09:0116(15)CA - Customs Service, Region V, New Orleans, LA and NTEU and NTEU Chapter 168 -- 1982 FLRAdec CA



[ v09 p116 ]
09:0116(15)CA
The decision of the Authority follows:


 9 FLRA No. 15
 
 U.S. CUSTOMS SERVICE
 REGION V
 NEW ORLEANS, LOUISIANA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 (NTEU) AND NTEU, CHAPTER 168
 Charging Party
 
                                            Case No. 6-CA-248
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE
 CERTAIN AFFIRMATIVE ACTIONS.  THEREAFTER, THE GENERAL COUNSEL AND THE
 CHARGING PARTY FILED EXCEPTIONS AND THE RESPONDENT FILED
 CROSS-EXCEPTIONS AND AN OPPOSITION TO THE CHARGING PARTY'S EXCEPTIONS.
 /1/
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF
 THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS EXCEPT AS MODIFIED
 HEREIN.
 
    PRIOR TO MARCH 25, 1979, THE EMPLOYEES OF THE NEW ORLEANS AIR SUPPORT
 BRANCH (A SUBDIVISION OF THE RESPONDENT) WORKED FROM 8 AM TO 4 PM,
 MONDAY THROUGH FRIDAY.  IN NOVEMBER 1978, THE RESPONDENT DETERMINED THAT
 RESTRUCTURING THE WORKING HOURS OF CERTAIN EMPLOYEES OF THAT BRANCH
 WOULD ENABLE IT TO BETTER MEET THE DEMANDS OF ITS MISSION.  RESPONDENT
 NOTIFIED THE CHARGING PARTY (NTEU) THAT IT INTENDED TO ESTABLISH A
 SECOND SHIFT WITH HOURS OF 2 PM TO 10 PM, AND TO CHANGE THE HOURS OF THE
 EXISTING SHIFT FOR MOST OF THE PILOTS AND AIR OFFICERS TO 10 AM TO 6 PM.
  NTEU DEMANDED NEGOTIATIONS ON THE SUBSTANCE AS WELL AS THE IMPACT AND
 IMPLEMENTATION OF THE CHANGE.  ALTHOUGH NEGOTIATIONS WERE COMMENCED,
 NEITHER AGREEMENT NOR IMPASSE /2/ HAD BEEN REACHED BY MARCH 25, 1979,
 WHEN THE CHANGE WAS IMPLEMENTED.  THE COMPLAINT ALLEGED IN SUBSTANCE
 THAT THE RESPONDENT UNILATERALLY CHANGED THE STARTING AND QUITTING TIMES
 FOR EMPLOYEES OF THE AIR SUPPORT BRANCH WITHOUT HAVING AFFORDED NTEU THE
 OPPORTUNITY TO BARGAIN ABOUT THE CHANGES AND/OR THE IMPACT AND
 IMPLEMENTATION THEREOF, IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF
 THE STATUTE.
 
    THE JUDGE FOUND THAT THE "RESPONDENT'S ESTABLISHMENT OF NEW TOURS OF
 DUTY, THE DESIGNATION OF THEIR DURATION, I.E., THEIR STARTING AND
 QUITTING TIMES, AND THE NUMBER AND TYPES OF EMPLOYEES ASSIGNED THERETO
 WERE SO DIRECTLY AND INTEGRALLY RELATED TO THE ACTIVITY'S STAFFING
 PATTERNS . . ." AS TO BE DETERMINATIVE THEREOF AND, HENCE, NEGOTIABLE
 ONLY AT THE ELECTION OF THE AGENCY.  /3/ ACCORDINGLY, HE CONCLUDED THAT
 THE RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1) AND (5) OF THE STATUTE
 BY FAILING TO AFFORD NTEU AN OPPORTUNITY TO BARGAIN OVER THE DECISION TO
 CHANGE STARTING AND QUITTING TIMES.  HOWEVER, HE FURTHER FOUND THAT
 THERE WAS AN OBLIGATION TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF
 SUCH DECISION, AND THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND
 (5) OF THE STATUTE BY FAILING TO AFFORD NTEU THE OPPORTUNITY TO
 NEGOTIATE FULLY ON PROCEDURES AND APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES
 ADVERSELY AFFECTED, WITHIN THE MEANING OF SECTION 7106(B)(2) AND (3) OF
 THE STATUTE, /4/ PRIOR TO IMPLEMENTATION OF CHANGES IN TOURS OF DUTY.
 IN THIS LATTER REGARD, THE JUDGE FOUND THAT THE RESPONDENT'S INITIAL
 WILLINGNESS TO BARGAIN OVER THE HOURS OF THE FIRST SHIFT DID NOT
 PRECLUDE THE RESPONDENT FROM LATER DECLINING TO CONTINUE TO NEGOTIATE
 OVER THE MATTER.
 
    THE AUTHORITY AGREES WITH THE JUDGE THAT THE DECISION TO ESTABLISH
 THE SECOND SHIFT OR TOUR OF DUTY INVOLVED THE "NUMBERS, TYPES, AND
 GRADES OF EMPLOYEES OR POSITIONS ASSIGNED TO ANY ORGANIZATIONAL
 SUBDIVISION, WORK PROJECT, OR TOUR OF DUTY" WITHIN THE MEANING OF
 SECTION 7106(B)(1) OF THE STATUTE /5/ AND, THUS, WAS NEGOTIABLE ONLY AT
 THE ELECTION OF THE AGENCY.  IN VIEW OF THE RESPONDENT'S ELECTION NOT TO
 NEGOTIATE THE MATTER, THE BARGAINING OBLIGATION WITH RESPECT TO THAT
 PORTION OF THE DECISION WAS LIMITED TO PROCEDURES TO BE OBSERVED IN
 IMPLEMENTATION OF, AND APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
 AFFECTED BY, MANAGEMENT'S DECISION TO ESTABLISH THE SECOND SHIFT.  WITH
 REGARD TO THE DECISION TO CHANGE THE STARTING AND QUITTING TIMES OF THE
 PREVIOUSLY EXISTING FIRST SHIFT, HOWEVER, AND IN DISAGREEMENT WITH THE
 JUDGE, THE AUTHORITY FINDS THAT THE RESPONDENT HAD A DUTY TO BARGAIN
 WITH NTEU CONCERNING SUCH CONDITIONS OF EMPLOYMENT INASMUCH AS THE
 RECORD FAILS TO ESTABLISH THAT THE CHANGE EFFECTUATED BY THE RESPONDENT
 WAS DETERMINATIVE OF THE NUMBERS, TYPES OR GRADES OF EMPLOYEES OR
 POSITIONS ASSIGNED TO A WORK PROJECT OR TOUR OF DUTY, SO AS TO RENDER
 THE MATTER NEGOTIABLE ONLY AT THE RESPONDENT'S ELECTION UNDER SECTION
 7106(B)(1) OF THE STATUTE.  NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
 66 AND INTERNAL REVENUE SERVICE KANSAS CITY SERVICE CENTER, SUPRA N. 3.
 /6/ THE AUTHORITY THUS FINDS THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (5) OF THE STATUTE BY NOT AFFORDING NTEU THE OPPORTUNITY
 TO NEGOTIATE FULLY ON THE DECISION TO CHANGE THE STARTING AND QUITTING
 TIMES OF THE PREVIOUSLY EXISTING SHIFT /7/ AS WELL AS ON THE PROCEDURES
 TO BE OBSERVED IN THE IMPLEMENTATION OF, AND APPROPRIATE ARRANGEMENTS
 FOR EMPLOYEES ADVERSELY AFFECTED BY, THE DECISION TO ESTABLISH THE
 SECOND SHIFT, PRIOR TO THE IMPLEMENTATION OF THE CHANGES IN THE STARTING
 AND QUITTING TIMES AND TOURS OF DUTY.
 
    NTEU HAS REQUESTED THAT, AS A REMEDY, THE AUTHORITY ORDER A RETURN TO
 THE STATUS QUO ANTE.  NOTING PARTICULARLY THAT THE RESPONDENT FAILED TO
 MEET ITS DUTY UNDER THE STATUTE TO BARGAIN WITH NTEU CONCERNING THE
 DECISION TO CHANGE THE STARTING AND QUITTING TIMES OF THE PREVIOUSLY
 EXISTING FIRST SHIFT OR TOUR OF DUTY, THE AUTHORITY FINDS THAT AN ORDER
 DIRECTING REINSTATEMENT OF THE PREVIOUSLY EXISTING STARTING AND QUITTING
 TIMES OF THE FIRST SHIFT, UPON REQUEST OF NTEU, AND REQUIRING THE
 PARTIES TO NEGOTIATE CONCERNING THE STARTING AND QUITTING TIMES THEREOF,
 IS NECESSARY TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE.  IN
 THIS REGARD, AS THE AUTHORITY MORE FULLY STATED IN SCOTT AIR FORCE BASE
 (SUPRA N. 7) IN SIMILARLY ORDERING A RESTORATION OF THE PREEXISTING
 STARTING AND QUITTING TIMES WHERE MANAGEMENT HAD FAILED TO NOTIFY AND
 BARGAIN WITH THE EXCLUSIVE REPRESENTATIVE CONCERNING THE DECISION TO
 CHANGE ESTABLISHED CONDITIONS OF EMPLOYMENT, SUCH CONCLUSION IS
 SUPPORTED BY THE LITERAL LANGUAGE AND THE LEGISLATIVE HISTORY OF THE
 STATUTE AND IS NECESSARY IN ORDER TO AVOID RENDERING MEANINGLESS THE
 MUTUAL OBLIGATION UNDER THE STATUTE TO NEGOTIATE CONCERNING CHANGES IN
 CONDITIONS OF EMPLOYMENT.  HOWEVER, THE AUTHORITY FURTHER FINDS THAT A
 STATUS QUO ANTE REMEDY IS NOT WARRANTED HEREIN WITH RESPECT TO THE
 IMPACT AND IMPLEMENTATION OF (AS OPPOSED TO THE DECISION TO CREATE) THE
 NEWLY ESTABLISHED SECOND SHIFT.  THUS, BALANCING THE NATURE AND
 CIRCUMSTANCES OF THE VIOLATION AGAINST THE DEGREE OF DISRUPTION IN
 GOVERNMENT OPERATIONS THAT WOULD BE CAUSED BY SUCH A REMEDY, AND TAKING
 INTO CONSIDERATION THE VARIOUS FACTORS SET FORTH IN FEDERAL CORRECTIONAL
 INSTITUTION, 8 FLRA NO. 111 (1982), THE AUTHORITY CONCLUDES THAT AN
 ORDER REQUIRING THE RESPONDENT TO BARGAIN UPON REQUEST ABOUT IMPACT AND
 IMPLEMENTATION WILL BEST EFFECTUATE THE PURPOSES AND POLICIES OF THE
 STATUTE.  IN THIS REGARD, THE AUTHORITY NOTES PARTICULARLY THAT THE
 RESPONDENT ACTED WITHIN ITS RESERVED RIGHTS UNDER SECTION 7106(B)(1) OF
 THE STATUTE IN ESTABLISHING THE NEW SHIFT OR TOUR OF DUTY, AND THAT, AS
 A NEW SHIFT, THERE WERE NO PREEXISTING STARTING AND QUITTING TIMES WHICH
 THE AUTHORITY MAY ORDER THE RESPONDENT TO REINSTATE WHILE THE PARTIES
 ENGAGE IN COLLECTIVE BARGAINING WITH RESPECT THERETO.  ACCORDINGLY, THE
 AUTHORITY FINDS THAT A STATUS QUO ANTE REMEDY IS NOT REQUIRED OR
 NECESSARY TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE
 CONCERNING THE NEW SHIFT.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE U.S.  CUSTOMS SERVICE, REGION V, NEW
 ORLEANS, LOUISIANA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INSTITUTING ANY CHANGE IN THE STARTING AND QUITTING TIMES OF THE
 EXISTING FIRST SHIFT AT THE NEW ORLEANS AIR SUPPORT BRANCH WITHOUT
 AFFORDING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER
 168, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, THE
 OPPORTUNITY TO NEGOTIATE WITH RESPECT TO THE CHANGE.
 
    (B) ESTABLISHING ANY NEW SHIFT AT THE NEW ORLEANS AIR SUPPORT BRANCH
 WITHOUT AFFORDING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU,
 CHAPTER 168, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, A
 REASONABLE OPPORTUNITY TO NEGOTIATE CONCERNING THE PROCEDURES WHICH
 MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH A CHANGE AND ON APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE CHANGE.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST OF THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND
 NTEU, CHAPTER 168, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS
 EMPLOYEES, REESTABLISH AS THE STARTING AND QUITTING TIMES OF THE FIRST
 SHIFT AT THE NEW ORLEANS AIR SUPPORT BRANCH THOSE IN EXISTENCE PRIOR TO
 MARCH 25, 1979, AND AFFORD THE NATIONAL TREASURY EMPLOYEES UNION (NTEU)
 AND NTEU, CHAPTER 168, THE OPPORTUNITY TO NEGOTIATE WITH RESPECT TO ANY
 PROPOSED CHANGES THERETO.
 
    (B) UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
 UNION (NTEU) AND NTEU, CHAPTER 168, THE EXCLUSIVE BARGAINING
 REPRESENTATIVE OF ITS EMPLOYEES, CONCERNING THE PROCEDURES TO BE
 OBSERVED IN IMPLEMENTING THE SECOND SHIFT AT THE NEW ORLEANS AIR SUPPORT
 BRANCH AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
 AFFECTED
 BY THE ESTABLISHMENT OF THE SECOND SHIFT.
 
    (C) POST AT ITS FACILITIES AT THE NEW ORLEANS AIR SUPPORT BRANCH
 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 BY
 HIM/HER FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
 INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE DISTRICT DIRECTOR SHALL TAKE
 REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY ANY OTHER MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION
 VI, FEDERAL LABOR RELATIONS AUTHORITY, BRYAN AND ERVAY STREETS, ROOM
 450, DALLAS, TEXAS, 75221, 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., JUNE 16, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
              RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INSTITUTE ANY CHANGE IN THE STARTING AND QUITTING TIMES
 OF THE EXISTING FIRST SHIFT OF THE NEW ORLEANS AIR SUPPORT BRANCH
 WITHOUT AFFORDING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU,
 CHAPTER 168, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR EMPLOYEES,
 THE OPPORTUNITY TO NEGOTIATE WITH RESPECT TO THE CHANGE.
 
    WE WILL NOT ESTABLISH ANY NEW SHIFT AT THE NEW ORLEANS AIR SUPPORT
 BRANCH WITHOUT AFFORDING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU)
 AND NTEU, CHAPTER 168, A REASONABLE OPPORTUNITY TO NEGOTIATE CONCERNING
 THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH A
 CHANGE AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
 AFFECTED
 BY THE 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 OF THE NATIONAL TREASURY EMPLOYEES UNION (NTEU)
 AND NTEU, CHAPTER 168, REESTABLISH AS THE STARTING AND QUITTING TIMES OF
 THE FIRST SHIFT AT THE NEW ORLEANS AIR SUPPORT BRANCH THOSE IN EXISTENCE
 PRIOR TO MARCH 25, 1979, AND AFFORD THE NATIONAL TREASURY EMPLOYEES
 UNION (NTEU) AND NTEU, CHAPTER 168, THE OPPORTUNITY TO NEGOTIATE WITH
 RESPECT TO ANY PROPOSED CHANGES THERETO.
 
    WE WILL, UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
 UNION (NTEU) AND NTEU, CHAPTER 168, CONCERNING THE PROCEDURES TO BE
 OBSERVED IN IMPLEMENTING THE SECOND SHIFT AT THE NEW ORLEANS AIR SUPPORT
 BRANCH AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
 AFFECTED
 BY THE ESTABLISHMENT OF THE SECOND SHIFT.
 
                                 (AGENCY)
 
    DATED
 
                         BY:  (SIGNATURE) (TITLE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
 MATERIAL.  IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THE NOTICE OR
 COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, BRYAN
 AND ERVAY STREETS, ROOM 450, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE
 NUMBER IS (214) 767-4996.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    U.S. CUSTOMS SERVICE,
    REGION V,
    NEW ORLEANS, LOUISIANA
                                RESPONDENT
 
    AND
 
 
    NATIONAL TREASURY EMPLOYEES UNION
    (NTEU) AND NTEU, CHAPTER 168
                              CHARGING PARTY
 
                            CASE NO.: 6-CA-248
 
    ELIZABETH B. BRIGMAN, ESQUIRE
    FOR THE RESPONDENT
 
    SUSAN E. JELEN, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    BEFORE:  GARVIN LEE OLIVER
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., (THE STATUTE), AS A RESULT OF
 AN UNFAIR LABOR PRACTICE COMPLAINT DATED FEBRUARY 29, 1980 FILED BY THE
 REGIONAL DIRECTOR, SIXTH REGION, FEDERAL LABOR RELATIONS AUTHORITY,
 DALLAS, TEXAS, AGAINST THE U.S. CUSTOMS SERVICE, REGION V, NEW ORLEANS,
 LOUISIANA (RESPONDENT).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
 SECTIONS 7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY CHANGING THE
 STARTING AND QUITTING TIMES FOR EMPLOYEES IN THE AIR SUPPORT BRANCH
 WITHOUT AFFORDING NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU,
 CHAPTER 168 (THE UNION) AN OPPORTUNITY TO BARGAIN CONCERNING THE CHANGES
 AND/OR THEIR IMPACT AND IMPLEMENTATION.  RESPONDENT DENIED THE
 ALLEGATIONS.
 
    A HEARING WAS HELD IN THIS MATTER IN NEW ORLEANS, LOUISIANA.  THE
 RESPONDENT AND THE GENERAL COUNSEL WERE REPRESENTED BY COUNSEL AND
 AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, EXAMINE
 AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING BRIEFS.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  THE NEW ORLEANS AIR SUPPORT BRANCH IS A SUBDIVISION OF THE
 RESPONDENT.  ITS MISSION IS TO INTERDICT THE SMUGGLING OF CONTRABAND AND
 NARCOTICS INTO THE UNITED STATES BY AIRCRAFT, SUPPORT THE LAND AND
 MARINE BRANCHES OF THE CUSTOMS SERVICE BY AIR SURVEILLANCE OF SUSPECTED
 VEHICLES OR VESSELS, AND ASSIST OTHER FEDERAL AND STATE LAW ENFORCEMENT
 AGENCIES AS REQUIRED.  IT HAS ONE OFFICE IN BELLE CHASSE, LOUISIANA, BUT
 OPERATES THROUGHOUT A SIX STATE AREA, INCLUDING ARKANSAS, LOUISIANA,
 MISSISSIPPI, ALABAMA, TENNESSEE, AND PART OF FLORIDA.
 
    2.  THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT
 OF EMPLOYEES, INCLUDING PILOTS AND AIR OFFICERS WITHIN THE AIR SUPPORT
 BRANCH.
 
    3.  AT ALL RELEVANT TIMES, APPROXIMATELY FOUR AIR OFFICERS AND FIVE
 TO SEVEN PILOTS WERE STATIONED AT THE AIR SUPPORT BRANCH.  THEY SERVED
 UNDER THE DIRECTION OF THE CHIEF, AIR SUPPORT BRANCH AND TWO
 SUPERVISORS.  THE AIR SUPPORT BRANCH UTILIZED BETWEEN FIVE AND SEVEN
 AIRCRAFT.
 
    4.  PRIOR TO MARCH 25, 1979 ALL EMPLOYEES WORKED FROM 8:00 A.M. TO
 4:00 P.M., MONDAY THROUGH FRIDAY.  THERE WAS NO ESTABLISHED PLAN FOR
 WORKING NIGHTS AND WEEKENDS.  (TR. 13).  BETWEEN 1975 AND LATE 1976 A
 VOLUNTARY PAGER/BEEPER SYSTEM TO COVER COMMUNICATIONS DURING OFF-DUTY
 HOURS WAS IMPLEMENTED BY AGREEMENT BETWEEN THE RESPONDENT AND THE
 UNION.
  (TR.  17-18).  THIS PROGRAM WAS ABANDONED WHEN EMPLOYEES OBJECTED TO
 CARRYING THE PAGERS WITHOUT ANY COMPENSATION.  (TR. 67-68).  IN 1978 A
 MANAGEMENT PROPOSAL FOR A PILOT AND AN AIR OFFICER TO CARRY A PAGER AND
 BE ON CALL AFTER HOURS FOR A SEVEN DAY PERIOD WAS WITHDRAWN WHEN THE
 UNION INSISTED ON COMPENSATION FOR THE RESTRICTIONS ON EMPLOYEE
 ACTIVITIES NECESSARILY INVOLVED IN SUCH A PROGRAM.  (TR. 19-21).
 
    5.  AFTER THE ABANDONMENT OF THE VOLUNTARY PAGER SYSTEM, IT BECAME
 DIFFICULT FOR SUPERVISORS TO OBTAIN PILOTS TO FLY SUPPORT MISSIONS AFTER
 NORMAL HOURS AND ON WEEKENDS.  THE AIR SUPPORT BRANCH RECEIVED
 COMPLAINTS FROM THE DISTRICTS REGARDING ITS FAILURE TO PROVIDE SUCH AIR
 SUPPORT.  (TR. 68-69).
 
    6.  RAYMOND HALFACRE, CHIEF OF THE AIR SUPPORT BRANCH, DETERMINED
 THAT THE GREATEST NUMBER OF REQUESTS FOR AIR SUPPORT CAME IN BETWEEN 10
 A.M. AND 10 P.M. (TR. 70).  THE NUMBER OF FLIGHTS WAS AT ITS PEAK
 BETWEEN 2 P.M. AND 6 P.M.  HALFACRE DETERMINED THAT NOT AS MANY REQUESTS
 CAME IN FOR AIR SUPPORT FROM 8 A.M. TO 10 A.M.; THAT A 10 A.M. STARTING
 TIME FOR THE DAY SHIFT WOULD ALSO ELIMINATE SOME WASTED COMMUTER TIME
 FOR EMPLOYEES TRAVELING OUT OF TOWN, AND WOULD COINCIDE WITH THE WORKING
 HOURS OF SOME STATE AGENCIES WITH WHOM RESPONDENT MAINTAINED LIAISON.
 (TR. 74-75).
 
    7.  HALFACRE RECEIVED APPROVAL FROM THE REGIONAL COMMISSIONER TO
 CHANGE THE WORKING HOURS OF THE AIR SUPPORT BRANCH FROM ONE SINGLE EIGHT
 HOUR SHIFT, FROM 8 A.M. TO 4 P.M. FOR ALL EMPLOYEES, TO A SYSTEM WHICH
 CONSISTED OF TWO SHIFTS, ONE BEGINNING AT 10 A.M. AND ENDING AT 6 P.M.,
 MONDAY THROUGH FRIDAY, FOR ALL EMPLOYEES EXCEPT TWO PILOTS, AND A SECOND
 SHIFT FROM 2 P.M. TO 10 P.M. UTILIZING ONLY TWO PILOTS.  THE SECOND
 SHIFT WOULD INCLUDE WORK ON SATURDAYS AND SUNDAYS WITH DAYS OFF FOR
 PERSONNEL SCHEDULED DURING THE WEEK.  (TR. 70-75;  JOINT EX. 1(B)).
 
    8.  ON NOVEMBER 1, 1978 RESPONDENT NOTIFIED THE UNION CHAPTER
 PRESIDENT OF THE PLAN TO CHANGE DUTY HOURS.  (JOINT EX. 1(A)).  BY
 LETTER DATED NOVEMBER 6, 1978 THE UNION REQUESTED TO NEGOTIATE ON THE
 CHANGES AND THEIR IMPLEMENTATION.  (JOINT EX. 2).
 
    9.  THE PARTIES WERE UNABLE TO MEET UNTIL DECEMBER 22, 1978 DUE TO
 CONFLICTING SCHEDULES.  (TR. 94).  AT THIS INFORMATIONAL-TYPE MEETING,
 RESPONDENT EXPLAINED THE PROPOSAL, BUT WAS UNABLE TO ANSWER CERTAIN
 QUESTIONS POSED BY THE UNION.  IT WAS AGREED THAT THE UNION WOULD SUBMIT
 ITS QUESTIONS IN WRITING TO PERMIT RESEARCH AND A LATER RESPONSE.  (TR.
 22-23;  95-96).
 
    10.  THE UNION PREPARED AND SUBMITTED A LIST OF QUESTIONS DATED
 DECEMBER 29, 1978.  RESPONDENT ALSO SUGGESTED IN ITS REPLY THAT THE
 PARTIES MEET ON FEBRUARY 12, 1979 TO RESUME NEGOTIATIONS, AND THAT IT BE
 ADVISED OF ANY COUNTERPROPOSALS OR ADDITIONAL AREAS OF CONCERN PRIOR TO
 THAT DATE.  ONE OF RESPONDENT'S NEGOTIATORS WAS UNAVAILABLE THE FIRST
 WEEK IN FEBRUARY.  (TR. 100;  JOINT EX. 3 AND 4).
 
    11.  THE UNION MADE NO RESPONSE TO THE FEBRUARY 12, 1979 SUGGESTED
 MEETING DATE.  (TR. 98).  OSCAR VERA, ASSOCIATE CHIEF STEWARD OF THE
 UNION, TESTIFIED THAT HE AND VARIOUS OTHER UNION OFFICIALS CONTACTED
 RESPONDENT ORALLY WITH ADDITIONAL QUESTIONS, BUT DID NOT DO SO IN
 WRITING.  VERA DID NOT TESTIFY AS TO THE DATES OR THE NATURE OF SUCH
 QUESTIONS.  (TR. 40).  ART BORREGO, LABOR RELATIONS SPECIALIST FOR
 RESPONDENT, RECALLED NO ORAL REQUESTS FOR INFORMATION DURING THIS
 PERIOD.  (TR. 97).
 
    12.  DURING THE PERIOD FRIDAY, FEBRUARY 16 AND TUESDAY, FEBRUARY 20,
 1979, ART BORREGO, LABOR RELATIONS SPECIALIST FOR RESPONDENT, CONTACTED
 LOCAL UNION OFFICIALS AND UNION OFFICIALS IN AUSTIN, TEXAS IN AN EFFORT
 TO DETERMINE WHO WOULD REPRESENT THE UNION IN THE NEGOTIATIONS AND WHEN
 THEY COULD BE SCHEDULED.  THE LOCAL UNION WAS INSISTING ON PARTICIPATION
 BY THE REGIONAL UNION REPRESENTATIVES IN ORDER TO PROTECT THE RIGHTS OF
 OTHER CHAPTERS IN THE REGION, BUT THE REGIONAL REPRESENTATIVES INDICATED
 THAT THEY WERE UNABLE TO COME TO NEW ORLEANS ANYTIME SOON.  MR. BORREGO
 REQUESTED THAT THE LOCAL UNION RESOLVE THE PROBLEM AND CONTACT HIM.  MR.
 LEROY ROBERTSON, CHIEF STEWARD, ADVISED MR. BORREGO ON FEBRUARY 20, 1979
 THAT THEY WOULD RESOLVE THE MATTER IN A DAY OR TWO AND ADVISE HIM OF THE
 OUTCOME.  (TR. 97-100).
 
    13.  ON FEBRUARY 28, 1979, OSCAR VERA, ASSOCIATE CHIEF STEWARD OF THE
 UNION, ADVISED RESPONDENT BY LETTER, "AS I HAVE PREVIOUSLY STATED ON
 BEHALF OF NTEU CHAPTER 168, MR. JIM THORNTON OR MR. ROB ROBERTSON OF THE
 AUSTIN NTEU OFFICE WILL BE ABLE TO SCHEDULE THE MEETING WITH YOU AT THE
 EARLIEST POSSIBLE DATE." THE LETTER MADE NO REFERENCE TO A PROPOSED
 DATE.  (TR. 101;  JOINT EX. 5).
 
    14.  BY LETTER DATED MARCH 6, 1979 RESPONDENT ADVISED THE UNION THAT
 THE CHANGE IN DUTY HOURS AND THE ESTABLISHMENT OF THE SECOND SHIFT WOULD
 BE IMPLEMENTED ON MARCH 25, 1979.  RESPONDENT ALSO STATED, "IF NTEU
 WISHES TO RESUME NEGOTIATIONS ON THE PROPOSAL, MANAGEMENT IS PREPARED TO
 MEET AT ANY TIME PRIOR TO THE IMPLEMENTATION DATE.  THE
 IMPLEMENTATION.DATE SPECIFIED ABOVE WILL NO LONGER BE POSTPONED." (TR.
 102-103;  JOINT EX. 6).  AS A RESULT OF THIS LETTER, A BARGAINING DATE
 OF MARCH 22, 1979 WAS AGREED UPON.  (TR. 25, 103).
 
    15.  THE PARTIES MET ON THURSDAY, MARCH 22, 1979.  THE UNION'S
 POSITION WAS THAT THE STARTING AND QUITTING TIMES OF BOTH SHIFTS WERE
 NEGOTIABLE.  RESPONDENT'S POSITION WAS THAT THE STARTING AND QUITTING
 TIMES OF THE FIRST SHIFT WAS NEGOTIABLE, BUT NOT THE STARTING AND
 QUITTING TIMES OF THE SECOND SHIFT.  (TR. 29).  THE UNION MADE A
 PROPOSAL THAT THE PLAN BE FOR A TRIAL PERIOD AND THAT AN AIR OFFICER BE
 ASSIGNED TO THE SECOND SHIFT.  RESPONDENT REPLIED THAT IT WOULD BE
 AMENABLE TO A TRIAL PERIOD, BUT NOT TO AN AIR OFFICER ON THE SECOND
 SHIFT, AS THE TYPE OF POSITIONS ON A TOUR OF DUTY IS A PREROGATIVE OF
 MANAGEMENT.  (TR. 104).  THE UNION WAS CONCERNED ABOUT THE PLAN'S EFFECT
 ON AN FAA WAIVER, WHICH PERMITTED CUSTOMS' AIRCRAFT TO FLY WITH LIGHTS
 OFF, IF IN HOT PURSUIT OF OTHER AIRCRAFT, AND ALSO TO FLY BELOW 1,000
 FEET FOR IDENTIFICATION PURPOSES, SO LONG AS A COMPETENT OBSERVER WAS
 ABOARD IN ADDITION TO THE PILOT, IN ORDER TO MAINTAIN A SAFE SEPARATION.
  (TR. 26-27;  65-66).  THE UNION'S POSITION WAS THAT ONLY AN AIR OFFICER
 WAS QUALIFIED AND COMPETENT.  MANAGEMENT'S POSITION, ALLEGEDLY BASED ON
 AN FAA INTERPRETATION, WAS THAT ANY PERSON WHO COULD SEE AND HEAR WAS A
 COMPETENT OBSERVER.  (TR. 28, 66).  BARGAINING ALSO TOOK PLACE ON
 VARIOUS IMPACT ISSUES, INCLUDING HOW THE SHIFT WOULD AFFECT PILOTS
 TAKING COLLEGE COURSES, HOW THE PILOTS WOULD CONTINUE TO PERFORM WORK
 RELATING TO THEIR GEOGRAPHICAL AREAS OF RESPONSIBILITY, AND METHODS FOR
 THE EXCHANGING OF TOURS OF DUTY.  (TR. 29;  104-105).  THE PARTIES WERE
 UNABLE TO REACH AGREEMENT ON SEVERAL OF THESE ISSUES.  CONSEQUENTLY, A
 FEDERAL MEDIATOR WAS CALLED IN TO ASSIST IN THE NEGOTIATIONS.  (TR. 30).
 
    16.  THE NEGOTIATIONS CONTINUED ON FRIDAY, MARCH 23, 1979 WITH THE
 SERVICES OF THE MEDIATOR.  THE UNION PRESENTED A PROPOSAL CONCERNING THE
 HOURS OF BOTH SHIFTS.  RESPONDENT REPLIED THAT THEY WERE HOLDING TO THE
 10 A.M. STARTING TIME FOR THE FIRST SHIFT, AND THAT THE STARTING TIMES
 FOR THE SECOND SHIFT WERE NON-NEGOTIABLE.  (TR. 105-106).  THE PARTIES
 THEN LEFT BARGAINING ON THE HOURS FOR LATER AND BARGAINED ON THE OTHER
 ITEMS.  (TR. 31, 106).  AT THE END OF THE DAY, THE PARTIES WERE STILL
 UNABLE TO REACH AGREEMENT OVER WHAT CONSTITUTED A COMPETENT OBSERVER
 UNDER THE FAA WAIVER, HOW PILOTS WOULD CONTINUE TO WORK THEIR
 GEOGRAPHICAL AREAS, AND OTHER ISSUES.  (TR. 31-32, 107).  AT THE END OF
 THE SESSION ON FRIDAY THE UNION REQUESTED THAT THE IMPLEMENTATION OF THE
 CHANGE IN HOURS BE DELAYED UNTIL NEGOTIATIONS COULD BE COMPLETED.
 RESPONDENT REFUSED TO DELAY IMPLEMENTATION.  (TR. 107).
 
    17.  ON SUNDAY, MARCH 25, 1979 THE PLAN FOR CHANGING THE HOURS AND
 ADDING A SECOND SHIFT WAS IMPLEMENTED.  ONE SHIFT OPERATED MONDAY
 THROUGH FRIDAY FROM 10 A.M. TO 6 P.M., UTILIZING FOUR PILOTS AND FOUR
 AIR OFFICERS, AND A SECOND SHIFT OPERATED FROM 2 P.M. TO 10 P.M., SEVEN
 DAYS A WEEK, UTILIZING TWO PILOTS.  THE PILOTS WERE ASSIGNED THE SECOND
 SHIFT FOR A PAY PERIOD, OR TWO WEEKS.  (TR. 32-33, 107;  JOINT EX. 8).
 
    18.  ALTHOUGH THE RESPONDENT IMPLEMENTED ITS PLAN ON SUNDAY, MARCH
 25, 1979, THE PARTIES CONTINUED TO MEET.  THEY MET AGAIN ON MARCH 27,
 1979 AND ON APRIL 2, 1979.  DURING THE MARCH 27, 1979 MEETING THE
 PARTIES CONTINUED NEGOTIATIONS ON ALL OUTSTANDING ISSUES, BUT PRIMARILY
 ON ISSUES OTHER THAN THE STARTING AND QUITTING TIMES.  (TR. 38, 108).
 THE UNION MADE SOME PROPOSALS CONCERNING THE ROTATION OF AIR OFFICER
 OVERTIME.  (TR. 38).
 
    19.  THE MEETING BETWEEN THE PARTIES ON APRIL 2, 1979 DEALT PRIMARILY
 WITH THE STARTING AND QUITTING TIMES.  (TR. 39;  108).  THE UNION
 PRESENTED FOUR DIFFERENT PROPOSALS CONCERNING THE STARTING AND QUITTING
 TIMES.  THE UNION'S PROPOSALS CALLED FOR GREATER COVERAGE DURING THE DAY
 AND FOR SOME EMPLOYEES TO BEGIN WORK EARLIER IN THE MORNING.  (TR. 40).
 RESPONDENT REPLIED THAT IT WAS HOLDING TO ITS POSITION IN TERMS OF THE
 HOURS FOR THE FIRST SHIFT AND REITERATED THAT THE HOURS OF THE SECOND
 SHIFT WERE NON-NEGOTIABLE.  (TR. 111).  OSCAR VERA, ASSOCIATE CHIEF
 STEWARD OF THE UNION, THEN ASKED ART BORREGO, LABOR RELATIONS SPECIALIST
 FOR RESPONDENT, IF THE PARTIES WERE GOING TO NEGOTIATE THE STARTING AND
 QUITTING TIMES ON THE FIRST SHIFT.  BORREGO REPLIED THAT THEY WERE NOT
 AND REFUSED TO NEGOTIATE THE STARTING AND QUITTING TIMES OF ANY OF THE
 SHIFTS.  (TR. 40-41, 111).  RESPONDENT PROPOSED THAT THE PARTIES MEET
 AGAIN ON APRIL 6, 1979 AT WHICH TIME RESPONDENT WOULD PRESENT ITS
 POSITION CONCERNING THE VARIOUS PROPOSALS THAT HAD BEEN DISCUSSED DURING
 THE COURSE OF THE NEGOTIATIONS.  (TR. 109).  VERA ADVISED RESPONDENT
 THAT BECAUSE OF THE FACT THAT MANAGEMENT HAD UNILATERALLY IMPLEMENTED
 ITS PLAN AND REFUSED TO NEGOTIATE ON THE STARTING AND QUITTING TIMES,
 THE UNION WOULD NOT CONTINUE TO MEET WITH RESPONDENT.  (TR. 41, 113).
 
    20.  ON APRIL 9, 1979 RESPONDENT SENT THE UNION A LETTER SETTING
 FORTH RESPONDENT'S POSITION ON EACH OF THE PROPOSALS WHICH IT BELIEVED
 HAD BEEN PRESENTED BY THE UNION DURING THE BARGAINING SESSIONS.
 RESPONDENT CONTENDED THAT NINE OF THE UNION PROPOSALS WERE
 NON-NEGOTIABLE UNDER SECTION 7106 OF THE STATUTE BECAUSE THEY INFRINGED
 VARIOUSLY ON MANAGEMENT'S RESERVED RIGHTS TO DETERMINE THE NUMBER AND
 TYPES OF POSITIONS ASSIGNED TO A TOUR OF DUTY, DIRECT AND ASSIGN WORK,
 TAKE DISCIPLINARY ACTION, DETERMINE THE BUDGET AND THE TECHNOLOGY,
 METHODS, AND MEANS OF PERFORMING WORK.  (JOINT EX. 7, UNION PROPOSALS
 I(A), I(C), III, IV, VII, IX, X, XII, AND XIII.) SEVEN OF THE PURPORTED
 UNION PROPOSALS DEALT WITH PROCEDURES FOR EXCHANGING ASSIGNMENTS,
 SCHEDULING SHIFTS FOR EMPLOYEES ATTENDING COLLEGE CLASSES, GRANTING
 ANNUAL LEAVE, SIGNING OUT UPON LEAVING THE PREMISES, PAYING TRAVEL
 EXPENSES AND OVERTIME, AND MAKING OVERTIME RECORDS AVAILABLE TO THE
 UNION.  AS TO THESE SEVEN ITEMS, RESPONDENT PRESENTED A COUNTERPROPOSAL
 TO EACH OF THE UNION'S PROPOSALS.  (JOINT EX. 7, UNION PROPOSALS I(B),
 I(D), II, V. VI, VIII, AND XI.)
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    I.  THE DECISION.
 
    THE GENERAL COUNSEL ALLEGES THAT RESPONDENT VIOLATED SECTIONS
 7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY CHANGING THE STARTING
 AND QUITTING TIMES FOR EMPLOYEES IN THE AIR SUPPORT BRANCH WITHOUT
 AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN CONCERNING THE CHANGES.
 RESPONDENT REPLIES THAT THE STARTING AND QUITTING TIMES FOR THE SHIFTS
 WERE WITHIN THE AMBIT OF SECTION 7106(B)(1) OF THE STATUTE WHICH IS
 NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY.
 
    SECTION 7106(B)(1) OF THE STATUTE PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING --
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON THE
 
    TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK . . .
 
    THE CLEAR MEANING OF THIS SECTION IS TO RENDER THE NUMBERS, TYPES,
 AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED TO A TOUR OF DUTY
 NEGOTIABLE AT THE AGENCY'S ELECTION.  FURTHER, A PROPOSAL OTHERWISE
 CONSISTENT WITH THE STATUTE, WHICH, BY ITS DIRECT OR INTEGRAL
 RELATIONSHIP TO THE NUMBERS, TYPES, OR GRADES OF EMPLOYEES OR POSITIONS
 ASSIGNED TO A TOUR OF DUTY, WOULD BE DETERMINATIVE OF SUCH NUMBERS,
 TYPES OR GRADES, LIKEWISE WOULD BE NEGOTIABLE AT THE ELECTION OF THE
 AGENCY.  NATIONAL EMPLOYEES UNION CHAPTER 66 AND INTERNAL REVENUE
 SERVICE, KANSAS CITY SERVICE CENTER, 1 FLRA NO. 106 (1979).
 
    THE RECORD INDICATES THAT THE ACTIVITY HEREIN, BASED AT A SINGLE
 LOCATION, IS RESPONSIBLE FOR PROVIDING AIR SUPPORT THROUGHOUT A SIX
 STATE REGION.  TEN MEMBERS OF THE BARGAINING UNIT, SIX PILOTS AND FOUR
 AIR OFFICERS, WERE DIRECTLY INVOLVED IN THIS EFFORT.  THE GREATEST
 NUMBER OF REQUESTS FOR AIR SUPPORT CAME IN BETWEEN 10 A.M. AND 10 P.M.
 WITH A PEAK PERIOD OF 2 P.M. TO 6 P.M.
 
    IN ORDER TO MEET THIS RESPONSIBILITY THE ACTIVITY WAS REQUIRED TO
 ESTABLISH AND CHANGE TOURS OF DUTY WITH SUFFICIENT NUMBERS AND TYPES OF
 PERSONNEL TO PROVIDE THE REQUISITE COVERAGE.  THE FOLLOWING HOLDING OF
 THE FEDERAL LABOR RELATIONS COUNCIL, WITH REGARD TO SECTION 11(B) OF
 EXECUTIVE ORDER 11491, IN AFGE LOCAL 1940 AND PLUM ISLAND ANIMAL DISEASE
 LABORATORY DEPARTMENT OF AGRICULTURE, GREENPORT, NEW YORK, FLRC NO.
 71A-11, 1 FLRC 100 (1971) IS EQUALLY APPLICABLE TO SECTION 7106(B)(1) OF
 THE STATUTE IN THIS INSTANCE:
 
    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 'NUMBERS,
 
    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 OF DUTY.  TO HOLD OTHERWISE, I.E.
 TO INTERPRET SECTION 11(B)
 
    AS SANCTIONING THE RIGHT OF THE AGENCY TO DETERMINE THE COMPOSITION
 OF THE SHIFT OR TOUR AND
 
    NOT THE FRAMEWORK UPON WHICH THAT COMPOSITION DEPENDS, WOULD RENDER
 THE PROVISIONS OF SECTION
 
    11(B) VIRTUALLY MEANINGLESS.
 
    IN THE INSTANT CASE THE CHANGE IN SHIFTS ALSO AFFECTED BOTH THE
 NUMBER AND TYPE OF EMPLOYEES ASSIGNED TO EACH SHIFT.  UNDER THE PREVIOUS
 8 A.M. TO 4 P.M. TOUR OF DUTY, ALL PILOTS AND AIR OFFICERS WERE ASSIGNED
 TO A SINGLE SHIFT.  UNDER THE NEW TOURS OF DUTY, TWO PILOTS AND NO AIR
 OFFICERS WERE ASSIGNED TO THE SECOND SHIFT, AND ALL REMAINING EMPLOYEES
 WERE ASSIGNED TO THE FIRST SHIFT.  AS THE FEDERAL LABOR RELATIONS
 COUNCIL STATED IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF
 THE TREASURY, U.S. CUSTOMS SERVICE, REGION VII, FLRC NO.  76A-28, 5 FLRC
 249, 259-260 (1977):
 
    (T)HE COUNCIL HAS CONSISTENTLY RULED THAT MATTERS RELATED TO AN
 AGENCY'S "STAFFING
 
    PATTERNS" ARE EXCEPTED FROM AN AGENCY'S BARGAINING OBLIGATION.  MORE
 SPECIFICALLY, THAT AN
 
    AGENCY IS NOT REQUIRED TO NEGOTIATE ON EITHER THE NUMBER OF SHIFTS OR
 THE ORGANIZATIONAL
 
    STRUCTURE OF ACTIVITIES WITHIN THOSE SHIFTS, VIZ., THE NUMBER OF
 EMPLOYEES, OR THE NUMBER OR
 
    CATEGORIES OF POSITIONS OR EMPLOYEES ASSIGNED TO ORGANIZATIONAL
 UNITS, WORK PROJECTS OR TOURS
 
    OF DUTY.  . . .  FURTHER, THE AGENCY IS NOT OBLIGATED TO NEGOTIATE ON
 THE NATURE OF THE WORK
 
    TO BE PERFORMED ON EACH SHIFT OR THE TASKS TO BE ASSIGNED VARIOUS JOB
 CATEGORIES AND
 
    ACCOMPLISHED ON THE RESPECTIVE SHIFTS.
 
    IT IS CONCLUDED, THEREFORE, THAT RESPONDENT'S ESTABLISHMENT OF NEW
 TOURS OF DUTY, THE DESIGNATION OF THEIR DURATION, I.E. THEIR STARTING
 AND QUITTING TIMES, AND THE NUMBER AND TYPES OF EMPLOYEES ASSIGNED
 THERETO WERE SO DIRECTLY AND INTEGRALLY RELATED TO THE ACTIVITY'S
 STAFFING PATTERNS -- I.E., THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
 ASSIGNED AS TO BE DETERMINATIVE OF SUCH NUMBERS, TYPES AND GRADES AND
 THEREFORE WERE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY.  AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3669, AFL-CIO AND VETERANS
 ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 2 FLRA NO. 78
 (1980).  CF. VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY,
 A/SLMR NO. 1051, 8 A/SLMR 596 (1978);  VETERANS ADMINISTRATION HOSPITAL
 A/SLMR NO. 1083, 8 A/SLMR 787 (1978);  VETERANS ADMINISTRATION HOSPITAL,
 SHERIDAN, WYOMING, A/SLMR NO. 952, 7 A/SLMR 1077 (1977);  HEADQUARTERS,
 63RD AIR BASE GROUP, USAF, NORTON AIR FORCE BASE, CALIFORNIA, A/SLMR NO.
 761, 6 A/SLMR 679 (1976);  ALABAMA NATIONAL GUARD, A/SLMR NO. 660, 6
 A/SLMR 267 (1976).
 
    THE RECORD REFLECTS THAT RESPONDENT DID, DURING THE NEGOTIATIONS,
 INDICATE THAT IT WOULD BARGAIN ON THE HOURS FOR THE FIRST SHIFT, AND
 THEN, LATER ON IN THE NEGOTIATIONS, REFUSED TO CONTINUE TO DO SO.  SINCE
 THE DECISION TO CHANGE THE HOURS AND STAFFING OF THE FIRST SHIFT WAS, IN
 THIS INSTANCE, NEGOTIABLE ONLY AT THE AGENCY'S ELECTION, RESPONDENT WAS
 COMPLETELY FREE TO CHANGE ITS MIND.  SEE NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 66, SUPRA, 1 FLRA NO. 106 AT FN. 2;  AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 3669, AFL-CIO, SUPRA, 2 FLRA NO. 78 AT
 FN. 4.
 
    ACCORDINGLY, RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1) AND (5) OF
 THE STATUTE BY FAILING TO AFFORD THE UNION AN OPPORTUNITY TO BARGAIN ON
 ITS DECISION TO CHANGE THE STARTING AND QUITTING TIMES, AS ALLEGED.
 
    II.  IMPACT AND IMPLEMENTATION.
 
    THE GENERAL COUNSEL ALSO ALLEGES THAT RESPONDENT VIOLATED SECTIONS
 7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY CHANGING THE STARTING
 AND QUITTING TIMES FOR EMPLOYEES IN THE AIR SUPPORT BRANCH WITHOUT
 AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN ON THE IMPACT AND
 IMPLEMENTATION OF THE CHANGES.  SECTION 7106(B)(2) ADN (3) OF THE
 STATUTE PROVIDES THAT MANAGEMENT HAS A DUTY TO BARGAIN ON PROCEDURES
 WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING ITS RIGHT AND ON
 APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF THE RIGHT.
 
    RESPONDENT ASSERTS THAT THE UNION WAS NOTIFIED OF THE AGENCY'S PLAN
 TO ESTABLISH NEW TOURS OF DUTY ON NOVEMBER 1, 1978, AND SINCE RESPONDENT
 DID NOT IMPLEMENT SUCH CHANGES UNTIL MARCH 25, 1979, THE UNION HAD MORE
 THAN AN AMPLE OPPORTUNITY TO EXERCISE ITS RIGHTS UNDER SECTION
 7106(B)(2) AND (3).  RESPONDENT CONTENDS THAT THE CONTINUOUS DELAYS
 CREATED AND REQUESTED BY THE UNION WERE AN ATTEMPT TO KEEP THE AGENCY
 FROM ACTING AT ALL, AND THAT THE UNION'S REQUEST THAT IMPLEMENTATION BE
 DELAYED UNTIL NEGOTIATIONS WERE COMPLETED WAS ALSO UNREASONABLE IN LIGHT
 OF THE TIME THAT HAD ALREADY ELAPSED.
 
    THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO NEGOTIATE IN
 GOOD FAITH INCLUDES THE OBLIGATION, UNDER SECTION 7114(B)(2) AND (3) OF
 THE STATUTE "(2) TO BE REPRESENTED AT THE NEGOTIATIONS BY DULY
 AUTHORIZED REPRESENTATIVES PREPARED TO DISCUSS AND NEGOTIATE ON ANY
 CONDITION OF EMPLOYMENT;" AND "(3) TO MEET AT REASONABLE TIMES AND
 CONVENIENT PLACES AS FREQUENTLY AS MAY BE NECESSARY, AND TO AVOID
 UNNECESSARY DELAYS".
 
    ALTHOUGH RESPONDENT NOTIFIED THE UNION OF THE AGENCY'S PLAN TO
 ESTABLISH A NEW TOUR OF DUTY ON NOVEMBER 1, 1978, NO EVIDENCE OF
 UNNECESSARY DELAY ON THE PART OF THE UNION CAN BE FOUND BEFORE FEBRUARY
 12, 1979.  PRIOR TO THIS DATE, THE PARTIES HAD MET ON THE MUTUALLY
 AGREEABLE DATE OF DECEMBER 22, 1978 FOR AN INFORMATIONAL MEETING;
 RESPONDENT HAD RESPONDED TO THE UNION'S REQUEST FOR INFORMATION
 REGARDING THE PROPOSAL ON THAT DATE AND BY LETTER ON JANUARY 25, 1979;
 AND THE FIRST SUBSEQUENT DATE AFTER THIS RESPONSE WHICH WAS PROPOSED BY
 RESPONDENT FOR A MEETING WAS FEBRUARY 12, 1979.
 
    THE PERIOD FROM FEBRUARY 12, 1979 TO MARCH 6, 1979 DOES NOT REFLECT
 WELL ON THE UNION, ALTHOUGH NO "UNNECESSARY DELAY" CAN BE FOUND.  THERE
 WAS CONSIDERABLE CONFUSION ON THE UNION'S PART DURING THIS THREE-WEEK
 PERIOD REGARDING WHO WOULD REPRESENT IT IN THE NEGOTIATIONS AND WHEN
 SUCH NEGOTIATORS WOULD BE AVAILABLE TO MEET WITH RESPONDENT.  ALTHOUGH
 THE UNION'S FAILURE TO RESOLVE ITS PROBLEMS DURING THIS THREE-WEEK
 PERIOD IS NOT CONDONED, IT CANNOT BE CONCLUDED, ON THE BASIS OF THE
 RECORD, THAT THERE WAS A DELIBERATE ATTEMPT TO DELAY THE NEGOTIATIONS OR
 THAT THE DELAYS WERE "UNNECESSARY." THE LOCAL UNION FELT IT NEEDED THE
 ASSISTANCE OF THE REGIONAL UNION REPRESENTATIVES IN ORDER TO PROTECT THE
 RIGHTS OF OTHER CHAPTERS IN THE REGION.  RESPONDENT APPEARS TO HAVE
 RECOGNIZED THE REASONABLENESS OF THIS REQUEST, AT LEAST IN PART, SINCE
 IT ALSO CONTACTED SUCH REGIONAL UNION OFFICIALS IN AN EFFORT TO SCHEDULE
 A DATE FOR THE NEGOTIATIONS.
 
    THE NEXT TIME PERIOD TO BE CONSIDERED WAS FROM MARCH 6, 1979 TO MARCH
 22, 1979.  THE UNION CONTACTED RESPONDENT PROMPTLY AFTER RESPONDENT'S
 MARCH 6, 1979 LETTER, AND A MARCH 22, 1979 DATE WAS AGREED UPON FOR
 NEGOTIATIONS.  THERE IS NO EVIDENCE THAT THE UNION WAS RESPONSIBLE FOR
 ANY "UNNECESSARY DELAY" AT THIS TIME IN THE ESTABLISHMENT OF THE MARCH
 22, 1979 DATE.
 
    THE PARTIES MET ON THURSDAY, MARCH 22, 1979 AND FRIDAY, MARCH 23,
 1979.  THE RECORD REFLECTS THAT BARGAINING TOOK PLACE ON VARIOUS ISSUES
 BEARING ON THE IMPACT AND IMPLEMENTATION OF THE PROPOSAL FOR NEW TOURS
 OF DUTY, SUCH AS HOW THE LATE SHIFT WOULD AFFECT PILOTS TAKING COLLEGE
 COURSES, HOW THE PILOTS WOULD CONTINUE TO PERFORM WORK RELATING TO THEIR
 GEOGRAPHICAL AREAS OF RESPONSIBILITY, AND METHODS FOR THE EXCHANGING OF
 TOURS OF DUTY.  A FEDERAL MEDIATOR WAS CALLED IN LATE ON THURSDAY AND
 ASSISTED THE PARTIES IN THEIR NEGOTIATIONS ON BOTH DATES.  AT THE END OF
 THE SESSION ON FRIDAY, THE UNION REQUESTED THAT THE ANNOUNCED
 IMPLEMENTATION DATE FOR THE CHANGES IN THE TOURS OF DUTY BE DELAYED
 UNTIL NEGOTIATIONS COULD BE COMPLETED.  RESPONDENT REFUSED TO DELAY
 IMPLEMENTATION, AND THE NEW TOURS OF DUTY WENT INTO EFFECT TWO DAYS
 LATER ON SUNDAY, MARCH 25, 1979.
 
    A DELAY IN IMPLEMENTATION OF THE NEW TOURS OF DUTY IN ORDER TO PERMIT
 THE PARTIES TO NEGOTIATE FULLY ON PROCEDURES AND ON APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED WOULD HAVE BEEN
 CONSISTENT
 WITH THE STATUTE AND WOULD NOT HAVE PREVENTED THE RESPONDENT FROM ACTING
 AT ALL.  THE AUTHORITY, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE
 EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA NO. 16 (1979), NOTED THAT
 CONGRESS SPECIFICALLY REJECTED A PROVISION WHICH PROVIDED THAT
 NEGOTIATION ON PROCEDURES SHOULD NOT "UNREASONABLY DELAY" SO AS TO
 "NEGATE" THE EXERCISE OF MANAGEMENT'S RESERVED RIGHTS, AND HELD THAT
 SUBSECTION (B)(3) IS INTENDED TO AUTHORIZE AN EXCLUSIVE REPRESENTATIVE
 TO NEGOTIATE FULLY ON PROCEDURES, EXCEPT TO THE EXTENT THAT SUCH
 NEGOTIATIONS WOULD PREVENT AGENCY MANAGEMENT FROM ACTING AT ALL.  SEE
 ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE
 LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA NO. 77
 (1980) AT P. 22.  IN NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS
 SERVICE, REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA NO. 30 (1979),
 THE AUTHORITY HELD THAT A UNION PROPOSAL WHICH WOULD ALLOW EMPLOYEES
 TIME TO HAVE THEIR NAMES DELETED FROM LOCAL TELEPHONE DIRECTORIES BEFORE
 A NAMEPLATE TEST PROGRAM COULD BE PUT INTO EFFECT WOULD NOT VIOLATE
 SECTION 7106(B) OF THE STATUTE EVEN THOUGH IT MIGHT DELAY IMPLEMENTATION
 OF THE TEST PROGRAM FOR SOME TIME.
 
    THE PARTIES HAD BEEN IN ACTUAL NEGOTIATIONS FOR ONLY TWO DAYS PRIOR
 TO IMPLEMENTATION.  THERE APPEARS TO HAVE BEEN GOOD FAITH BARGAINING AS
 TO THE IMPACT AND IMPLEMENTATION PROPOSALS.  THERE WAS NO "IMPASSE"
 WITHIN THE MEANING OF 5 C.F.R. SECTION 2470.2(E) /8/ , WHICH
 CONTEMPLATES THE USE OF EFFORTS TO REACH AGREEMENT BY DIRECT
 NEGOTIATIONS AND BY MEDIATION OR OTHER VOLUNTARY ARRANGEMENTS FOR
 SETTLEMENT BEFORE PARTIES CAN DECLARE THEMSELVES AT IMPASSE.  THE
 PARTIES ACKNOWLEDGED THE POSSIBILITY OF FUTURE AGREEMENTS BY THEIR
 WILLINGNESS TO MEET THEREAFTER WITH THE ASSISTANCE OF THE MEDIATOR.
 EVEN IF THE PARTIES WERE AT IMPASSE, RESPONDENT COULD NOT HAVE
 IMPLEMENTED THE NEW TOURS OF DUTY UNTIL THE UNION HAD A REASONABLE
 OPPORTUNITY TO INVOKE THE PROCESSES OF THE FEDERAL SERVICES IMPASSES
 PANEL.  5 U.S.C. SECTION 7119(B);  5 C.F.R. CH. XIV, SUBCHAPTER D.  A
 PERIOD OF LESS THAN TWO DAYS, INVOLVING LATE FRIDAY TO SUNDAY, DOES NOT
 CONSTITUTE SUCH A REASONABLE OPPORTUNITY, ABSENT A CLEAR AND UNEQUIVOCAL
 WAIVER BY THE UNION OF ITS RIGHTS IN THIS RESPECT.  THERE IS NO EVIDENCE
 THAT AN OVERRIDING EXIGENCY EXISTED WHICH REQUIRED IMMEDIATE
 IMPLEMENTATION.
 
    IN VIEW OF THE FOREGOING, IT IS CONCLUDED THAT RESPONDENT VIOLATED
 SECTION 7116(A)(5) OF THE STATUTE AND, DERIVATIVELY, SECTION 7116(A)(1)
 OF THE STATUTE, BY NOT AFFORDING THE UNION THE OPPORTUNITY TO NEGOTIATE
 FULLY ON PROCEDURES AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES
 ADVERSELY AFFECTED, WITHIN THE MEANING OF SECTION 7106(B)(2) AND (3) OF
 THE STATUTE, PRIOR TO THE IMPLEMENTATION OF CHANGES IN TOURS OF DUTY.
 /9/ RESPONDENT'S WILLINGNESS TO CONTINUE TO NEGOTIATE OVER THE IMPACT
 AND IMPLEMENTATION OF THE CHANGES AFTER IMPLEMENTATION DID NOT CURE THE
 VIOLATION OR RENDER IT DE MINIMUS.  BASED ON THE FOREGOING FINDINGS AND
 CONCLUSIONS, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING
 ORDER:
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE U.S.  CUSTOMS SERVICE, REGION V, NEW
 ORLEANS, LOUISIANA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INSTITUTING ANY FUTURE CHANGE IN THE TOURS OF DUTY, AND THE
 NUMBERS, TYPES AND GRADES
 
    OF EMPLOYEES OR POSITIONS ASSIGNED THERETO, OF THE NEW ORLEANS AIR
 SUPPORT CENTER WITHOUT
 
    AFFORDING NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER
 168, THE
 
    EMPLOYEES' COLLECTIVE BARGAINING REPRESENTATIVES, A REASONABLE
 OPPORTUNITY TO NEGOTIATE, TO
 
    THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES
 WHICH MANAGEMENT WILL OBSERVE
 
    IN IMPLEMENTING SUCH A CHANGE AND ON APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED
 
    BY THE CHANGE.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS
 
    STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
 UNION AND NTEU CHAPTER
 
    168, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE
 PROCEDURES WHICH
 
    MANAGEMENT OBSERVED IN CHANGING, ON MARCH 25, 1979, THE TOURS OF
 DUTY, AND THE NUMBERS, TYPES,
 
    AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED THERETO, OF THE NEW
 ORLEANS AIR SUPPORT CENTER
 
    AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY
 THE CHANGE.
 
    (B) POST AT ITS FACILITIES AT THE NEW ORLEANS AIR SUPPORT CENTER
 COPIES OF THE ATTACHED
 
    NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.
 UPON RECEIPT OF SUCH
 
    FORMS, THEY SHALL BE SIGNED BY THE DISTRICT DIRECTOR AND SHALL BE
 POSTED AND MAINTAINED BY HIM
 
    FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
 ALL BULLETIN BOARDS AND
 
    OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE
 DISTRICT DIRECTOR SHALL
 
    TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
 DEFACED, OR COVERED BY ANY
 
    OTHER MATERIAL.
 
    (C) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE FEDERAL LABOR
 RELATIONS AUTHORITY IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                         GARVIN LEE OLIVER
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  DECEMBER 4, 1980
    WASHINGTON, D.C.
 
                                 APPENDIX
 
           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 ANY FUTURE CHANGE IN THE TOURS OF DUTY, AND THE
 NUMBERS, TYPES, AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED THERETO,
 OF THE NEW ORLEANS AIR SUPPORT CENTER WITHOUT AFFORDING NATIONAL
 TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER 168, THE EMPLOYEES'
 COLLECTIVE BARGAINING REPRESENTATIVE, A REASONABLE OPPORTUNITY TO
 NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
 PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH CHANGE
 AND
 ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 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 WITH THE NATIONAL TREASURY EMPLOYEES
 UNION AND NTEU CHAPTER 168, TO THE EXTENT CONSONANT WITH LAW AND
 REGULATIONS, CONCERNING THE PROCEDURES WHICH MANAGEMENT OBSERVED IN
 CHANGING, ON MARCH 25, 1979, THE TOURS OF DUTY, AND THE NUMBERS, TYPES,
 AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED THERETO, OF THE NEW
 ORLEANS AIR SUPPORT CENTER AND ON APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES
 ADVERSELY AFFECTED BY SUCH CHANGE.
 
                           (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, FEDERAL LABOR RELATIONS AUTHORITY, REGION 6, BROWN
 AND ERVAY STREET, DOWNTOWN POST OFFICE STATION, ROOM 450, DALLAS, TEXAS
 75221.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE GENERAL COUNSEL MADE A MOTION TO STRIKE CERTAIN MATERIAL
 CONTAINED IN THE RESPONDENT'S CROSS-EXCEPTIONS AND OPPOSITION WHICH
 RELATED TO LANGUAGE IN A COLLECTIVE BARGAINING AGREEMENT BETWEEN NTEU
 AND THE CUSTOMS SERVICE THAT BECAME EFFECTIVE ON JUNE 30, 1980.  AS THAT
 CONTRACT WAS NOT YET EFFECTIVE DURING THE PERIOD OF TIME IN QUESTION,
 THE MOTION TO STRIKE IS HEREBY GRANTED.
 
    /2/ INASMUCH AS THE PARTIES HAD NOT REACHED IMPASSE BEFORE THE CHANGE
 WAS IMPLEMENTED, THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE
 JUDGE'S DISCUSSION CONCERNING THE REQUIREMENTS OF THE STATUTE WHERE
 PARTIES DO REACH IMPASSE IN SIMILAR CIRCUMSTANCES.
 
    /3/ IN REACHING THIS CONCLUSION THE JUDGE RELIED UPON, AMONG OTHERS,
 NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 66 AND INTERNAL REVENUE
 SERVICE, KANSAS CITY SERVICE CENTER, 1 FLRA 926 (1979) AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3669, AFL-CIO AND VETERANS
 ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 2 FLRA 640
 (1980).
 
    /4/ SECTION 7106(B)(2) AND (3) PROVIDE:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING --
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    /5/ SECTION 7106(B)(1) PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING --
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON THE
 
    TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)
 
    /6/ IT SHOULD BE NOTED THAT, UNLIKE THE JUDGE, THE AUTHORITY DOES NOT
 CONSTRUE THE "DURATION" OF A TOUR OF DUTY AS BEING SYNONYMOUS WITH
 "STARTING AND QUITTING TIMES." RATHER, "DURATION" RELATES TO THE LENGTH
 OF A SHIFT OR TOUR OF DUTY.
 
    /7/ DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 5
 FLRA NO. 2 (1981).
 
    /8/ 5 C.F.R. SECTION 2470.2(