09:0606(68)CA - Treasury, Customs Service, Region VIII, San Francisco, CA and NTEU -- 1982 FLRAdec CA



[ v09 p606 ]
09:0606(68)CA
The decision of the Authority follows:


 9 FLRA No. 68
 
 DEPARTMENT OF THE TREASURY
 UNITED STATES CUSTOMS SERVICE
 REGION VIII, SAN FRANCISCO,
 CALIFORNIA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case Nos. 9-CA-224
                                                             9-CA-230
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAS ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTION.  THEREAFTER, THE GENERAL COUNSEL, THE CHARGING PARTY
 AND THE RESPONDENT EACH FILED EXCEPTIONS, CROSS-EXCEPTIONS AND
 OPPOSITIONS TO EXCEPTIONS.  /1/
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE 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 IN THESE CONSOLIDATED CASES, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  THUS, THE AUTHORITY ADOPTS THE JUDGE'S CONCLUSION THAT
 THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY ITS
 REFUSAL TO BARGAIN OVER IMPACT AND IMPLEMENTATION PROPOSALS, I.E., THE
 STARTING AND QUITTING TIMES AND LUNCH PERIODS TO BE ESTABLISHED IN
 CONNECTION WITH THE NEWLY ESTABLISHED SHIFTS.
 
    THE JUDGE RECOMMENDED THAT THE RESPONDENT BE REQUIRED TO NEGOTIATE,
 UPON REQUEST, WITH THE CHARGING PARTY REGARDING THE IMPACT AND
 IMPLEMENTATION OF THE DECISION TO ESTABLISH THE NEW SHIFTS.  THE GENERAL
 COUNSEL AND THE CHARGING PARTY HAVE REQUESTED THAT, AS A REMEDY, THE
 AUTHORITY ORDER A RETURN TO THE STATUS QUO ANTE.  THE AUTHORITY FINDS
 THAT SUCH A REMEDY IS NOT WARRANTED HEREIN.  THUS, SINCE THIS CASE
 INVOLVES THE ESTABLISHMENT OF NEW SHIFTS, THERE ARE NO PREEXISTING
 STARTING OR QUITTING TIMES, OR LUNCH PERIODS, WHICH THE AUTHORITY MAY
 NOW 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 APPROPRIATE HEREIN, AND
 THEREFORE ADOPTS THE JUDGE'S RECOMMENDED ORDER IN THIS REGARD.  /2/
 
                                   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 VIII,
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INSTITUTING ANY CHANGES IN TOURS OF DUTY AT THE HONOLULU AND SAN
 FRANCISCO INTERNATIONAL AIRPORTS WITHOUT FIRST ALLOWING THE NATIONAL
 TREASURY EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES,
 THE OPPORTUNITY TO NEGOTIATE THE STARTING AND QUITTING TIMES AND LUNCH
 HOURS OF SUCH NEW TOURS OF DUTY.
 
    (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 EFFECTUATE THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
 UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, CONCERNING THE STARTING
 AND QUITTING TIMES AND LUNCH HOURS OF THE NEWLY ESTABLISHED TOURS OF
 DUTY AT THE HONOLULU AIRPORT.  /3/
 
    (B) POST AT THE HONOLULU AND SAN FRANCISCO INTERNATIONAL AIRPORTS
 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 REGIONAL COMMISSIONER, UNITED STATES CUSTOMS SERVICE,
 REGION VIII, AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS
 THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
 OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
 REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT
 ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE REGIONAL DIRECTOR, REGION IX, 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.  
 
 ISSUED, WASHINGTON, D.C., JULY 21, 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 TOURS OF DUTY WITHOUT FIRST ALLOWING
 THE NATIONAL TREASURY EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF
 OUR EMPLOYEES, THE OPPORTUNITY TO NEGOTIATE CONCERNING THE STARTING AND
 QUITTING TIMES AND LUNCH HOURS OF SUCH NEW TOURS OF DUTY.  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, THE EXCLUSIVE REPRESENTATIVE
 OF OUR EMPLOYEES, CONCERNING THE STARTING AND QUITTING TIMES AND LUNCH
 HOURS OF THE NEWLY ESTABLISHED TOURS OF DUTY AT HONOLULU AIRPORT.
 
                                (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
 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE WITH ANY OF ITS
 PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR OF
 THE FEDERAL LABOR RELATIONS AUTHORITY, REGION IX, WHOSE ADDRESS IS:  530
 BUSH STREET, ROOM 542, SAN FRANCISCO, CA 94108, AND WHOSE TELEPHONE
 NUMBER IS:  (415) 556-8105.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    CARL D. CAMMARATA, ESQUIRE
    FOR THE RESPONDENT
    BARI STOLMACK, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    ALAN HERSH, ESQUIRE
    FOR THE CHARGING PARTY
 
    BEFORE:  BURTON S. STERNBURG
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5
 U.S.C.SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED
 THEREUNDER, FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5
 C.F.R.CHAPTER XIV, PART 2411, ET SEQ.
 
    PURSUANT TO AMENDED CHARGES FIRST FILED ON NOVEMBER 7, 1979, IN CASE
 NO. 9-CA-224, AND ON NOVEMBER 19, 1979 IN CASE NO. 9-CA-230, BY THE
 NATIONAL TREASURY EMPLOYEES UNION, (HEREINAFTER CALLED THE NTEU OR
 UNION), AN AMENDED CONSOLIDATED COMPLAINT AND NOTICE OF HEARING WAS
 ISSUED ON MAY 6, 1980, BY THE REGIONAL DIRECTOR FOR REGION IX, FEDERAL
 LABOR RELATIONS AUTHORITY, SAN FRANCISCO, CALIFORNIA.  THE COMPLAINT
 ALLEGES, IN SUBSTANCE, THAT THE DEPARTMENT OF THE TREASURY, UNITED
 STATES CUSTOMS SERVICE, REGION VIII, SAN FRANCISCO, CALIFORNIA,
 (HEREINAFTER CALLED THE RESPONDENT OR CUSTOMS SERVICE), VIOLATED
 SECTIONS 7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (HEREINAFTER CALLED THE STATUTE OR ACT), BY VIRTUE OF
 ITS ACTIONS IN UNILATERALLY ADOPTING AND IMPLEMENTING ADDITIONAL WORK
 SHIFTS AT THE HONOLULU AIRPORT AND THE SAN FRANCISCO INTERNATIONAL
 AIRPORT WHILE NEGOTIATIONS CONCERNING THE ESTABLISHMENT OF SUCH SHIFTS
 WERE STILL PENDING.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON JULY 9, 1980, IN SAN
 FRANCISCO.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
 EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING
 ON THE ISSUES INVOLVED HEREIN.  THE PARTIES SUBMITTED POST HEARING
 BRIEFS WHICH HAVE BEEN DULY CONSIDERED.  /4/
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT /5/
 CONCLUSIONS AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    RESPONDENT OPERATES CUSTOMS FACILITIES AT THE HONOLULU AIRPORT AND
 THE SAN FRANCISCO INTERNATIONAL AIRPORT WHEREIN IT INSPECTS ALL BAGGAGE
 COMING IN FROM FOREIGN COUNTRIES.  THE UNION, WHICH IS THE CHARGING
 PARTY HEREIN, IS THE EXCLUSIVE REPRESENTATIVE OF THE CUSTOMS INSPECTORS
 WORKING AT RESPONDENT'S FACILITIES IN THE HONOLULU AIRPORT AND THE SAN
 FRANCISCO INTERNATIONAL AIRPORT.
 
    SAN FRANCISCO AIRPORT CHANGES AND NEGOTIATIONS:
 
    BY LETTER DATED OCTOBER 19, 1979, MR. PAUL ANDRES, RESPONDENT'S
 ASSISTANT REGIONAL COMMISSIONER, INFORMED MS. PRISCILLA WINSLOW, NTEU'S
 NATIONAL FIELD REPRESENTATIVE, THAT RESPONDENT, DUE TO A CHANGE IN
 FLIGHT ARRIVAL TIMES, WAS ESTABLISHING A NEW SHIFT AT THE SAN FRANCISCO
 INTERNATIONAL AIRPORT ON NOVEMBER 12, 1979.  THE SHIFT WAS TO BE IN
 EFFECT MONDAY THROUGH SATURDAY, 7:30 A.M. TO 4:30 P.M.  ALTHOUGH NOT
 CLEAR FROM THE RECORD, IT APPEARS THAT AS OF OCTOBER 1979, THE ONLY
 SHIFT IN EFFECT WAS ONE WHICH COMMENCED AT 8 A.M. AND TERMINATED AT 5
 P.M.  THE CONTENTS OF THE LETTER WERE INFORMALLY DISCUSSED ON THE
 TELEPHONE BY THE RESPECTIVE REPRESENTATIVES OF THE RESPONDENT AND THE
 UNION AND IT WAS AGREED THAT A MEETING BE SCHEDULED FOR PURPOSES OF
 DISCUSSING THE RESPONDENT'S ESTABLISHMENT OF A NEW SHIFT.  ON OCTOBER
 23, 1979, THE UNION SENT THE RESPONDENT A LETTER WHEREIN IT FORMALLY
 REQUESTED NEGOTIATIONS WITH RESPECT TO THE SUBSTANCE, IMPACT AND
 IMPLEMENTATION OF THE NEW SHIFT.  THE UNION'S LETTER FURTHER REQUESTED
 THAT THE IMPLEMENTATION OF THE NEW SHIFT BE DELAYED UNTIL THE MATTER HAD
 BEEN FULLY NEGOTIATED.
 
    ON OCTOBER 29, 1979, A MEETING WAS HELD FOR PURPOSES OF FURTHER
 DISCUSSING THE PROPOSED NEW SHIFT.  AFTER ASKING A NUMBER OF QUESTIONS
 CONCERNING THE NEW SHIFT, THE UNION PROPOSED THAT THE STARTING HOUR OF
 THE SHIFT BE 7:15 A.M. RATHER THAN 7:30 A.M.; THAT THE SHIFT BE OF AN
 EIGHT HOUR DURATION RATHER THAN THE NINE HOURS PROPOSED BY MANAGEMENT;
 THAT THE EMPLOYEES BE ALLOWED TO TAKE A LUNCH HOUR ON THE CLOCK;  THAT
 ASSIGNMENT TO THE NEW SHIFT BE BASED ON VOLUNTEERS;  AND THAT
 IMPLEMENTATION OF THE NEW SHIFT BE DELAYED UNTIL SUCH SHIFT COULD BE
 COORDINATED WITH PERSONNEL FROM THE IMMIGRATION SERVICE WHICH ALSO
 PERFORMED INVESTIGATORY FUNCTIONS ON INCOMING FOREIGN PLANES.  THE
 PARTIES FAILED TO REACH AGREEMENT ON THE AFOREMENTIONED PROPOSALS OF THE
 UNION AND THE MEETING ENDED WITH THE UNION MAKING IT CLEAR THAT IT
 INTENDED TO SEEK THE ASSISTANCE OF A FEDERAL MEDIATOR.
 
    ON NOVEMBER 7, 1979, THE PARTIES HELD ANOTHER BARGAINING SESSION AT
 THE OFFICE OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE.  DURING
 THE COURSE OF THE MEETING THE PARTIES ANSWERED MANY QUESTIONS PRESENTED
 BY THE MEDIATOR AND THE UNION RESTATED THE PROPOSALS WHICH IT HAD MADE
 AT THE OCTOBER 29TH MEETING.  RESPONDENT TOOK THE POSITION THAT THE
 UNION'S PROPOSALS WERE UNACCEPTABLE AND THAT IN ANY EVENT IT, THE
 RESPONDENT, WAS NOT OBLIGATED TO NEGOTIATE THE STARTING TIME OF THE
 SHIFT, DURATION OF THE LUNCH HOUR AND THE DATE OF IMPLEMENTATION OF THE
 NEW SHIFT.  THE MEETING ENDED WITH NO AGREEMENT ON THE STARTING TIME,
 DURATION OF THE SHIFT, LUNCH HOUR AND DATE OF IMPLEMENTATION.  THE
 PARTIES DID REACH AN INTERIM AGREEMENT WITH RESPECT TO THE METHOD OF
 STAFFING THE NEW SHIFT.
 
    ON NOVEMBER 13, 1979, THE NEW SHIFT WAS PUT INTO EFFECT.  ON THE NEXT
 DAY, NOVEMBER 14, 1979, THE PARTIES AGAIN MET WITH THE MEDIATOR.  DURING
 THE COURSE OF THE MEETING THE PARTIES REACHED AGREEMENT ON THE DISPUTED
 ISSUES.  THE WRITTEN AGREEMENT WHICH IS DATED NOVEMBER 14, 1979, AND
 INCLUDED IN THE RECORD AS JOINT EXHIBIT J, PROVIDES THAT THE NEW SHIFT
 WILL BE FROM 7:15 A.M. TO 4:15 P.M., THAT EMPLOYEES MAY FOREGO THEIR
 RESPECTIVE LUNCH HOURS AND QUIT WORK AT 3:15 P.M. IF THE WORK LOAD AND
 OPERATIONAL REQUIREMENTS SO PERMIT, AND THAT EMPLOYEES WILL BE ASSIGNED
 TO THE NEW SHIFT ON A ROTATIONAL BASIS AND BE ALLOWED, SUBJECT TO
 APPROVAL OF THEIR SUPERVISOR, TO TRADE SHIFTS.  AT NO TIME DURING THE
 NEGOTIATIONS WAS AN IMPASSE DECLARED BY EITHER THE RESPONDENT OR THE
 MEDIATOR.
 
    HONOLULU AIRPORT CHANGES AND NEGOTIATIONS:
 
    ON OR ABOUT JUNE 12, 1979, DEPARTMENT OF THE TREASURY, U.S. CUSTOMS
 SERVICE ISSUED A MANUAL SUPPLEMENT TO ITS "POLICIES AND PROCEDURES
 MANUAL" WHICH DEALT WITH "MANAGEMENT OF INSPECTIONAL OVERTIME".  THE
 MANUAL SUPPLEMENT DIRECTED RESPONDENT'S VARIOUS REGIONAL OFFICES TO
 ESTABLISH TOURS OF DUTY WHICH WOULD CURTAIL THE PAYMENT OF OVERTIME.
 THE MANUAL FURTHER INSTRUCTED THE REGIONS TO NOTIFY ANY UNION INVOLVED
 AND BARGAIN SOLELY ON THE IMPACT AND IMPLEMENTATION OF ANY CHANGE IN A
 TOUR OF DUTY.  THE MANUAL SUPPLEMENT DID NOT CONTAIN ANY SPECIFIED DATE
 BY WHICH IMPLEMENTATION OF CHANGES IN ESTABLISHED TOURS OF DUTY WERE TO
 BE IMPLEMENTED, NOR DID IT SET FORTH THE PRECISE MANNER IN WHICH
 OVERTIME WAS TO BE CURTAILED.
 
    ON SEPTEMBER 29, 1979, PUBLIC LAW 96-74 WAS ENACTED BY CONGRESS.
 PUBLIC LAW 96-74 PROVIDED, AMONG OTHER THINGS, THAT NO CUSTOMS EMPLOYEES
 WERE TO BE PAID IN EXCESS OF $20,000 PER ANNUM FOR OVERTIME WORK
 PERFORMED DURING THE FISCAL YEAR COMMENCING OCTOBER 1, 1979.
 
    ON SEPTEMBER 28, 1979, MR. PAUL ANDRES, ASSISTANT REGIONAL
 COMMISSIONER FOR REGION VIII, U.S. CUSTOMS SERVICE, WROTE A LETTER TO
 MS. PRISCILLA WINSLOW, NTEU NATIONAL FIELD REPRESENTATIVE, WHEREIN HE
 INFORMED THE UNION THAT EFFECTIVE OCTOBER 28, 1979, THREE SHIFTS WOULD
 BE ESTABLISHED AT THE HONOLULU INTERNATIONAL AIRPORT.  THE SHIFTS WERE
 TO BE FROM 6 A.M.  TO 2 P.M., 7 A.M. TO 3 P.M. AND FROM 9 A.M. TO 6 P.M.
  AS OF SEPTEMBER 29, 1979, THE UNIT EMPLOYEES WERE ONLY WORKING ONE
 SHIFT, I.E. 8 A.M. TO 4 P.M.
 
    SUBSEQUENTLY, DURING THE COURSE OF A TELEPHONE CONVERSATION BETWEEN
 THE RESPECTIVE REPRESENTATIVES OF THE RESPONDENT AND THE UNION
 CONCERNING THE SEPTEMBER 28, 1979 LETTER, RESPONDENT CHANGED THE
 PROPOSED STARTING AND QUITTING TIMES OF THE THREE SHIFTS TO BE AS
 FOLLOWS:  6 A.M. TO 2:30 P.M., 6:30 A.M. TO 3 P.M. AND 9 A.M. TO 5:30
 P.M.  ALSO, DURING THE AFOREMENTIONED CONVERSATION, THE UNION REQUESTED
 NEGOTIATIONS WITH RESPECT TO THE PROPOSED NEW TOURS OF DUTY AND ASKED
 THE RESPONDENT NOT TO IMPLEMENT THE NEW TOURS OF DUTY UNTIL SUCH TIME AS
 THE PARTIES HAD COMPLETED NEGOTIATIONS THEREON.  THE UNION LATER
 CONFIRMED ITS REQUESTS FOR NEGOTIATIONS AND DELAY OF IMPLEMENTATION OF
 THE NEW TOURS BY A LETTER DATED OCTOBER 10, 1979.
 
    THE PARTIES HELD NEGOTIATION SESSIONS ON OCTOBER 11 AND FROM OCTOBER
 16 THROUGH THE 19TH, WHEREIN AGREEMENT WAS REACHED ON THREE ISSUES
 RELATING TO THE CHANGE IN TOURS OF DUTY.  THE AGREEMENT COVERED
 ROTATION, SHIFT AND ADJUSTMENT FOR EDUCATIONAL PURPOSES AND THE USE OF
 COMPENSATORY TIME.
 
    ON OCTOBER 19, 1979, RESPONDENT NOTIFIED THE UNION THAT IT WOULD
 DELAY IMPLEMENTATION BY ONE ADDITIONAL WEEK, UNTIL NOVEMBER 4, 1979, FOR
 THE PURPOSES OF ALLOWING ONE WEEK'S NOTICE TO EMPLOYEES CONCERNING
 SPECIFIC SHIFT ASSIGNMENTS AND POSSIBLE RESOLUTION OF OTHER OUTSTANDING
 ISSUES.  AT THE TIME OF THE ANNOUNCEMENT CONCERNING THE IMPLEMENTATION
 DATE, THE PARTIES WERE STILL BARGAINING OVER SUCH ISSUES AS WHICH HOURS
 IN THE DAY LUNCH COULD BE TAKEN, GROUND RULES, ADMINISTRATIVE DUTIES,
 LEAVE, BREAKS AND SHIFT SWAPPING.  DURING THE COURSE OF THE ABOVE
 NEGOTIATING MEETING THE RESPONDENT, RELYING PRIMARILY ON THE PROVISIONS
 OF 5 U.S.C. 7106 (MANAGEMENT RIGHTS), DECLARED SUCH ISSUES AS THE
 STARTING AND QUITTING TIMES OF THE SHIFT AND THE DURATION OF THE TOURS
 OF DUTY WHICH EXTENDED THE TOUR OF DUTY AN ADDITIONAL HALF HOUR TO
 PROVIDE FOR A LUNCH HOUR "OFF THE CLOCK" TO BE NON-NEGOTIABLE.  PRIOR TO
 THE CHANGE IN THE TOURS OF DUTY, IT APPEARS FROM THE RECORD, THAT
 EMPLOYEES NORMALLY TOOK LUNCH BREAKS "ON THE CLOCK".  THE UNION
 REQUESTED MEDIATION AND THE PARTIES MET WITH THE MEDIATOR ON OCTOBER 31
 OR NOVEMBER 1, 1979.  NO FURTHER AGREEMENTS WERE REACHED DURING THESE
 SESSIONS AND THE PARTIES AGAIN MET IN MEDIATION IN LATE NOVEMBER OR
 EARLY DECEMBER OF 1979.  AT THE CONCLUSION OF THIS MEETING, THE MEDIATOR
 DECLARED THAT THE PARTIES WERE AT IMPASSE.  IN THE INTERIM, ON NOVEMBER
 4, 1979, THE RESPONDENT IMPLEMENTED THE NEW TOURS OF DUTY.  SEVEN
 EMPLOYEES REMAINED IN THE PREVIOUSLY SCHEDULED UNCHANGED TOUR OF DUTY
 FROM 8 A.M. TO 4 P.M.  NEW TOURS OF DUTY WERE ESTABLISHED AS FOLLOWS:
 (1) 6 A.M. TO 2:30 P.M., (2) 6:30 A.M. TO 3 P.M., (3) 9 A.M. TO 5:30
 P.M.  ON OR ABOUT DECEMBER 5, 1979, THE PARTIES MET AGAIN.  AT THIS TIME
 THE PARTIES EXECUTED A NEGOTIATED AGREEMENT CONCERNING SHIFT TRADING AND
 LUNCH PERIODS.  THE PARTIES HAD REACHED AGREEMENT ON THE FOREGOING
 ISSUES AT THE EARLIER MEETING HELD IN THE PRESENCE OF THE FEDERAL
 MEDIATOR IN EITHER LATE NOVEMBER OR EARLY DECEMBER.  THE AGREEMENT
 PROVIDED, AMONG OTHER THINGS, THAT RESPONDENT WOULD PROVIDE THE
 INSPECTORS A LUNCH PERIOD BETWEEN THE 3RD AND 5TH HOURS OF THEIR
 RESPECTIVE SHIFTS.
 
    THE CHANGES IN TOURS OF DUTY AND THE DURATION OF THE LUNCH HOUR
 IMPLEMENTED BY RESPONDENT ON NOVEMBER 4, 1979, RESULTED IN CHANGES IN
 THE ASSIGNMENT OF OVERTIME, AND IN SOME CASES, IN THE DECREASE OF
 OVERTIME TO SOME EMPLOYEES.
 
    THE RECORD REVEALS THAT THE AIRLINES SERVING HAWAII CHANGE THEIR
 SCHEDULES TWICE A YEAR AND THAT STARTING IN THE FALL AND WINTER OF 1979
 A GOOD NUMBER OF AIRLINE FLIGHTS WOULD BE ARRIVING BETWEEN THE HOURS OF
 6 A.M. AND 8 A.M.  THE RECORD FURTHER INDICATES THAT THERE WOULD HAVE
 BEEN VERY LITTLE FLIGHT ACTIVITY BETWEEN THE HOURS OF 3 P.M. AND 4 P.M.
 LASTLY, VARIOUS CHARTS PREPARED BY THE RESPONDENT AND ADMITTED INTO
 EVIDENCE INDICATE THAT IF FALL AND WINTER AIRLINE SCHEDULES CONTINUED
 WITHOUT CHANGE AND THERE WERE NO CHANGES IN THE EXISTING 8 A.M. TO 4
 P.M. ESTABLISHED TOUR OF DUTY, MANY UNIT EMPLOYEES MIGHT WELL HAVE
 REACHED THE $20,000 OVERTIME CAP IMPOSED BY CONGRESS PRIOR TO THE END OF
 THE FISCAL YEAR.
 
                        DISCUSSION AND CONCLUSIONS
 
    RESPONDENT URGES DISMISSAL OF THE COMPLAINT ON VARIOUS PROCEDURAL AND
 SUBSTANTIVE GROUNDS.  WITH RESPECT TO THE PROCEDURAL GROUNDS PREDICATED
 ON THE LACK OF JURISDICTION OF THE AUTHORITY'S SAN FRANCISCO REGION TO
 PROSECUTE THE INSTANT CASE AND THE ALLEGED CONTRADICTORY AND AMBIGUOUS
 NATURE OF THE COMPLAINT, I ADHERE TO MY PRIOR RULINGS THEREON MADE
 DURING THE COURSE OF THE HEARING THAT SUCH MOTIONS ARE WITHOUT MERIT.
 
    WITH RESPECT TO THE SUBSTANTIVE GROUNDS FOR DISMISSAL, RESPONDENT
 TAKES THE POSITION THAT IT WAS NOT OBLIGATED TO BARGAIN OVER THE
 STARTING AND QUITTING TIMES AND LUNCH HOUR PROPOSALS OF THE UNION SINCE
 SUCH PROPOSALS WERE INTEGRALLY RELATED TO RESPONDENTS STAFFING PATTERNS.
  IT FURTHER ARGUES THAT WITH RESPECT TO IMPACT AND IMPLEMENTATION THAT
 IT DID BARGAIN OVER SUCH ISSUES AND ONLY IMPLEMENTED ITS PROPOSALS AFTER
 IMPASSE WAS REACHED.  LASTLY, RESPONDENT TAKES THE POSITION THAT
 INASMUCH AS THE NEW TOURS OF DUTY WERE MANDATED BY A NATIONAL POLICY
 ANNOUNCED BY THE CUSTOMS SERVICE, RESPONDENT WAS ONLY OBLIGATED TO
 BARGAIN ON THE ISSUES WITH THE NATIONAL TREASURY EMPLOYEES UNION WHICH
 ENJOYED NATIONAL EXCLUSIVE RECOGNITION AND NOT THE REGIONAL
 REPRESENTATIVE OF THE NTEU.  /6/
 
    IN SUPPORT OF ITS POSITION THAT THE STARTING AND QUITTING TIMES AND
 LUNCH HOUR PROPOSALS OF THE UNION WERE NON-NEGOTIABLE THE RESPONDENT
 RELIES ON THE MANUAL SUPPLEMENT AND THE $20,000 OVERTIME PAY CAP IMPOSED
 BY CONGRESS.  ACCORDING TO RESPONDENT'S COUNSEL, THE $20,000 OVERTIME
 PAY CAP WOULD RESTRICT THE USE OF ANY EMPLOYEE REACHING SUCH CAP ON
 OVERTIME ASSIGNMENTS.  THUS IT WAS IMPERATIVE THAT THE NEW TOURS OF DUTY
 BE ESTABLISHED IN ORDER TO PREVENT RESPONDENT FROM BEING RESTRICTED WITH
 RESPECT TO THE EFFECTIVE UTILIZATION OF ITS PERSONNEL.  ALTHOUGH NOT
 ENTIRELY CLEAR, IT APPEARS THAT RESPONDENT TAKES THE POSITION THAT
 INASMUCH AS THE MANUAL SUPPLEMENT, WHICH IS APPLICABLE NATIONWIDE,
 MANDATES CURTAILMENT OF OVERTIME, IT EXCUSED FROM BARGAINING WITH THE
 UNION WITH RESPECT TO CHANGES IN STARTING AND QUITTING TIMES SINCE SUCH
 CHANGES WERE ENACTED PURSUANT TO AN ORDER FROM HIGHER AUTHORITY.
 
    THE AUTHORITY HAS HELD THAT IN THE ABSENCE OF A SHOWING THAT STARTING
 AND QUITTING TIMES OF A SHIFT OR TOUR OF DUTY ARE INTEGRALLY RELATED TO
 STAFFING, PROPOSALS THEREON BY A UNION ARE NEGOTIABLE.  THE AUTHORITY
 HAS FURTHER HELD THAT THE BURDEN OF ESTABLISHING THAT A UNION'S
 PROPOSALS CONCERNING STARTING AND QUITTING TIMES IMPINGE UPON THE
 RESPONDENT'S "MANAGEMENT RIGHT" TO UNILATERALLY DETERMINE STAFFING
 PATTERNS IS UPON THE RESPONDENT.  NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 666 AND INTERNAL REVENUE SERVICE, KANSAS CITY SERVICE CENTER, 1
 FLRA NO. 106.  UPON THE BASIS OF THE ENTIRE RECORD AND PARTICULARLY THE
 CONSIDERATIONS SET FORTH BELOW, I FIND THAT THE RESPONDENT HAS FAILED IN
 ITS ENDEAVOR TO ESTABLISH THAT THE UNION'S PROPOSALS WITH REGARD TO
 STARTING AND QUITTING TIMES AND LUNCH PERIODS ARE "INTEGRALLY RELATED TO
 THE RESPONDENT'S STAFFING PATTERNS" AND THUS ARE NON-NEGOTIABLE.
 
    AT THE TIME RESPONDENT REFUSED TO CONSIDER THE UNION'S PROPOSALS THE
 FISCAL YEAR, TO WHICH THE $20,000 CONGRESSIONAL PAY CAP WAS APPLICABLE,
 HAD JUST STARTED AND NONE OF THE UNIT EMPLOYEES WERE SHOWN TO HAVE BEEN
 ANYWHERE NEAR THE $20,000 LIMIT ON OVERTIME.  ADDITIONALLY, THERE WAS NO
 SHOWING THAT THE UNION'S PROPOSAL RELATIVE TO STARTING AND QUITTING
 TIMES WOULD HAVE EITHER INCREASED OVERTIME OR EVEN NECESSITATED
 OVERTIME.  IN FACT IN SAN FRANCISCO THE UNION'S PROPOSALS VARIED ONLY 15
 MINUTES FROM THOSE ANNOUNCED OR INSISTED UPON BY THE RESPONDENT.  /7/
 CONSIDERING THE FOREGOING AND THE FACT THAT FUTURE AIRLINE FLIGHT
 SCHEDULE CHANGES MIGHT WELL BE MADE AND CAUSE A DECREASE IN ANTICIPATED
 OVERTIME, I FIND RESPONDENT'S POSITION WITH REGARD TO THE IMPACT OF THE
 $20,000 PAY CAP, I.E. IMPINGING ON ITS FREEDOM TO ASSIGN EMPLOYEES TO
 OVERTIME WORK, TO BE AT BEST SPECULATIVE AND UNSUPPORTED BY THE RECORD
 EVIDENCE.
 
    ASIDE FROM THE FACT THAT THE MANUAL SUPPLEMENT SET FORTH NO
 PARTICULAR IMPLEMENTATION DATE AND WAS AT BEST A GENERAL STATEMENT OF
 POLICY CONTAINING NO SPECIFICS, I FIND THAT RESPONDENT'S RELIANCE ON THE
 MANUAL SUPPLEMENT AS EXCUSE FOR ITS ACTIONS TO BE IN ERROR.  IT HAS LONG
 BEEN HELD THAT, AT LEAST IN THE FIELD OF UNFAIR LABOR PRACTICES, AN
 ACTIVITY MAY NOT BE RELIEVED FROM ITS BARGAINING RESPONSIBILITIES SIMPLY
 BECAUSE IT WAS ACTING UNDER THE AEGIS OR COMMAND OF HIGHER MANAGEMENT.
 IT IS ONLY WHEN THE ACTIVITY IS PERFORMING SOLELY MINISTERIAL FUNCTIONS
 THAT RELIEF FROM AN UNFAIR LABOR PRACTICE FINDING IS IN ORDER.  NAVAL
 AIR REWORK FACILITY, PENSACOLA, FLORIDA AND SECRETARY OF THE NAVY,
 WASHINGTON, D.C. AND AFGE LOCAL 1960, A/SLMR NO. 608, FLRC NO. 76A-37
 (MAY 4, 1977).  HERE, HOWEVER, THE ACTIVITY OR REGION WAS PERFORMING
 MORE THAN A MINISTERIAL FUNCTION.  THUS, I FIND THAT THE ACTIVITY HEREIN
 WAS SPECIFICALLY IMPLEMENTING WHAT OTHERWISE WAS MERELY A GENERAL POLICY
 OF THE AGENCY WITH RESPECT TO THE CURTAILMENT OF EXCESSIVE OVERTIME.  IN
 THIS REGARD THE RECORD INDICATES THAT INSTITUTION OF THE NEW SHIFTS AND
 RESPECTIVE STARTING AND QUITTING TIMES WAS SOLELY THE PRODUCT OF THE
 ACTIVITY'S SUPERVISORY OFFICIALS WHO WERE ATTEMPTING TO COMPLY WITH THE
 GENERAL POLICY ON OVERTIME SET FORTH IN THE MANUAL SUPPLEMENT.
 
    ACCORDINGLY, BASED UPON THE FOREGOING CONSIDERATIONS, I FIND THAT THE
 RESPONDENT WAS OBLIGATED TO BARGAIN ON THE UNION'S PROPOSALS WITH
 RESPECT TO THE STARTING AND QUITTING TIMES AND LUNCH HOURS OF THE NEWLY
 ESTABLISHED SHIFTS OR TOURS OF DUTY AND THAT ITS FAILURE TO DO SO WAS
 VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF THE ACT.
 
    MOREOVER, AND ASIDE FROM THE ABOVE CONSIDERATIONS AND CONCLUSIONS, I
 FIND THAT THE RESPONDENT PRIOR TO IMPLEMENTATION WAS AT LEAST UNDER AN
 OBLIGATION TO BARGAIN OVER THE IMPACT AND MANNER OF IMPLEMENTATION OF
 ITS ALLEGED NON-NEGOTIABLE DECISIONS WITH RESPECT TO THE STARTING AND
 QUITTING TIMES AND LUNCH HOURS OF THE NEWLY ESTABLISHED SHIFTS.  I
 FURTHER FIND, BASED UPON THE RECORD AS A WHOLE, THAT RESPONDENT FAILED
 TO FULFILL THIS OBLIGATION AND THUS COMMITTED AN ADDITIONAL VIOLATION OF
 SECTIONS 7116(A)(1) AND (5).
 
    THE RECORD AMPLY SUPPORTS THE CONCLUSION THAT THE INSTITUTION OF THE
 NEW SHIFTS AT SAN FRANCISCO AND HONOLULU OCCURRED PRIOR TO COMPLETION OF
 NEGOTIATIONS AND THE REACHING OF AN IMPASSE AS DEFINED IN THE ACT.  IN
 THIS CONNECTION IT IS NOTED THAT WITH THE HELP OF THE FEDERAL MEDIATOR
 VARIOUS AGREEMENTS WERE NEGOTIATED SHORTLY, IF NOT IMMEDIATELY, AFTER
 THE IMPLEMENTATION OF THE NEW SHIFTS.  IN THE ABSENCE OF SOME
 UNANTICIPATED OR EXTRAORDINARY CHANGE IN EVENTS, SUCH CONCESSIONS AND
 AGREEMENTS MADE ALMOST IMMEDIATELY AFTER IMPLEMENTATION NEGATE THE
 EXISTENCE OF AN IMPASSE AT THE TIME THE NEW TOURS OF DUTY WERE
 ESTABLISHED.  ADDITIONALLY, A LITERAL READING OF THE RULES AND
 REGULATIONS OF THE AUTHORITY, PARTICULARLY SECTION 2470.2(E.) MAKES IT
 CLEAR THAT EXHAUSTION OF THE EFFORTS OF THE FEDERAL MEDIATION SERVICE IS
 A CONDITION PRECEDENT TO THE DECLARATION OF AN IMPASSE.  /8/
 
    HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF
 THE STATUTE BY INSTITUTING NEW TOURS OF DUTY WITHOUT FIRST NEGOTIATING
 WITH THE UNION CONCERNING THE STARTING AND QUITTING TIMES AND LUNCH
 HOURS OF SUCH NEW TOURS OF DUTY AS WELL AS THE IMPACT AND DATE OF
 IMPLEMENTATION OF SUCH NEW STARTING AND QUITTING TIMES AND LUNCH HOURS,
 I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER DESIGNED TO
 EFFECTUATE THE PURPOSES OF THE STATUTE.  /9/
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C.SECTION 7118(A)(7)(A), AND
 SECTION 2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R.SECTION
 2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE
 TREASURY, UNITED STATES CUSTOMS SERVICE REGION VIII, SAN FRANCISCO,
 CALIFORNIA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INSTITUTING ANY CHANGES IN TOURS OF DUTY WITHOUT FIRST ALLOWING
 THE NATIONAL TREASURY
 
    EMPLOYEES UNION TO NEGOTIATE THE STARTING AND QUITTING TIMES AND
 LUNCH HOURS OF SUCH NEW TOURS
 
    OF DUTY.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL LABOR-MANAGEMENT
 RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE FEDERAL LABOR-MANAGEMENT RELATIONS STATUTE:
 
    (A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, MEET AND
 NEGOTIATE, TO THE
 
    EXTENT CONSONANT WITH LAW AND REGULATIONS, THE STARTING AND QUITTING
 TIMES AND LUNCH HOURS OF
 
    THE NEWLY ESTABLISHED TOURS OF DUTY.  TO THE EXTENT THAT ANY FINAL
 AGREEMENT REACHED BY THE
 
    PARTIES RESULTS IN DIFFERENT STARTING AND QUITTING TIMES AND LUNCH
 HOURS THAN THOSE
 
    UNILATERALLY ESTABLISHED ON NOVEMBER 4 AND 13, 1979, MAKE WHOLE ANY
 UNIT EMPLOYEE FOR ANY
 
    OVERTIME LOSS HE OR SHE MIGHT HAVE SUFFERED SINCE SUCH DATES.
 
    (B) POST AT THE HONOLULU AND SAN FRANCISCO INTERNATIONAL AIRPORTS
 COPIES OF THE ATTACHED
 
    NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL
 LABOR RELATIONS
 
    AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
 REGIONAL COMMISSIONER,
 
    UNITED STATES CUSTOMS SERVICE REGION VIII, AND SHALL BE POSTED AND
 MAINTAINED FOR 60
 
    CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
 BULLETIN BOARDS AND OTHER
 
    PLACES WHERE NOTICES ARE CUSTOMARILY POSTED.  REASONABLE STEPS SHALL
 BE TAKEN TO INSURE THAT
 
    SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    (C) 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.
 
                         BURTON S. STERNBURG
                         ADMINISTRATIVE LAW JUDGE
 
 DATED:  DECEMBER 15, 1980
         WASHINGTON, D.C.
                                 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 ANY CHANGE IN TOURS OF DUTY WITHOUT FIRST ALLOWING
 THE NATIONAL TREASURY EMPLOYEES UNION TO NEGOTIATE, TO THE EXTENT
 CONSONANT WITH LAW AND REGULATIONS, THE STARTING AND QUITTING TIMES AND
 LUNCH HOURS OF SUCH NEW TOURS OF DUTY.  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 MEET AND NEGOTIATE WITH THE
 NATIONAL TREASURY EMPLOYEES UNION, TO THE EXTENT CONSONANT WITH LAW AND
 REGULATIONS, CONCERNING THE STARTING AND QUITTING TIMES AND LUNCH HOURS
 OF THE NEWLY ESTABLISHED TOURS OF DUTY.  IF ANY FINAL AGREEMENT REACHED
 BY THE PARTIES RESULTS IN DIFFERENT STARTING AND QUITTING TIMES AND
 LUNCH HOURS, TO THE EXTENT CONSONANT WITH APPLICABLE LAW, REGULATIONS
 AND DECISIONS OF THE COMPTROLLER GENERAL, WE WILL MAKE ANY UNIT EMPLOYEE
 WHOLE FOR ANY OVERTIME LOSS HE OR SHE MIGHT HAVE SUFFERED SINCE THE
 UNILATERAL INSTITUTION OF THE NEW TOURS OF DUTY ON NOVEMBER 4 AND 13,
 1979.  DATED:  . . .  BY:  REGIONAL COMMISSIONER, U.S. CUSTOMS SERVICE
 
                                REGION VIII
 
 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 QUESTION CONCERNING THIS NOTICE, OR
 COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
 REGION IX, WHOSE ADDRESS IS:  450 GOLDEN GATE AVENUE, ROOM 11408, P.O.
 BOX 36016, SAN FRANCISCO, CA 94102.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ MORE SPECIFICALLY, IN ADDITION TO EXCEPTIONS BY EACH PARTY, THE
 CHARGING PARTY FILED A "BRIEF IN RESPONSE TO THE RESPONDENT'S
 OBJECTIONS," THE GENERAL COUNSEL FILED AN "OPPOSITION TO THE
 RESPONDENT'S EXCEPTIONS," AND THE RESPONDENT FILED "CROSS EXCEPTIONS OF
 RESPONDENT ACTIVITY AND OPPOSITION TO EXCEPTIONS" FILED BY THE GENERAL
 COUNSEL AND CHARGING PARTY.  ADDITIONALLY, THE GENERAL COUNSEL FILED A
 MOTION TO STRIKE THOSE PORTIONS OF RESPONDENT'S CROSS-EXCEPTIONS WHICH
 RELY ON MATTERS NOT CONTAINED IN THE RECORD OF THE PROCEEDINGS.  THE
 CHARGING PARTY FILED A MOTION TO STRIKE RESPONDENT'S POST-HEARING BRIEF
 AND SUPPORTING MEMORANDUM, AND THE RESPONDENT FILED A RESPONSE AND
 MEMORANDUM IN OPPOSITION TO THE MOTION TO STRIKE PORTIONS OF
 RESPONDENT'S POST-HEARING BRIEF.  THE MOTIONS TO STRIKE ARE HEREBY
 DENIED.  THE AUTHORITY HAS RELIED ONLY ON MATTERS CONTAINED IN THE
 RECORD IN DECIDING THESE CASES.
 
    /2/ FOR A SIMILAR RESULT, SEE UNITED STATES CUSTOMS SERVICE, REGION
 V, NEW ORLEANS, LOUISIANA, 9 FLRA NO. 15 (1982).
 
    /3/ THE AUTHORITY DOES NOT ADOPT THE JUDGE'S RECOMMENDED ORDER,
 HOWEVER, TO THE EXTENT THAT IT WOULD REQUIRE THE RESPONDENT TO GIVE
 RETROACTIVE EFFECT TO WHATEVER FINAL AGREEMENT THE PARTIES REACH
 CONCERNING THE STARTING AND QUITTING TIMES AND LUNCH HOURS OF THE NEWLY
 ESTABLISHED TOURS OF DUTY AT THE HONOLULU AIRPORT (IF DIFFERENT FROM
 THOSE PREVIOUSLY ESTABLISHED UNILATERALLY BY THE RESPONDENT) BY MAKING
 ANY UNIT EMPLOYEE WHOLE FOR OVERTIME THAT MAY HAVE BEEN LOST SINCE THE
 DATE ON WHICH THE RESPONDENT ESTABLISHED THE NEW TOURS OF DUTY.  SUCH AN
 ORDER WOULD BE INCONSISTENT WITH THE AUTHORITY'S CONCLUSION THAT A
 STATUS QUO ANTE REMEDY IS UNWARRANTED IN THE CIRCUMSTANCES OF THIS CASE,
 AND, FURTHER, WOULD BE SPECULATIVE IN TERMS OF IDENTIFYING THE TOURS OF
 DUTY TO WHICH EACH EMPLOYEE MIGHT HAVE BEEN ASSIGNED AND WHICH
 EMPLOYEES, IF ANY, MIGHT HAVE BEEN ASSIGNED OVERTIME.
 
    ADDITIONALLY, INASMUCH AS AN AGREEMENT WAS REACHED BETWEEN THE
 PARTIES WITH REGARD TO THE SAN FRANCISCO AIRPORT THE DAY AFTER
 IMPLEMENTATION OF THE NEW TOURS OF DUTY, IT IS UNNECESSARY TO ORDER
 NEGOTIATIONS AS TO THAT FACILITY.
 
    /4/ GENERAL COUNSEL AND CHARGING PARTY'S MOTIONS TO STRIKE PORTIONS
 OF RESPONDENT'S POST HEARING BRIEF ARE HEREBY DENIED.  TO THE EXTENT
 RESPONDENT'S COUNSEL MAY HAVE RELIED UPON FACTS NOT APPEARING IN THE
 RECORD, ANY ARGUMENT PREDICATED THEREON WAS NOT CONSIDERED BY THE
 UNDERSIGNED IN REACHING THE CONCLUSIONS SET FORTH HEREIN.
 
    /5/ THE FACTS SET FORTH HEREINAFTER ARE IN THE MAIN BASED UPON THE
 STIPULATIONS OF THE PARTIES.  MOST OF THE ORAL TESTIMONY CONTAINED IN
 THE RECORD IS PRIMARILY A REPETITION OF THE STIPULATIONS OR
 CLARIFICATION THEREOF.
 
    /6/ INASMUCH AS THE RECORD IS BARREN OF ANY PROBATIVE EVIDENCE
 SUPPORTING RESPONDENT'S ASSERTIONS IN THIS LATTER REGARD, I FIND SUCH
 DEFENSE TO BE WITHOUT MERIT.  MOREOVER, AND IN ANY EVENT, I FIND THAT
 RESPONDENT WAIVED ANY DEFENSE IT MAY HAVE ENJOYED IN THIS REGARD WHEN IT
 ISSUED NOTICE OF ITS INTENDED CHANGES IN TOURS OF DUTY, ETC., TO NTEU'S
 REGIONAL FIELD REPRESENTATIVE AND THEN PROCEEDED TO ENTER UNRESTRICTED
 NEGOTIATIONS, ALBEIT UNSUCCESSFULLY, WITH SUCH REGIONAL FIELD
 REPRESEN