10:0566(100)CA - Treasury, Customs Service, Region I, Boston, MA and St. Albans, Vermont District Office and NTEU and NTEU Chapter 142 -- 1982 FLRAdec CA



[ v10 p566 ]
10:0566(100)CA
The decision of the Authority follows:


 10 FLRA No. 100
 
 DEPARTMENT OF THE TREASURY
 UNITED STATES CUSTOMS SERVICE
 REGION I, BOSTON, MASSACHUSETTS,
 AND ST. ALBANS, VERMONT DISTRICT OFFICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 142
 Charging Party
 
                                            Case No. 1-CA-547
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 Charging Party and the General Counsel filed exceptions to the Judge's
 Decision, and the Respondent filed an opposition to the General
 Counsel's exceptions.
 
    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, the Authority hereby adopts the
 Judge's findings, conclusions and recommendations.
 
    The complaint herein, amended at the hearing, alleged a violation of
 section 7116(a)(1) and (5) of the Statute based upon the Respondent's
 change in the starting and quitting times of an existing shift at its
 St. Albans, Vermont, District Office without furnishing the Charging
 Party an opportunity to bargain over the change and/or its impact and
 implementation.  The Judge found that the decision to change the
 starting and quitting times of the existing shift constituted a
 negotiable matter under the Statute, but that the Charging Party had
 waived its right to negotiate over the Respondent's decision to effect
 the change by limiting its bargaining request to impact and
 implementation.  In so finding, the Judge relied on record testimony and
 the language of the bargaining request itself to conclude that the
 Charging Party had clearly and unmistakably waived its right to bargain
 over an otherwise negotiable matter.  Having found that the bargaining
 obligation was limited to impact and implementation, and noting that the
 Respondent and the Charging Party had agreed to negotiate subsequent to
 the actual implementation of the shift change, the Judge concluded that
 there was no basis on which to find that the Respondent had implemented
 the change without first having provided the Charging Party an
 opportunity to bargain.
 
    With regard to the Judge's finding that the Charging Party had waived
 its right to negotiate over the decision to effect the change in the
 starting and quitting times of an existing shift, the Authority has
 previously determined that certain rights under the Statute can be
 waived so long as the waiver is clear and unmistakable.  See Nuclear
 Regulatory Commission, 8 FLRA No. 124 (1982), and cases cited therein.
 In the particular circumstances of this case, the Authority adopts the
 Judge's finding that the Charging Party clearly and unmistakably waived
 its right to negotiate over the Respondent's decision to effect the
 change.  With respect to that portion of the complaint alleging a
 failure to bargain over impact and implementation, the Authority adopts
 the Judge's finding that there was no evidence to indicate that the
 Respondent had refused to bargain prior to implementing the change.  As
 to any bargaining obligation which may have existed after the change was
 implemented, the Authority further adopts the Judge's finding that the
 Respondent solicited bargaining proposals from the Charging Party even
 after the change had been implemented and, therefore, there was no
 evidence to indicate that the Respondent had acted in derogation of its
 bargaining obligation in this regard.
 
                                ORDER /1A/
 
    IT IS HEREBY ORDERED that the complaint in Case No. 1-CA-547 be, and
 it hereby is, dismissed.  
 
 issued, Washington, D.C., December 3, 1982
 
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Martin J. Ward, Esquire
          For the Respondent
 
    Richard D. Zaiger, Esquire
    Daniel F. Sutton, Esquire
          For the General Counsel
 
    William Milton, Esquire
          For the Charging Party
 
    Before:  LOUIS SCALZO
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called the "Statute"),
 and the Rules and Regulations issued thereunder.
 
    The complaint as amended at the hearing alleges that the Department
 of the Treasury, United States Customs Service, Region 1, Boston,
 Massachusetts, and St Albans, Vermont, District Office (Respondent)
 violated Sections 7116(a)(1) and (5) of the Statute by unilaterally
 changing existing conditions of employment at its St. Albans, Vermont
 District Office on October 27, 1980, "without furnishing the National
 Treasury Employees Union or National Treasury Employees Union Chapter
 142 (NTEU, Union or Charging Party) with an opportunity to bargain
 concerning said change and/or the impact and implementation of said
 change."
 
    The record presented no factual issue concerning implementation of
 the change by the Respondent.  The parties stipulated that it involved
 the substitution on October 27, 1980, of a 7:00 a.m. to 3:00 p.m. shift
 for a prior 8:00 a.m. to 4:00 p.m. shift.  The new work schedule was
 established for a Customs inspector assigned to perform duties on Monday
 through Saturday in connection with the arrival in St. Albans of "The
 Montrealer," an Amtrak train operating between Washington, D.C. and
 Montreal, Canada.
 
    For several years a Customs inspector from the Port of Highgate
 Springs, Vermont, located within the Respondent's St. Albans, Vermont
 District Office, has been assigned to provide daily Customs service at
 St. Albans for this northbound Amtrak train.  These services are
 provided on a regular basis on Monday through Saturday, and on overtime
 on Sundays and holidays.  The inspector assigned to perform this duty
 reports to Respondent's facility at the Port of Highgate Springs at the
 beginning of the shift and is informed of the train's arrival time by a
 supervisor.  The inspector then drives to St. Albans in a government
 vehicle.  Upon completion of inspectional duties in St. Albans the
 inspector returns to Highgate Springs to work the remainder of the eight
 hour shift.  The entire process generally takes one to two hours.
 Occasionally it is unnecessary for the assigned inspector to travel to
 St. Albans, as sometimes another inspector assigned to work in St.
 Albans is available to meet the northbound "Montrealer." Prior to the
 change involved the Customs inspector given this duty would have been
 assigned a regular 8:00 a.m. to 4:00 p.m. daytime shift.  The parties
 stipulated that the change in duty hours necessitated by revision of the
 Sunday and holiday schedule of the train comprised no part of the
 unilateral change alleged in the complaint.
 
    Counsel for the Respondent argues that the Respondent was not
 obligated to bargain concerning the decision to establish the 7:00 a.m.
 to 3:00 p.m. shift, that the Union waived the right to
 pre-implementation impact and implementationbargaining;  that the Union
 did not completely perfect its right to bargain on impact and
 implementation by supplying written proposals in accordance with the
 terms of the collective bargaining agreement;  that Respondent's
 cancellation of a post-implementation meeting scheduled by the parties
 for the purpose of negotiating impact and implementation did not
 constitute a refusal to bargain;  that the case essentially involves
 issues relating to contract interpretation which should be resolved
 through the parties' grievance and arbitration procedure;  and that
 counsel for the General Counsel has not met its burden of establishing
 violations of Sections 7116(a)(1) and (5) of the Statute.
 
    The parties were represented by counsel during the hearing, and were
 afforded full opportunity to be heard, adduce relevant evidence, and
 examine and cross-examine witnesses.  Helpful post-hearing briefs were
 received from counsel representing the parties.  These have been duly
 considered.  Based upon the entire record herein, including my
 observations of the witnesses and their demeanor, the exhibits and other
 relevant evidence adduced at the hearing, /1/ and the briefs, I make the
 following findings of fact, conclusions and recommendation.
 
                             Findings of Fact
 
 Stipulated Facts
 
    The following facts stipulated by the parties, are accepted as true:
 
          1.  The charge in this proceeding was filed with the Federal
       Labor Relations Authority by the Union on November 10, 1980, and a
       copy thereof was served on Respondent on November 12, 1980.  (Tr.
       11-12)
 
          2.  The NTEU is the exclusive bargaining representative of a
       bargaining unit which includes all non-professional employees at
       Respondent's St. Albans, Vermont District Office excluding all
       professional employees, management officials, employees engaged
 
 in
 
       federal personnel work in other than a purely clerical capacity,
       confidential employees, guards, and supervisors as defined in the
       Act.  (Tr. 12).
 
          3.  The change in the starting and finishing times of the 2H
       shift was implemented on Monday, October 27, 1980, at 7:00 a.m.
       (Tr. 13).
 
          4.  Jt. Exh. 1, a collective bargaining agreement between NTEU
       and the United States Customs Service has been in effect since
       July 1, 1980.  (Tr. 13-14).  /2/
 
       Respondent Notifies NTEU of Impending Change in Tour of Duty
 
    On Saturday, October 18, 1980, a letter dated October 16, 1980, from
 L. D. Magnan, District Supervisor, Amtrak, was delivered to the office
 of Robert Sullivan, Port Director, Highgate Springs, Vermont.  (Tr.
 121).  The letter informed that the weekday "Montrealer" would, as of
 October 27, 1980, arrive in St. Albans, Vermont at 7:35 a.m.  The letter
 and accompanying train schedule change were brought to Mr. Sullivan's
 attention on Monday, October 20, 1980, during a telephone conversation
 that Mr. Sullivan had with Mr. R. K. Cyr, Acting Port Director.  (Tr.
 128-129).  Mr. Sullivan was then temporarily performing duties in St.
 Albans, Vermont.  Mr. Cyr was instructed to send the information
 relating to the schedule change to Mr. Glen M. Gurwit, President of
 Chapter 142 of NTEU (Tr. 123), as Mr. Sullivan was aware that the
 schedule change would involve a shift change.  (Tr. 130).
 
    On the same date, October 20th, Mr. Cyr personally hand delivered a
 letter to Mr. Gurwit concerning the change.  (Tr. 32).  The letter and
 enclosures described the change in the Amtrak weekday schedule (2H
 shift), and advised that the weekday 2H shift would become a 7:00 a.m.
 to 3:00 p.m. shift on October 27, 1980.  (G.C. Exh. 2).  The letter to
 Mr. Gurwit reflected the statement that the notification was being made
 "in accordance with Article 21, Section 10 of the contract." Article 21,
 Section 10 provided:
 
          Section 10.  When the employer finds it necessary to change the
       hours of work, shifts, or tours of duty for an organization al
       segment, location or work group, the union shall be provided with
       advance notice and an opportunity to bargain over the substance,
       implementation, or impact of such change as appropriate.  (Jt.
       Exh. 1 at page 131).
 
    Mr. Gurwit advised Mr. Cyr that he was surprised by the short period
 of time between the date of notice of the change and the implementation
 date, and that he would "probably have to pursue it further with the
 Union." (Tr. 33).  On the same date or the day after, Mr. Gurwit
 discussed the issue with Mr. Bill Milton of NTEU, and was advised that
 he should make a request to bargain concerning impact and implementation
 of the shift change.  (Tr. 71-72).  On June 23, 1980, Mr. Gurwit
 conferred with Mr. Michael Banas, Vice President and Chief Steward;  and
 Mr. John Wilda, a Union Steward.  (Tr. 34-35).  They decided that it was
 an important issue, that NTEU should submit a written "request to
 negotiate both the impact and implementation of the . . . change," and
 that Mr. Gurwit should prepare the request.  (Tr. 35-36).  Mr. Gurwit
 acknowledged that their determination to request negotiations did not
 then contemplate a request to negotiate concerning the Respondent's
 decision to effect a change.  (Tr. 74).  NTEU Bargaining Request
 
    Between 7:00 p.m. and 10:00 p.m. on Thursday, October 23, 1980, Mr.
 Gurwit prepared a bargaining request.  (Tr. 36, G.C. Exh. 3).  His
 testimony established that the request, drafted in letter form, was for
 the purpose of effecting negotiations concerning "the effects that this
 change was going to have on the work force at Highgate Springs." (Tr.
 38).  At another point he stated, "my intention was to sit down and to
 discuss the change and the effect that it would have on the bargaining
 unit." (Tr. 99-100).  Mr. Gurwit gave the letter to Mr. Banas and asked
 him to deliver it to Mr. Sullivan or Mr. Cyr on October 24th, the next
 day.  (Tr. 36-37).  The letter, dated October 24, 1980, stated the
 following:
 
          NTEU requests to negotiate and discuss the implementation of
       your proposed hours-of-work and schedule changes, as well as to
       discuss and negotiate the impact said changes will have on the
       employees who will be affected.  This is in accordance with
       Article 21, Section 10 of the National Agreement.  (G.C. Exh. 3).
       /3/
 
    The NTEU request to bargain did not include proposals, nor any
 indication of NTEU's preferences as to a date when negotiations might
 occur.
 
    Section 4 of Article 37 provided the following procedure concerning
 the submission of proposals in connection with impact and implementation
 bargaining:
 
          Section 4.  If the Union wishes to negotiate concerning the
       implementation or impact on employees of the proposed change(s),
       the union will submit written proposals to the employer within a
       reasonable period after notification of the proposed change(s).
       The union agrees that any proposals submitted in the context of
       impact bargaining will be related to the proposed change(s) and
       will not deal with extraneous matters.  Negotiations will normally
       begin within seven (7) calendar days after receipt by the employer
       of the union's proposals.  (Jt. Exh. 1 at page 219-220).
 
    Counsel for the Respondent argues that the Union's limited request
 for impact and implementation bargaining under Section 10 of Article 21
 was consistent with the provisions of Section 2, Article 21 of the
 agreement.  The latter provision provides:
 
          Section 2.  For employees engaged in inspectional activities,
       law enforcement activities, and their required support personnel
       (normally those employees working under the jurisdiction of the
       Office of Border Operations), the employer shall establish,
       maintain, and change those shifts, tours of duty and hours of work
       to best promote the efficient and effective accomplishment of the
       mission and operations of the Service.
 
    It was contended that in the limited area involving employees engaged
 in inspectional and law enforcement activities, such as are involved
 here, the parties agreed to give Respondent the right to establish and
 change shifts, tours of duty, and hours of work;  and that Sections 2
 and 10 operate to relieve the Respondent of the obligation to bargain
 concerning such decisions.  Respondent's Reply to NTEU Bargaining
 Request
 
    On October 24, 1980, Mr. Sullivan received Mr. Gurwit's bargaining
 request.  On the same date he phoned Mr. Gurwit shortly after Mr. Gurwit
 reported for work at 4:00 p.m. (Tr. 41).  Mr. Sullivan acknowledged
 receipt of the bargaining request, agreed "to get together . . . to
 discuss the change," /4/ and asked Mr. Gurwit, when the meeting should
 take place.  (Tr. 41).
 
    Mr. Gurwit orally expressed the intention to bargain as soon as
 possible (Tr. 41), but said that he wanted Mr. Banas and Mr. Wilda to
 attend.  (Tr. 124).  Both Mr. Gurwit and Mr. Sullivan wanted the meeting
 to occur when they and Mr. Banas, and Mr. Wilda, could be available
 without having to summon someone in solely because of the meeting.  (Tr.
 124).  They agreed to meet at 4:00 p.m. on October 27, 1980, or after
 implementation of the shift change.  (Tr. 42, 126-127).  /5/ Mr.
 Gurwit's testimony clearly established that the date and time was
 established by mutual agreement.  (Tr. 55, 74).  He stated:
 
          (We) decided that the earliest possibly (sic) time and date for
       a meeting would be the following Monday . . . October 27th.  (Tr.
       41).
 
 At another point he said:
 
          I also wanted John Wilda and Michael Banas to be able to attend
       the meeting since they had discussed the change with me.  So Mr.
       Sullivan and I agreed that the soonest possible time and date
       would be the following Monday early in the afternoon.
 
                                .  .  .  .
 
          Yes, Mr. Sullivan and I agreed that we would have a meeting at
       4:00 o'clock Monday afternoon, October 27th.  (Tr. 42).
 
 Evidence Relating to Alleged NTEU Request for Postponement of Shift
 Change
 
    Mr. Gurwit testified that after reaching the agreement outlined he
 said that it was unfortunate that they could not meet until after the
 shift change was scheduled to go into effect, and that he asked Mr.
 Sullivan if implementation could be deferred until after the meeting.
 (Tr. 42-43).  According to Mr. Gurwit, Mr. Sullivan said, "I'm very
 sorry, I wish it could be otherwise, but the railroad didn't give me
 enough warning, and so we can't inconvenience AMTRAK;  we'll just have
 to let the shift change go as it is." (Tr. 43).  Mr. Gurwit then related
 that he said, "If that's the way it's got to be, well, we'll just have
 to talk about it on Monday." (Tr. 43).  Mr. Sullivan could not recall
 any NTEU request relating to the October 27th meeting, and stated that
 he received no specific proposals in connection with the proposed shift
 change.  (Tr. 127).  It did appear that the Respondent could have
 assigned personnel on an overtime basis to meet "The Montrealer,"
 without effectuating a shift change on October 27th.  (Tr. 129).
 Although the prospect of a delay in implementation involved the
 possibility of operational problems (Tr. 131-132), the cost of overtime
 would not have been assessed against the Respondent.  (Tr. 132).
 
    The period elapsing between the October 24, 1980 Gurwit-Sullivan
 telephone conversation and implementation on Sunday morning, October
 27th, was not utilized by the parties because of agreement to meet on
 October 27th at 4:00 p.m.  It was clear that time to meet was available,
 and that the negotiations would not have posed any special problem.  Mr.
 Gurwit was "quite familiar" with work schedules pertaining to the Port
 of Highgate Springs, and as President of the Union, he had access to
 Customs inspector work schedules (Tr. 20).  Also, there had been prior
 changes of the same shift.  In October or November of 1976 the
 Respondent had effectuated a change to the 7:00 a.m. to 3:00 p.m. shift,
 or a change identical to the one involved here.  (Tr. 25-26).
 Subsequently, in March of 1980, the 7:00 a.m. to 3:00 p.m. shift was
 eliminated and replaced with the 8:00 a.m. to 4:00 p.m. shift, the one
 in place just prior to the change effectuated in this case.  Mr. Gurwit,
 Mr. Banas, and Mr. Wilda participated in discussions with Respondent at
 the time of the March 1980 change.  (Tr. 67).  The objective of the
 Union at that time was to eliminate shifts involving a single employee
 as it interfered with carpooling.  (Tr. 27).  However, at the time of
 the March 1980 change, "The Montrealer" had been arriving in St. Albans
 at about 8:30 a.m., thus it was possible for the Customs inspector
 involved to be assigned to a regular daytime 8:00 a.m. to 4:00 p.m.
 shift.  (Tr. 28).
 
    As in the past NTEU wished to avoid the creation of a new 7:00 a.m.
 to 3:00 p.m. shift for a single employee because the individual assigned
 would be inconvenienced in connection with carpooling.  (Tr. 27).  In
 fact the Charging Party established through Mr. Banas that the change
 would have operated to cause him to drive his own car rather than
 participate in a carpool, and that this element was deemed
 objectionable.  (Tr. 102).  Facts Relating to Cancellation of October
 27, 1980 Meeting
 
    On October 27, 1980, at about 2:30 p.m. Mr. Gurwit phoned Mr.
 Sullivan and confirmed plans relating to the 4:00 p.m. meeting.  (Tr.
 45-46).  Mr. Sullivan advised Mr. Gurwit that he and Mr. Cyr would be
 representing the Respondent.  (Tr. 45).
 
    Mr. Sullivan thereafter had a conversation with Mr. John Casassa, a
 Labor Relations Specialist assigned to the Respondent's Boston Regional
 Office.  (Tr. 103-104).  Mr. Sullivan explained the purpose of the
 scheduled meeting (Tr. 104), and Mr. Casassa inquired whether the Union
 had submitted written proposals in accordance with the provisions of the
 collective bargaining agreement.  (Tr. 104, 127-128).  Mr. Sullivan was
 not aware that written proposals might be required (Tr. 133), and
 informed Mr. Casassa that written proposals had not been received.  (Tr.
 104, 127-128, 133).  Because written proposals had not been received,
 Mr. Sullivan was instructed to cancel the scheduled meeting, and advise
 NTEU that Mr. Casassa's office would handle the matter.  (Tr. 104).  Mr.
 Casassa also instructed Mr. Sullivan that because of the absence of
 written proposals, he should inform Mr. Gurwit that, "we are not
 prepared to meet at this time." (Tr. 128)
 
    At 3:15 p.m. Mr. Sullivan phoned Mr. Gurwit at home and said that he
 was sorry, but that he had received instructions to cancel the meeting,
 that the Boston Regional Office wished to be involved, and that Customs
 was not then prepared to discuss the shift change issue.  (Tr. 47, 128).
  /6/ Respondent's Request for Proposals
 
    By letter dated October 30, 1980, Mr. T. A. Gleason, Director, of
 Respondent's Labor Relations Office in the Boston Regional Office, wrote
 to Mr. Gurwit to request "any proposals you have relative to the work
 shifts necessitated by the AMTRAK schedule change as required by Article
 37, Section 4 of the National Agreement . . .  ." (R. Exh. 2).  /7/
 
    By letter dated November 10, 1980 Mr. Gurwit responded to Mr.
 Gleason's October 30, 1980 letter with proposals, noting that they were
 being forwarded in accordance with Article 37, Sections 4 and 6 of the
 collective bargaining agreement.  /8/ It was proposed that the 2H, 8:00
 a.m. to 4:00 p.m. shift be retained as in the past;  that a prior
 practice of utilizing a Customs inspector occasionally available in St.
 Albans be continued;  and that a Customs inspector be specially assigned
 on an overtime basis from the daytime 8:00 a.m. to 4:00 p.m. shift to
 inspect "The Montrealer" before 8:00 a.m., on occasions when the Customs
 inspector working in St. Albans would be otherwise unavailable.
 
    By letter dated December 2, 1980, Mr. T. A. Gleason, responded to Mr.
 Gurwit's November 10, 1980 proposals and took the position that the
 Union's proposals were not negotiable.  (R. Exh. 4).
 
                        Discussion and Conclusions
 
    Section 7106(b)(1) of the Statute provides in pertinent part, that:
 
          (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 organization
       subdivision, work project, or tour of duty . . .  .
 
    If the establishment of an additional tour of duty directly relates
 to the numbers, types, or grades of employees assigned to the new tour
 of duty, the obligation to meet and confer with the Union concerning the
 decision to establish the new tour of duty, would come within the sole
 discretion and election of the agency and would therefore not be a
 negotiable matter.  However, if the number of employees assigned to the
 tour of duty, the type or grade of such employees, and the number of
 positions remains the same as before the change, the establishment of
 the new tour of duty cannot be treated as a matter negotiable only at
 the election of the agency.  National Treasury Employees Union Chapter
 66, 1 FLRA No. 106 (September 13, 1979);  American Federation of
 Government Employees, AFL-CIO, International Council of U.S. Marshals
 Service Locals, 5 FLRA No. 66 (April 29, 1981);  Internal Revenue
 Service and Brookhaven Service Center, 5 FLRA No. 64 (April 21, 1981).
 In the instant case it was shown that the establishment of the 7:00 a.m.
 to 3:00 p.m. shift did not explicitly relate to the numbers, types, and
 grades of employees assigned so as to come within the meaning of Section
 7106(b)(1) of the Statute.  For this reason the decision to establish
 the new shift would have been, in the absence of evidence of any waiver,
 fully negotiable as of the time the Respondent's proposal was first
 received by NTEU on October 20, 1980.
 
    Following receipt of the proposal, the NTEU decided specifically to
 limit its October 24, 1980 bargaining request to impact and
 implementation bargaining after two Union strategy meetings relating to
 the subject.  The record indicates no uncertainty in this area.  The
 NTEU clearly and cogently sought and requested impact and implementation
 bargaining only.  /9/ It is unnecessary to dwell upon this element and
 the obvious differences in approach which might be associated with
 Respondent's pre-negotiation preparations for decision bargaining as
 distinct from more limited impact and implementation bargaining;  nor is
 it necessary to speculate concerning the mischief which would be
 generated by a holding to the effect that impact and implementation
 bargaining requests impliedly incorporate requests to bargain concerning
 the formulation of decisions which change the terms and conditions of
 employment.
 
    This is not a case where the Union requested bargaining in general
 terms, nor one where a request for decision bargaining may be inferred
 from the facts.  Here, the Union agreed to complete impact and
 implementation bargaining after implementation of the decision.  In
 order to establish the waiver of any right under the statute the waiver
 must be clear and unmistakable.  Department of the Air Force, Scott Air
 Force Base, Illinois, 5 FLRA No. 2 (January 15, 1981);  Oklahoma City
 Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA No. 82
 (June 27, 1980).  Such waivers are not to be lightly inferred.
 Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA No. 82
 (November 12, 1980).  However, in this case the evidence established
 that the Union clearly and unmistakably waived any right that it had to
 bargain concerning the decision to establish the 7:00 a.m. to 3:00 p.m.
 shift.
 
    The bargaining obligation having been established, the basic factual
 issue posed for resolution revolves about the question of whether the
 Respondent changed the hours of the 8:00 a.m. to 4:00 p.m. shift to 7:00
 a.m. to 3:00 p.m. without providing the Union with a pre-implementation
 opportunity to bargain concerning impact and implementation of the
 change (G.C. Exh. 1-C, General Counsel's Brief at 2 and 6).  The factual
 picture presented precludes a finding that the Respondent effectuated
 the change without first providing the NTEU an opportunity to bargain to
 the extent required and requested.  Instead, the record shows that the
 Union agreed to participate in impact and implementation negotiations
 after the Respondent instituted the shift change.
 
    The October 24th bargaining request received did not ask for
 additional time, but merely requested impact and implementation
 bargaining.  Upon receipt of the request Mr. Sullivan phoned to ask Mr.
 Gurwit when the parties should meet.  The parties thereafter agreed to
 meet at 4:00 p.m. on October 27, 1980, after implementation of the shift
 change at 7:00 a.m. on October 27, 1980.  In effect the Union acquiesced
 in light of the Amtrak schedule change.  This agreement operates to
 preclude a finding that the Respondent implemented the change without
 providing an opportunity to bargain prior to implementation.
 
    Assuming that the Respondent was specifically requested to postpone
 implementation, and that Respondent refused to do so, it cannot be said
 that such a refusal would have been unreasonable in the light of facts
 presented.  The Union received six days notice of the change.  The
 record clearly established that the Respondent acted diligently to
 provide such notice as soon as possible after receiving information from
 Amtrak that the train schedule would be changed.  The matter involved
 was not complex, and there was no indication that additional time was
 needed to prepare proposals relating to impact and implementation.  The
 parties had discussed similar shift changes in the past and Mr. Gurwit
 and other Union officials were quite familiar with the issues involved.
 Evidence introduced at the hearing established that the Union was merely
 concerned with the prospect of an impact on the carpooling arrangements
 of the employee assigned to the new shift.  In the context outlined the
 six day notice provided was adequate to permit the Union to bargain
 effectively.  See U.S. Department of the Air Force, 47th Air Base Group
 (ATC), Laughlin Air Force Base, Texas, 4 FLRA No. 65 (September 30,
 1980).
 
    In addition to the considerations set out, it is also noted that
 testimony introduced for the purpose of showing a refusal on the part of
 Mr. Sullivan to defer implementation was not credited.  Careful
 consideration of the evidence indicates that it is unlikely that such a
 discussion occurred;  or that if the discussion occurred, that it had
 the meaning and significance which Mr. Gurwit described.  /10/ Mr.
 Sullivan's prompt response to the Union's bargaining request, his
 inquiry as to when negotiations should occur, and Mr. Gurwit's strong
 statements indicating his full agreement with the time and date of the
 meeting all indicate the absence of bad faith bargaining on Mr.
 Sullivan's part, and tend to negate any inference of unreasonable
 refusal to provide additional time in which to bargain prior to
 implementation, or to extend the date of implementation.
 
    Mr. Sullivan acknowledged that the October 27, 1980 shift change
 could have been covered on an overtime basis rather than implementing
 the shift change scheduled;  admitted that someone could have been
 assigned to meet the train;  and noted that Amtrak would not have been
 inconvenienced in any event.  With this background it is not believable
 that Mr. Sullivan would have taken the implacable position described by
 Mr. Gurwit.  In connection with the resolution of this factual issue,
 Mr. Gurwit's demeanor and credibility in other areas of interest were
 given consideration.  These also persuaded that his version of
 conversation with Mr. Sullivan should not be credited insofar as it
 pertained to an alleged refusal to defer implementation of the shift
 change.  Mr. Gurwit testified that he received no assistance in
 preparing the bargaining request;  however, his testimony established
 that the content of the bargaining request was developed after
 conferring with Mr. Milton of NTEU, and after meeting with Mr. Banas and
 Mr. Wilda of Chapter 142.  Mr. Gurwit's testimony concerning the
 conversation with Mr. Milton was vague and evasive, and in conflict with
 a prior written statement provided to the authority during investigation
 of the case.  Lastly, he was a vague and reluctant witness during other
 facets of cross-examination.
 
    Although a failure to bargain after implementation is not
 specifically alleged in the complaint, and not raised as an issue by
 counsel representing the General Counsel (G.C. Exh. 1-C, General
 Counsel's Brief at 6), it is observed that the Respondent did not refuse
 to bargain with the Union after implementation.  The record shows that
 the Respondent solicited proposals in accordance with the provisions of
 Section 4, Article 37 of the collective bargaining agreement.  However,
 proposals received from the Union related solely to the Respondent's
 decision to effect a shift change.  Such proposals would have had the
 effect of negating or reversing management's decision itself, and
 therefore would not constitute proposals relating to the impact and
 implementation of the decision.  /11/ Under the circumstances presented
 here Respondent had no obligation to bargain concerning such proposals.
 American Federation of Government Employees, AFL-CIO, Local 3805, 5 FLRA
 No. 94 (May 28, 1981).
 
    In concluding it is observed that the essence of the unfair labor
 practice complaint involved in this case concerns differing and arguable
 interpretations of the parties' collective bargaining agreement, as
 distinguished from a clear and patent breach of the agreement.  That is,
 the issues merely pose matters of contract interpretation.  The proper
 forum for the resolution of such disputes rests in the grievance and
 arbitration procedures adopted by the parties and not the unfair labor
 practice procedures.  Social Security Administration, District Offices
 in Denver, Pueblo and Greeley, Colorado, et al., 3 FLRA No. 10 (April
 14, 1980);  U.S. Patent and Trademark Office, 3 FLRA No. 123 (July 31,
 1980);  Oklahoma City Air Logistics Center, Tinker Air Force Base,
 Oklahoma, 3 FLRA No. 82 (June 27, 1980);  United States Army Aviation
 Center, Fort Rucker, Alabama, 1 FLRA No. 98 (August 15, 1979);
 Department of Health, Education and Welfare, Social Security
 Administration, 1 FLRA No. 37 (May 9, 1979).
 
    The Respondent relies heavily upon interpretations to be given to
 Sections 2 and 10 of Article 21, and Section 4 of Article 37, of the
 collective bargaining agreement.  Sections 2 and 10 of Article 21
 arguably could be construed as relieving the Respondent of the
 obligation to bargain concerning the decision to create a new 7:00 a.m.
 to 3:00 p.m. shift.  Thus, an alleged refusal to bargain concerning the
 decision to establish the new shift would necessarily involve an
 interpretation of Sections 2 and 10.  Section 4 of Article 37 operates
 to require the Union to submit written impact and implementation
 proposals to the Respondent within a reasonable period after
 notification of any proposed change.  It is admitted that this was not
 done, and there is no evidence that the Respondent specifically waived
 this prerequisite.  Arguably at least, Section 4 could be interpreted as
 providing a basis for excusing the Respondent from bargaining on impact
 and implementation until the Union complied with Section 4 of Article
 37.  /12/
 
    Upon the basis of the foregoing, it is recommended that the Authority
 issue the following Order pursuant to 5 C.F.R. 2423.29(c).
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 1-CA-547, be, and
 it hereby is, dismissed.
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
 Dated:  July 23, 1981
 
                             Washington, D.C.
 
 
    /1A/ In view of the above, it is not necessary to decide the
 Respondent's motion that the Authority take cognizance of an arbitration
 award rendered in a separate proceeding between the U.S. Customs
 Service, Region 5 and the National Treasury Employees Union purportedly
 dealing with relevant issues of contract interpretation.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Counsel for the General Counsel moved to correct the transcript
 as follows:
 
    Page Line Change To
 
    32 4 "Glan" "Glen"
 
    34 6 "of" "on"
 
    37 9 "supervisor" "Supervisory"
 
    37 21 "work" "working"
 
    41 22 "possibly" "possible"
 
    84 16 "protective" "protected"
 
    Under authority provided in Section 2423.19(r) of the Regulations, 5
 C.F.R. 2423.19(r), the motion to correct is granted.
 
 
    /2/ Certain segments of the agreement, not relevant here, were
 identified by the parties as being inoperative because of a pending
 negotiability appeal.  (Tr. 13-14).
 
 
    /3/ Mr. Gurwit testified that he received no assistance in preparing
 the bargaining request.  (Tr. 37).  However, his testimony, reflected
 that he received counseling from Mr. Milton of NTEU, and from Mr. Banas
 and Mr. Wilda, officers of Chapter 142.  The letter prepared conformed
 to the advice received from Mr. Milton, and was otherwise consonant with
 the approach agreed upon by Mr. Gurwit, Mr. Banas, and Mr. Wilda.
 
 
    /4/ In light of Mr. Gurwit's and Mr. Sullivan's reference to Section
 10 Article 21, of the collective bargaining agreement, it must be
 concluded that Mr. Sullivan agreed to bargain only to the extent
 requested by Mr. Gurwit in the October 24, 1980 bargaining request.
 
 
    /5/ Mr. Sullivan was scheduled to be available until 5:00 p.m., on
 October 27th.  Mr. Banas and Mr. Wilda were scheduled to report for work
 at 4:00 p.m.  Mr. Gurwit planned to make special arrangements to attend
 the meeting.  (Tr. 127).
 
 
    /6/ The Respondent's Boston Regional Office took the position that
 bargaining authority had been delegated to the Labor Relations Office in
 the Boston Regional Office by the Regional Commissioner, and further
 that it had not been sub-delegated to lower organizational levels.  (Tr.
 108-109).  However, the only issue that concerned the Respondent at the
 time of the Casassa-Sullivan telephone conversation was the absence of
 written proposals.  (Tr. 109-110).
 
 
    /7/ Mr. Casassa's testimony established that at the time of the
 October 30, 1980 request for proposals, he was not aware of the Union's
 charge in this case.  (Tr. 104).  It is here noted that the charge was
 dated October 30, 1980, and that the parties stipulated that it was not
 filed with the Authority until November 10, 1980, and not served on the
 Respondent until November 12, 1980.
 
 
    /8/ Section 6, insofar