES PANEL.  THE CHANGE IN TOURS OF DUTY WAS
 IMPLEMENTED ON JULY 1 OR JULY 2, 1978, WITH THREE REGULARLY SCHEDULED
 SHIFTS ON SUNDAYS.  AS A RESULT OF THE IMPLEMENTATION, THE AMOUNT OF
 OVERTIME UTILIZED IN THE COMPUTER BRANCH WAS DRASTICALLY REDUCED, WITH
 OVERTIME BEING UTILIZED ONLY ON AN EMERGENCY BASIS.  (TR. 136).
 
                        DISCUSSION AND CONCLUSIONS
 
    I.  DID THE ACTIVITY HAVE AN OBLIGATION TO BARGAIN OVER THE SUBSTANCE
 OF ITS DECISION TO CREATE TOURS OF DUTIES AND REGULAR SHIFTS TO COVER
 SUNDAY OPERATIONS IN THE COMPUTER BRANCH?
 
    THERE IS NO DISPUTE THAT THE REASON FOR MAKING A CHANGE IN PAST
 PRACTICE WAS THE EDICT FROM HIGHER AUTHORITY TO ELIMINATE OR
 SUBSTANTIALLY REDUCE THE AMOUNT OF OVERTIME WORK.  IN BOTH 1976 AND
 1977, THESE OPERATIONS ACCOUNTED FOR APPROXIMATELY 10,000 OVERTIME HOURS
 EACH YEAR.
 
    COMPLAINANT CONTENDS THAT RESPONDENT HAD AN OBLIGATION TO BARGAIN
 ABOUT ITS DECISION.  RESPONDENT CONTENDS THAT ITS DECISION WAS
 NON-NEGOTIABLE UNDER SECTION 11(B) OF THE ORDER.
 
    TWO CASES DECIDED BY THE FEDERAL LABOR RELATIONS COUNCIL SET THE
 EARLY PRECEDENT CONCERNING THE DUTY TO NEGOTIATE OVER THE SUBSTANCE OF
 PROPOSED CHANGES OF TOURS OF DUTY.  IN PLUM ISLAND ANIMAL DISEASE
 LABORATORY, DEPARTMENT OF AGRICULTURE, GREENPORT, N.Y., FLRC NO. 71A-11,
 THE COUNCIL HELD NON-NEGOTIABLE A UNION PROPOSAL WHICH WOULD HAVE
 REQUIRED BARGAINING ON CHANGES IN TOURS OF DUTY, REASONING:
 
    . . . (T)HE ESTABLISHMENT OR CHANGE OF TOURS OF DUTY WAS INTENDED TO
 BE EXCLUDED FROM THE
 
    OBLIGATION TO BARGAIN UNDER SECTION 11(B) (OF EXECUTIVE ORDER 11491).
 
    . . . (T)HE AGENCY HAS THE RIGHT TO DETERMINE THE "STAFFING PATTERNS"
 FOR ITS ORGANIZATION
 
    AND FOR ACCOMPLISHING ITS MISSION.  CLEARLY, THE NUMBER OF ITS WORK
 SHIFTS OR TOURS OF DUTY,
 
    AND THE DURATION OF THE SHIFTS, COMPRISE AN ESSENTIAL AND INTEGRAL
 PART OF THE "STAFFING
 
    PATTERNS" NECESSARY TO PERFORM THE WORK OF THE AGENCY.  FURTHER, THE
 SPECIFIC RIGHT OF AN
 
    AGENCY TO DETERMINE THE "NUMBER, TYPES, AND GRADES OF POSITIONS OR
 EMPLOYEES" ASSIGNED TO A
 
    SHIFT OR TOUR OF DUTY, AS PROVIDED IN SECTION 11(B), OBVIOUSLY
 SUBSUMES THE AGENCY'S RIGHT TO
 
    FIX OR CHANGE THE NUMBER AND DURATION OF THOSE SHIFTS OR TOURS.
 
    THE COUNCIL REFINED THIS HOLDING IN FEDERAL EMPLOYEES METAL TRADES
 COUNCIL OF CHARLESTON AND U.S. NAVAL SUPPLY CENTER, CHARLESTON, SOUTH
 CAROLINA, FLRC NO.  71A-52(REPORT NO. 31, 1972) BY HOLDING THAT THE PLUM
 ISLAND DOCTRINE APPLIED ONLY IN SITUATIONS WHERE THE AGENCY'S STAFFING
 PATTERN WOULD BE AFFECTED.  THE NEW TEST FASHIONED BY THE COUNCIL IN
 THIS AND RELATED CASES IS WHETHER THE CHANGE IS INTEGRALLY RELATED AND
 CONSEQUENTLY DETERMINATIVE OF THE NUMBERS, TYPES, AND GRADES OF
 EMPLOYEES OR STAFFING PATTERNS.  THIS TEST HAS BEEN APPLIED CONSISTENTLY
 IN SUBSEQUENT CASES UNDER THE ORDER AND ESSENTIALLY HAS BEEN ADOPTED BY
 THE AUTHORITY IN CASES ARISING UNDER SECTION 7106(B)(1) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.  /7/
 
    AS CORRECTLY POINTED OUT BY RESPONDENT IN ITS BRIEF, IN SUBSEQUENT
 CASES DECIDED BY THE COUNCIL AND THE ASSISTANT SECRETARY FOR
 LABOR-MANAGEMENT RELATIONS, THE DISTINCTION WAS MADE BETWEEN
 ESTABLISHING OR CHANGING SHIFTS AND/OR TOURS OF DUTY (NON-NEGOTIABLE)
 AND MERELY CHANGING CERTAIN EMPLOYEES' WORK DAYS OR HOURS, AND ASSIGNING
 THEM TO GIVEN SHIFTS (NEGOTIABLE UNDER 11(A)).
 
    THE FACTS OF THIS CASE CLEARLY DEMONSTRATE THAT THE ESTABLISHMENT OF
 NEW TOURS OF DUTY COULD NOT BE ACCOMPLISHED WITHOUT FIRST DECIDING THE
 NUMBERS OF EMPLOYEES REQUIRED TO WORK ON SUNDAYS.  ALTHOUGH THE CHANGE
 WAS REQUIRED TO REDUCE OVERTIME PAY IT ALSO HAD THE EFFECT OF INCREASING
 PREMIUM PAY.  THE AGENCY THEREFORE HAD TO DETERMINE ITS STAFFING PATTERN
 WITH ONE EYE ON THE AMOUNT OF WORK THAT NEEDED TO BE ACCOMPLISHED ON
 WEEKENDS, AND ONE EYE ON ITS BUDGETARY LIMITATIONS.  I CONCLUDE THAT THE
 DECISION TO ESTABLISH NEW TOURS OF DUTY WAS INTEGRALLY RELATED TO AND
 DETERMINATIVE OF THE STAFFING PATTERN REQUIRED, ESPECIALLY THE NUMBERS
 OF EMPLOYEES INVOLVED.  /8/ THEREFORE, I FIND THAT RESPONDENT DID NOT
 HAVE AN OBLIGATION TO BARGAIN ABOUT ITS DECISION IN THIS CASE.
 
    II.  DID THE RESPONDENT NEGOTIATE IN GOOD FAITH WITH THE UNION
 CONCERNING IMPACT AND IMPLEMENTATION?
 
    THERE IS NO DISPUTE THAT RESPONDENT NOTIFIED THE UNION OF ITS INTENT
 TO CHANGE THE TOURS OF DUTY.  THIS WAS DONE ON OR ABOUT MAY 24 WHEN
 HENRY PATRICK SO INFORMED NTEU STEWARD MARY LOCASCIO.  ON THE SAME DATE
 THE UNION SUBMITTED A WRITTEN REQUEST TO BARGAIN.  ALSO, THERE IS NO
 DISPUTE THAT A SERIES OF MEETINGS WERE HELD BETWEEN MAY 25 AND JUNE 9 AT
 WHICH IMPACT AND IMPLEMENTATION WERE DISCUSSED.
 
    THE ISSUE TO BE RESOLVED IS WHETHER THESE MEETINGS AND THE
 DISCUSSIONS THAT TOOK PLACE CONSTITUTED "NEGOTIATIONS" SUFFICIENT TO
 HAVE SATISFIED THE RESPONDENT'S OBLIGATION TO BARGAIN ABOUT IMPACT AND
 IMPLEMENTATION.  REGARDLESS OF HOW THE PARTIES OR PARTICIPANTS
 "CHARACTERIZED" THESE MEETINGS, THE QUESTION IS WHETHER OR NOT
 RESPONDENT FULFILLED ITS OBLIGATIONS UNDER THE ORDER.
 
    COMPLAINANT CONTENDS THAT THESE MEETINGS "ONLY CONCERNED THE
 POTENTIAL IMPACT OF NEW TOURS OF DUTY ON BARGAINING UNIT EMPLOYEES," AND
 BECAUSE ACTIVITY DID NOT HAVE A CONCRETE PROPOSAL TO OFFER, THESE
 MEETINGS DID NOT RISE TO THE LEVEL OF BEING "NEGOTIATIONS." /9/ IN MY
 OPINION, COMPLAINANT'S CONTENTION IS NOT SUPPORTED BY THE EVIDENCE.
 
    IT HAS BEEN CONSISTENTLY HELD BY THE ASSISTANT SECRETARY, STARTING
 WITH THE DECISION IN NASA, KENNEDY SPACE CENTER, A/SLMR NO. 223(1972), 2
 A/SLMR 566, 569, THAT IF WHAT TAKES PLACE BETWEEN THE PARTIES ACTUALLY
 AMOUNTS TO BARGAINING OR NEGOTIATIONS, THE OBLIGATION TO BARGAIN UNDER
 THE EXECUTIVE ORDER WILL HAVE BEEN MET.  SEE ALSO OFFICE OF ECONOMIC
 OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, A/SLMR NO. 251(1973);  3
 A/SLMR 128.  THUS, IF MANAGEMENT CONSULTS WITH UNION OFFICIALS (SUCH AS
 A CHAPTER PRESIDENT OR A STEWARD) WITH AN "OPEN MIND," SEEKS INPUT IN
 THE FORM OF COMMENTS OR PROPOSALS ON THE SUBJECT IN QUESTION, AND MAKES
 CERTAIN CONCESSIONS TO THE UNION, THERE IS NO QUESTION THAT BARGAINING
 OR NEGOTIATIONS HAVE TAKEN PLACE.  SOCIAL SECURITY ADMINISTRATION,
 BUREAU OF RETIREMENT AND SURVIVORS INSURANCE, MID-AMERICAN PROGRAM
 CENTER, A/SLMR RULING ON REQUEST FOR REVIEW NO. 414(1974);  MARE ISLAND
 NAVAL SHIPYARD, VILLEJO, CALIFORNIA, A/SLMR RULING ON REQUEST FOR REVIEW
 NO. 600(1975);  DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL
 SECURITY ADMINISTRATION, WESTERN PROGRAM CENTER, SAN FRANCISCO,
 CALIFORNIA, A/SLMR NO.  501(1975);  5 A/SLMR 225;  DUGWAY PROVING
 GROUND, DEPARTMENT OF THE ARMY, DEPARTMENT OF DEFENSE, DUGWAY, UTAH,
 A/SLMR NO. 511(1975), 5 A/SLMR 287;  AND DEPARTMENT OF HEALTH, EDUCATION
 AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BRANCH OFFICE, ANGLETON,
 TEXAS, A/SLMR NO. 982(1978), 8 A/SLMR 170.
 
    THE ACTIVITY'S BARGAINING OBLIGATION IN THE INSTANT MATTER WAS TO
 NEGOTIATE OVER THE IMPACT AND IMPLEMENTATION OF ITS DECISION TO CHANGE
 THE TOURS OF DUTY IN THE COMPUTER BRANCH TO COVER ITS SUNDAY OPERATIONS
 ON A REGULAR BASIS.  MANAGEMENT OFFICIALS MET ON SEVERAL OCCASIONS WITH
 JUDY OSLAGER, PRESIDENT OF NTEU CHAPTER 99, AND JOAN SHERIDAN AND MARIE
 LOCASCIO, NTEU STEWARDS, BETWEEN MAY 26, 1978 AND JUNE 9, 1978.  IN AT
 LEAST THREE AND IN POSSIBLY FIVE OF THESE MEETINGS, MANAGEMENT CONSULTED
 THE UNION CONCERNING ITS COMMENTS AND PROPOSALS ABOUT HOW TO IMPLEMENT
 THE CHANGE.  SCHEDULES, SHIFTS, ROTATIONS, WEEKENDS, VOLUNTEERS,
 VACATIONS, SUPPORT COVERAGE, AND FLEXI-TIME WERE SOME OF THE TOPICS
 DISCUSSED.  THAT THERE WERE SEVERAL BARGAINING UNIT EMPLOYEES PRESENT AT
 THESE MEETINGS DOES NOT CHANGE THE NATURE OF THE MEETINGS, AS THESE
 EMPLOYEES WERE PRESENT AT THE UNION'S REQUEST (TR. 48, 117).  THREE
 UNION PROPOSALS WERE ACTED UPON FAVORABLY BY MANAGEMENT.  FIRST, AFTER
 AT LEAST ONE OF MANAGEMENT'S SCHEDULES MET WITH STRONG OPPOSITION
 BECAUSE IT WOULD REQUIRE SOME BRANCH EMPLOYEES TO REGULARLY WORK BOTH
 DAYS OF A WEEKEND, MANAGEMENT DISCARDED ALL PROPOSED SCHEDULES WITH A
 SIMILAR FRAMEWORK.  SECOND, NTEU EXPRESSED A PREFERENCE FOR ROTATING, AS
 OPPOSED TO FIXED, SHIFTS, SO THAT NO EMPLOYEE WOULD BE REQUIRED TO WORK
 SUNDAYS ALL THE TIME.  ALTHOUGH A FIXED SCHEDULE IS MORE ADVANTAGEOUS
 FROM A MANAGEMENT STANDPOINT, THE COMPUTER BRANCH AGREED THAT THE NEW
 TOURS OF DUTY WOULD BE STAFFED WITH ROTATING SHIFTS.  THIRD, WHEN THE
 UNION REQUESTED THAT THE THREE SUNDAY SHIFTS BE STAFFED ENTIRELY WITH
 VOLUNTEERS, MANAGEMENT UNDERTOOK A CANVASS TO SOLICIT VOLUNTEERS FOR
 SUNDAYS.  ALTHOUGH INSUFFICIENT VOLUNTEERS WERE FOUND, MANAGEMENT DID
 ALLOW THE EMPLOYEES TO SET FORTH THEIR SHIFT PREFERENCES AND TO TRADE OR
 SWAP SHIFTS IF THEY COULD TO AVOID SUNDAY WORK.
 
    FROM MY REVIEW OF THE MEETINGS CONDUCTED BETWEEN THE PARTIES, I
 CONCLUDE THAT RESPONDENT FULFILLED ITS OBLIGATION TO BARGAIN ABOUT
 IMPACT AND IMPLEMENTATION.  WHEN RESPONDENT, ON JUNE 6, REQUESTED
 COMPLAINANT TO SUBMIT WRITTEN PROPOSALS, THE PURPOSE OBVIOUSLY WAS TO
 DOCUMENT WHAT HAD TRANSPIRED TO DATE.  I REJECT THE UNION'S ARGUMENT
 THAT I SHOULD IGNORE AT LEAST 4 MEETINGS BETWEEN MAY 24 AND JUNE 6 AND
 VIEW THIS CASE AS IF NOTHING HAPPENED PRIOR TO THE UNION'S WRITTEN
 PROPOSALS OF JUNE 19, THE SUBMISSION OF WHICH WAS DELAYED UNTIL SHORTLY
 BEFORE THE TARGET DATE FOR IMPLEMENTATION.  RESPONDENT WAS LEFT WITH
 LITTLE CHOICE BUT TO PROMPTLY RESPOND IN THE MANNER THAT IT DID,
 DOCUMENTING ITS PREVIOUSLY STATED POSITION ON EACH OF THE "PROPOSALS"
 SUBMITTED BY THE UNION.
 
    AS POINTED OUT IN RESPONDENT'S EXCELLENT BRIEF, THE BARGAINING
 INCLUDED SOME CONCESSION ON RESPONDENT'S PART AND TO SOME EXTENT "BORE
 FRUIT" FOR THE UNION.  THE FACT THAT THE UNION WAS NOT SUCCESSFUL IN
 PERSUADING RESPONDENT FROM MAKING ANY CHARGE AT ALL, IS OF NO
 CONSEQUENCE.  RESPONDENT CORRECTLY NOTIFIED THE UNION THAT IT PROPOSED
 TO INSTITUTE NEW TOURS OF DUTY;  THERE WAS BARGAINING;  /10/ AN IMPASSE
 OCCURRED;  AND THE DETAILS WERE SUMMARIZED AND DOCUMENTED IN WRITING.
 THE UNION DID NOT RESORT TO THE FEDERAL SERVICE IMPASSE PANEL.  THE
 RESPONDENT WAS ENTITLED TO IMPLEMENT ITS PROPOSED CHANGES.  /11/
 
    IN SUMMARY, I CONCLUDE THAT THE EVIDENCE, WHEN VIEWED IN ITS
 ENTIRETY, SIMPLY DOES NOT SUPPORT A FINDING THAT RESPONDENT FAILED TO
 FULFILL ITS OBLIGATIONS UNDER THE ORDER TO BARGAIN WITH THE UNION ABOUT
 THE IMPACT AND IMPLEMENTATION OF ITS NON-NEGOTIABLE DECISION TO CHANGE
 THE TOURS OF DUTY.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT VIOLATIVE OF
 SECTIONS 19(A)(1) AND (6) OF THE ORDER, I RECOMMEND THAT THE COMPLAINT
 HEREIN BE DISMISSED IN ITS ENTIRETY.
 
                         FRANCIS E. DOWD.
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MAY 15, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE PRESENT CASE IS DECIDED ON THE BASIS OF E.O. 11491, AS
 AMENDED, WHICH WAS OPERATIVE AT THE TIME OF THE ALLEGED UNFAIR LABOR
 PRACTICE AND IS ALONE INVOLVED IN THE INSTANT COMPLAINT.  THE DECISION
 AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ IN VIEW OF THE AUTHORITY'S DECISION HEREIN, IT IS NOT NECESSARY
 FOR THE AUTHORITY TO REACH THE ISSUE OF WHETHER RESPONDENT DISCHARGED
 ITS OBLIGATION TO BARGAIN ON MATTERS OF IMPACT AND IMPLEMENTATION, SINCE
 IT IS CLEAR THAT RESPONDENT DID NOT MEET ITS OBLIGATION TO BARGAIN AS TO
 ANY NEGOTIABLE MATTER RELATING TO THE DECISION ITSELF.
 
    /3/ HEREIN REFERRED TO AS COMPLAINANT, UNION OR NTEU.
 
    /4/ HEREIN REFERRED TO AS RESPONDENT, ACTIVITY OR BSC.
 
    /5/ IN ITS POST-HEARING BRIEF (P. 11, FN.3), COMPLAINANT MOVED FOR
 THE FIRST TIME TO AMEND THE COMPLAINT TO ALLEGE AN ADDITIONAL VIOLATION
 OF SECTION 19(A)(1) AND (6) BASED UPON RESPONDENT'S ALLEGED BY-PASSING
 OF THE UNION AND DEALING DIRECTLY WITH EMPLOYEES.  THE MOTION IS DENIED.
  IN ACCORDANCE WITH WELL-ESTABLISHED CASE LAW, THE MOTION IS HEREBY
 DENIED AS THE AMENDMENT IS NOT BASED UPON FACTS ALLEGED IN THE COMPLAINT
 AND THE ISSUE WAS NOT RAISED OR LITIGATED AT THE HEARING.  UNITED STATES
 DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, NAVAL AIR RESERVE
 TRAINING UNIT, MEMPHIS, TENNESSEE, A/SLMR NO. 106, 1 A/SLMR 490;
 ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATE LABORATORY, A/SLMR NO.
 136, 2 A/SLMR 87;  INTERNAL REVENUE SERVICE, WILMINGTON DELAWARE
 DISTRICT, A/SLMR NO. 516.
 
    /6/ TO THE MAXIMUM EXTENT POSSIBLE, I HAVE ADOPTED VERBATIM THE
 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW SUBMITTED IN THE
 BRIEFS.  FURTHER, UPON DUE CONSIDERATION, AND THERE BEING NO OBJECTION,
 RESPONDENT'S MOTION TO CORRECT THE TRANSCRIPT IS GRANTED.
 
    /7/ NATIONAL TREASURY EMPLOYEES UNION CHAPTER 66 AND INTERNAL REVENUE
 SERVICE, KANSAS CITY SERVICE CENTER, 2 FLRA NO. 106(SEPT. 13, 1979);
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3669, AFL-CIO, 2 FLRA
 NO. 78(FEBRUARY 4, 1980).
 
    /8/ DEPARTMENT OF NAVY, NAVAL PLANT REPRESENTATIVE OFFICE, A/SLMR NO.
 486, 5 A/SLMR 125;  VETERANS ADMINISTRATION HOSPITAL, SHERIDAN, WYOMING,