15:0309(67)CA - Customs Service, Region I (Boston, MA) and NTEU -- 1984 FLRAdec CA



[ v15 p309 ]
15:0309(67)CA
The decision of the Authority follows:


 15 FLRA No. 67
 
 U.S. CUSTOMS SERVICE
 REGION I
 (BOSTON, MASSACHUSETTS)
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 1-CA-20325
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices and recommending that it be ordered to
 cease and desist therefrom and take certain affirmative action.  The
 Judge further found that the Respondent had not engaged in certain other
 alleged unfair labor practices and recommended dismissal of the
 complaint with respect to them.  Exceptions to the Judge's Decision were
 file;  by the Respondent and the General Counsel, and both parties also
 filed oppositions to the other'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.  /1/ Upon consideration of
 the Judge's Decision and the entire record, the Authority hereby adopts
 the Judge's findings, conclusions and recommended Order, excepts as
 modified below.
 
    In agreement with the Judge, the Authority finds that the statements
 made by the Respondent's Montreal Branch Chief to employees concerning
 the purported reason for the removal of stools used by customs
 inspectors in Montreal, i.e., because of the filing of a grievance by an
 employee in the Boston District who had been denied the use of a stool,
 tended to coerce and restrain employees in the exercise of rights
 guaranteed by the Statute in violation of section 7116(a)(1).  In
 reaching such a conclusion, the Authority finds that the Montreal Branch
 Chief was acting as an agent of the Respondent, at which level there
 exists the unit of exclusive recognition involved herein, and that
 therefore the Branch Chief's conduct was binding upon the Respondent.
 Department of Health and Human Services, Social Security Administration,
 Office of Program Operations and Field Operations, Sutter District
 Office, San Francisco, California, 5 FLRA 504, 505 n.2 (1981).
 
    The Authority also adopts the Judge's dismissal of that portion of
 the complaint alleging a violation of section 7116(a)(1) and (2) of the
 Statute on the basis that the removal of stools in Montreal was due to
 the filing of the grievance in Boston.  The Judge found that the removal
 was based solely on the Respondent's desire for uniformity of working
 conditions throughout the region even though it was made pursuant to
 information disclosed during the grievance proceeding to the effect that
 stools were being used by employees in Montreal.  In the Authority's
 view, the General Counsel has failed to establish that the removal of
 stools in Montreal was as a reprisal for the exercise of any protected
 activity or was motivated by union animus.  Rather, as found by the
 Judge, although the Respondent first learned of the apparent
 inconsistency in policy regarding the use of stools by customs
 inspectors during the grievance proceeding, it took action to remove
 stools in Montreal which was motivated solely by the Respondent's desire
 for a uniform practice within the region.  Under these circumstances,
 the Authority finds that the Respondent's action in removing the stools
 did not itself constitute a violation of section 7116(a)(1) and (2) of
 the Statute.
 
    Finally, with regard to the allegation that the Respondent violated
 section 7116(a)(1) and (5) of the Statute by unilaterally removing the
 stools without affording the Charging Party an opportunity to bargain
 over the decision or its impact and implementation, the Authority finds
 that the use of stools constituted a method or means of performing work
 within the meaning of section 7106(b)(1) of the Statute.  /2/ While the
 Judge sought to distinguish the use of stools during "down time," i.e.,
 when no passengers were being processed, from their use during such time
 as employees were performing their inspectional duties, it appears from
 the record that, employees were engaged in inspectional activities even
 during periods referred to as "down time." Thus, the record evidence
 discloses that even when the inspectors were not actually processing
 passengers or performing physical inspections of passengers' baggage,
 they were nonetheless required to be at their duty stations to observe
 passengers approaching the inspection area.  Where there were no
 passengers to be processed, employees were permitted to leave their duty
 stations and could avail themselves of an officer's lounge or other
 facilities at the airport.  The record further indicates that, in
 addition to observing approaching passengers, the inspectors were
 required to ensure that no parcels were being moved along the floor and
 outside the employees' visual range, a function which could not be
 accomplished while seated, and also to be able to react immediately to
 potentially dangerous situations without being hindered by the presence
 of stools in the baggage inspection area.  On this basis, the Authority
 finds that the use of stools by employees engaged in inspectional duties
 concerned a method or means of performing such work at all times
 relevant herein and that therefore the Activity's decision to remove
 them was outside the required scope of bargaining under section
 7106(b)(1) of the Statute.  /3/ Of course, the Respondent was obligated
 to notify the Charging Party in advance of the elimination of the stools
 and to afford the Charging Party an opportunity to bargain over the
 impact and implementation of such a change.  The record reveals that the
 Charging Party was so notified, but failed to request bargaining over
 its impact and implementation, seeking instead to bargain over the
 decision itself by proposing that the use of stools be retained.
 Accordingly, the Respondent cannot be found to have violated section
 7116(a)(1) and (5) in this respect and this aspect of the complaint
 shall be dismissed.
 
                                   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 I, Boston,
 Massachusetts shall:
 
    1.  Cease and desist from:
 
          (a) Making statements which tend to interfere with, restrain or
       coerce its employees in the exercise of their rights assured by
       the Federal Service Labor-Management Relations Statute.
 
          (b) In any other like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Post at the Montreal Pre-Clearance Station 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 Commissioner of Region I, or his designee, and shall
       be posted and maintained for 60 consecutive days thereafter, in
       conspicuous places, including bulletin boards and other places
       where notices to employees are customarily posted.  Reasonable
       steps shall be taken to insure that such Notices are not altered,
       defaced, or covered by any other material.
 
          (b) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region I, in writing,
       within 30 days from the date of this Order, as to what steps have
       been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the complaint in Case No. 1-CA-20325
 insofar as it alleges any other violations of the Statute be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., July 18, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, 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 make statements which tend to interfere with, restrain or
 coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL NOT in any other like or related manner interfere with,
 restrain, or coerce our employees in the exercise of their rights
 assured by the Statute.
                                       (Activity)
                                       By:  (Signature) (Title)
 
    Dated:  . . .
 
    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 its provisions, they may communicate directly with the Regional
 Director, Region I, Federal Labor Relations Authority, whose address is:
  441 Stuart Street, 9th Floor, Boston, Massachusetts 02116 and whose
 telephone number is:  (617) 223-0920.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Martin J. Ward, Esquire
    Ms. Lorraine Iovanni
    For the Respondent
 
    Richard D. Zaiger, Esquire
    James R. Collins, Esquire
    For the General Counsel
 
    Mr. William P. Milton, Jr.
    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.
 7101, et seq. and the Rules and Regulations issued thereunder, Fed.
 Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46, No. 154, August 11,
 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
 
    Pursuant to an amended charge first filed on July 14, 1982, by the
 National Treasury Employees Union, (hereinafter called the NTEU or
 Union), a Consolidated Complaint and Notice of Hearing was issued on
 October 29, 1982, by the Regional Director for Region I, Federal Labor
 Relations Authority, Boston, Massachusetts.  /4/ The Complaint alleges
 that the U.S. Customs Service, Region I, Boston, Massachusetts,
 (hereinafter called the Customs Service or Respondent), violated
 Sections 7116(a)(1), (2) and (5) of the Federal Service Labor-Management
 Relations Statute, (hereinafter called the Statute), by virtue of its
 actions (1) in removing the stools used by employees at the Montreal
 Pre-Clearance Station in retaliation for the filing of a grievance, and
 (2) failing to give the Union advanced notice of its decision to remove
 the stools and an opportunity to bargain over both the substance of the
 change and the impact and implementation of the change.  At the hearing,
 over the objection of Counsel for the Respondent, the General Counsel
 was granted permission by the undersigned Administrative Law Judge to
 amend the complaint to further allege that the Respondent committed an
 independent 7116(a)(1) violation by virtue of the action of one of its
 supervisors in telling unit employees that the stools were removed
 because of problems caused by the filing of a grievance.  /5/
 
    A hearing was held in the captioned matter on January 19, 1983, in
 Boston, Massachusetts.  All parties were afforded the full opportunity
 to be heard, to examine and cross-examine witnesses, and to introduce
 evidence bearing on the issues involved herein.  The General Counsel and
 the Respondent submitted post-hearing briefs on March 21, 1983, which
 have been duly considered.
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, and the stipulations of the parties, I
 make the following findings of fact, conclusions and recommendations.
 
                             Findings of Fact
 
    The Union is the exclusive bargaining representative of Respondent's
 non-professional employees assigned to Respondent's Region I which
 includes among others, the custom inspectors working at the Boston,
 Massachusetts and Montreal, Canada, airports.
 
    Mr. Edward Pacewicz, an inspector assigned to Region I's Boston,
 Massachusetts office, on an unspecified date received a job related
 injury which forced him out on sick leave for an unspecified period of
 time.  Upon his return to work Mr. Pacewicz was assigned a number of
 jobs which did not involve standing on his feet for long periods of
 time.  Subsequently, Mr. Pacewicz was assigned to work on the passenger
 belts at Logan Airport in Boston, where he inspected the hand baggage,
 etc. of incoming passengers from foreign countries.  After a period of
 time Mr. Pacewicz presented a doctor's certificate which indicated that
 he should not be on his feet for a long period of time and requested the
 use of a stool while he was performing his inspectional duties at Logan
 Airport.  Respondent agreed to allow him to use a stool for a two week
 trial period with the understanding that the practice of using stools
 while performing the duties of a customs inspector would be reassessed
 at the end of such period.
 
    At the end of the two week trial period, according to the credited
 testimony of Mr. John Linde, District Director of Customs for the Boston
 District, it was determined that the use of stools while performing the
 job of a custom inspector was not a wise practice since it might hamper
 the reactions of the inspectors to emergency situations, such as
 discovering weapons or narcotics.  According, to Mr. Linde there have
 been occasions when passengers have attempted to swallow small amounts
 of narcotics which inspectors have discovered in their possession.
 Additionally, passengers have attempted to push small packages or
 baggage along the outside of the baggage belts with their feet.  If an
 inspector was sitting down he would not be able to observe or see such a
 maneuver.
 
    Upon the basis of the above conclusions, the Respondent denied Mr.
 Pacewicz the further use of a stool while performing his duties as a
 customs inspector.  Mr. Pacewicz then filed a grievance which proceeded
 to the third step of the grievance procedure.  In support of its
 position on the grievance, the Union, in the third step of the grievance
 procedure, pointed out that stools were used by custom inspectors
 working in the clearance area of the Montreal airport.
 
    After the third-step grievance meeting had been held on April 13,
 1982, Ms. Lorraine Iovanni, an Employee Relations Specialist, who had
 been in attendance at the grievance meeting, telephoned Mr. Hubert
 Papelian, Branch Chief in Montreal, informed him of the grievance
 meeting and inquired whether it was a fact that stools were being used
 in Montreal.  Mr. Papelian informed Ms. Iovanni that stools were being
 used in Montreal.
 
    Thereafter, Ms. Iovanni contacted Mr. Edward Dunford, Regional
 Director of Inspection and Control, who was Mr. Papelian's supervisor,
 and advised him of the grievance concerning the refusal to allow Mr.
 Pacewicz to utilize a stool and the fact that she had verified that
 stools were being used in Montreal.  Mr. Dunford then contacted Mr.
 Papelian for purposes of further verifying the fact that stools were
 being used in Montreal.  He informed Mr. Papelian that the reason for
 his inquiry was that a grievance concerning the use of stools had been
 filed in Boston.
 
    Mr. Dunford then met with Mr. William Griffin, Region I Commissioner,
 and discussed the grievance and the fact that stools were being utilized
 in Montreal.  Mr. Dunford recommended that the stools be taken out of
 Montreal so that there would be a uniform policy throughout the Region.
 Mr. Griffin agreed with the recommendation of Mr. Dunford.
 
    On April 26, 1982, Mr. Dunford called Mr. Papelian and informed him
 that the Regional Commissioner had directed him to instruct Mr. Papelian
 to remove the stools from the Montreal Inspection area.
 
    On April 27, 1982, Mr. Papelian sent a letter to Mr. Craig Jehle,
 Secretary of NTEU Chapter 148 which read as follows:
 
          This letter is to notify you in accordance with Article 37 of
       the National Agreement that effective May 2, 1982, the use of
       stools in the Customs work areas during inspection or down time
       will not be permitted.  This action is taken in order to bring
       this location into conformity with the standard practice at all of
       the other airports within Region I.  /6/
 
    Subsequently, in response to a letter from the Union, Respondent by
 letter dated May 4, 1982, agreed to delay the removal of the stools
 until May 18, 1982.  The letter went on to remind the Union that "if the
 Union wishes to negotiate the implementation impact on proposed changes,
 the Union must submit written proposals to Management."
 
    On May 12, 1982, Mr. Jehle, in his capacity as Secretary-Treasurer of
 the Union wrote a letter to Mr. Papelian which read as follows:
 
          This letter is to notify you that in accordance with Article 37
       of the National Agreement that N.T.E.U. wishes to submit a
       proposal concerning the change of status quo and stools in the
       Customs work area.  N.T.E.U. proposes that stools remain for use
       at Montreal International Airport.
 
    On May 12, 1982 the parties met for purposes of negotiation.  The
 Union's proposal was a reiteration of its May 12th letter from Mr. Jehle
 to Mr. Papelian.  The Respondent refused to accept the Union's proposal
 and maintained that the stools would be removed.  At the close of the
 hearing both parties acknowledged that they were at impasse.
 
    On May 13, 1982, Mr. Jehle wrote a letter to Mr. Papelian which read
 as follows:
 
          In reference to your proposal that stools be removed from the
       Customs work areas on May 18, 1982, please be advised that an
       impasse has been reached and the matter referred to the Federal
       Mediation and Conciliation Services by N.T.E.U.  N.T.E.U. expects
       that the proposal will not be implemented until the satisfactory
       completion of mediation.  In the absence of mutual agreement,
       implementation before an impasse order or decision has been
       received will constitute grounds for an unfair labor practice
       charge.
 
    On May 17, 1982, the Union requested the assistance of the Federal
 Mediation and Conciliation Service.  Management refused to get involved
 with the Federal Mediation and Conciliation Service and on May 18, Mr.
 Papelian wrote Mr. Jehle a letter which read as follows:
 
          This is to notify you that it is my view that your proposal
       presented at our meeting of May 12, 1982, asking that the stools
       remain in the Customs work area is non-negotiable.  Accordingly,
       the stools are to be removed effective this date.
 
    According to the stipulation of the parties, the stools were removed
 from the Customs area in the Montreal airport on May 18, 1982.
 
    Mr. Jehle testified that on two occasions, the first being during the
 period April 27-May 12, 1982, and the second being during the meeting of
 May 12, 1982, Mr. Papelian attributed the removal of the stools to the
 Union's action in filing the grievance in Boston.  Thus, according to
 Mr. Jehle, during the period between April 27-May 12, 1982, at a time
 when he and Mr. Papelian were discussing the stools, "Mr. Papelian
 prefaced his remarks by stating and his more or less words were, you
 have done this to yourselves, the stools are going to be removed because
 of Union activity elsewhere." Further, according to Mr. Jehle, Mr.
 Papelian "then went on to say that he had received the word from his
 boss to remove the stools, and that even though he didn't want them to
 go, and if it were up to him they wouldn't go, he was going to remove
 the stools."
 
    On May 12, 1982, during the negotiations and in answer to an argument
 put forth by Mr. Jehle, according to the testimony of Mr. Jehle, Mr.
 Papelian stated "His boss had told him that the stools were going to go
 because of Union activity elsewhere".  In response to a clarifying
 question from the undersigned administrative law judge concerning Mr.
 Papelian's alleged reference to Union activity, Mr. Jehle stated, that
 Mr. Papelian stated "not directly":  "His words were, because of the
 grievance in Boston the stools were going to go, yes".
 
    According to Mr. Charles Dolan, a customs inspector who was in
 attendance at the May 12, 1982, meeting, either Mr. Papelian or Mr.
 Machniak, a supervisory inspector, "said that this was a result of what
 happened in Boston".  Mr. Dolan further testified that "the comment that
 I remember being made was, you people brought this on yourselves." Mr.
 Dolan acknowledged that he was aware that a grievance had been filed in
 Boston and that the subject of stools being used in Montreal was raised.
  On cross examination Mr. Dolan acknowledged that the recollection
 contained in his pre-trial statement was a more accurate account of what
 occurred at the May 12, 1982 meeting.  In his pre-trial statement Mr.
 Dolan stated "I recall Mr. Papelian mentioning at some point that this,
 elimination of the stools, was all your fault, that this was due to one
 of your buddies in Boston making noise and screwing all of you people".
 
    Mr. Papelian denies ever attributing the removal of the stools in
 Montreal to the grievance filed in Boston.  However, he acknowledges
 telling or passing on information to the Union "that a grievance had
 been raised in Boston by an employee that wished to use the stools, and
 he stated that fact that stools were utilized in Montreal".
 
    With respect to the stools, the record evidence indicates that they
 were owned by the Respondent and used by the Montreal Customs employees
 since 1978.  Additionally, according to Mr. Papelian's testimony the
 stools were used by a majority of the customs inspectors only during
 their "down time", when inspections were not being conducted.
 
                        Discussion and Conclusions
 
    The General Counsel takes the position that the Respondent (1)
 violated Section 7116(a)(1), (2) and (8) of the Statute by removing the
 stools in Montreal in retaliation for the action of Mr. Pacewicz in
 filing a grievance, (2) violated Section 7116(a)(1) by informing two
 employees that the stools were removed because a grievance was filed in
 Boston, and (3) violated Sections 7116(a)(1) and (5) by refusing to
 bargain over the substance of the decision to remove the stools.
 
    Respondent, on the other hand, urges dismissal of the complaint in
 its entirety.  Thus, the Respondent contends (1) that removal of the
 stools was based solely on a decision to have uniformity within its
 regions, (2) that no coercive statements were made by Mr. Papelian and
 (3) that the substance of the decision to remove the stools was a
 non-bargainable matter since it related to the technology of doing the
 work, and therefore its refusal to bargain thereon was not violative of
 the Statute.  Additionally, Respondent takes the position that even
 assuming that the substance of the decision to remove the stools was a
 bargainable matter, the Union waived its right to bargaining thereon
 when it limited its original bargaining request on the removal of the
 stools to impact and implementation of the change in conditions of
 employment.
 
    With respect to the reasons for the removal of the stools from the
 Montreal Airport, I find based upon the credited testimony of Mr.
 Dunford, whose testimony is corroborated in pertinent part by Ms.
 Iovanni, that the removal of the stools from Montreal was pursuant to
 information disclosed in the third step of Mr. Pacewicz grievance and
 based solely on Respondent's desire to have uniform working conditions
 throughout Region I of the Customs Service.  /7/ Accordingly, I shall
 recommend that the Section 7116(a)(1) and (2) allegation of the
 complaint be dismissed in its entirety.
 
    With respect to the alleged Section 7116(a)(1) violation predicated
 upon Mr. Papelian's statements to Mr. Jehle and Mr. Dolan, I find, based
 upon the credited testimony of Mr. Jehle and Mr. Dolan that Mr. Papelian
 couched his statements to them with regard to the removal of the stools
 from the Montreal airport in such terms as to give them the impression
 that the removal of the stools was attributable to the action of Mr.
 Pacewicz in exercising his Statutory right to file a grievance.  In such
 circumstances, I find that the Respondent violated Section 7116(a)(1) of
 the Statute since such action has a tendency to coerce and restrain
 employees in the exercise of their rights under the Statute.
 
    Turning now to the remaining allegation of the complaint, i.e.
 Respondent's refusal to bargain over the substance of the decision to
 remove the stools from the Montreal airport, I find, in agreement with
 the General Counsel, that the NTEU did not waive its rights to bargain
 with respect to the substance of the decision to remove the stools by
 virtue of its letter of May 12, 1982, wherein it cited Article 37 of the
 collective bargaining agreement which deals with impact bargaining as
 the authority for its request to bargain.  Thus, it is noted (1) that
 the NTEU was responding to Respondent's notice of the change dated April
 27, 1982, wherein the Respondent cited Article 37 as the authority for
 its notice, and (2) that both the NTEU's May 12th response and
 subsequent demands made during the ensuing negotiations and/or
 discussions encompassed requests for substance bargaining, namely
 retention of the status quo.  In such circumstances it can hardly be
 said that the NTEU clearly and unmistakably waived its rights to bargain
 over the substance of Respondent's decision to remove the stools.  In
 reaching the above conclusion I have considered the Authority's decision
 in Department of the Treasury, U.S. Customs Service, Region I, Boston,
 Massachusetts, and St. Albans, Vermont District Office, 10 FLRA No. 100,
 and concluded, contrary to the contention of Respondent, that the facts
 therein are clearly distinguishable from those in the instant case.
 
    Having determined that the Union did not waive its rights to
 substance bargaining, it must now be decided whether the use of stools
 falls within the meaning of "technology, methods, and means of
 performing work" as set forth in Section 7106(b)(1) of the Statute.  If
 so, it is a management right, which is only bargainable at the option of
 the Respondent.
 
    In the above connection, the record evidence indicates that the
 stools were used by a majority of the employees during their "down
 time", i.e. when no passengers were being processed.  To the extent that
 the stools were being used at a time when no work was being performed it
 can hardly be argued that the use of the stools was part of "the
 technology, methods, and means of performing work".  Accordingly, I find
 that the use of stools while on "down time" was a condition of
 employment which Respondent could not change without first giving the
 NTEU notice and an opportunity to bargain over the substance of its
 decision to remove same.  By failing to give the Union an opportunity to
 bargain over the substance of its decision to remove the stools used by
 the customs inspectors during their "down time" Respondent violated
 Sections 7116(a)(1) and (5) of the Statute.
 
    However, to the extent the stools were utilized by the customs
 inspectors while performing their inspectional duties, I find that the
 use of stools falls within the "technology, methods, and means of
 performing work", and that Respondent was under no obligation to bargain
 with the Union with respect to the substance of its decision to remove
 the stools.  In reaching this conclusion I rely on the uncontested
 testimony of Mr. John Linde, District Director of Customs for the Boston
 district concerning the necessity for customs inspectors to be standing
 so that they can immediately react and/or respond to emergency
 situations such as the discovery of weapons or narcotics and prevent the
 use of such weapons or the swallowing of narcotics.  Additionally,
 according to Mr. Linde, a customs inspector utilizing a stool would not
 be able to see a passenger's feet and prevent the passenger from kicking
 a parcel along the floor past the inspection belt or counter.
 
    Having concluded that the Respondent (1) violated Section 7116(a)(1)
 of the Statute by virtue of the actions of Mr. Papelian in making
 statements which gave the impression that the stools were removed from
 the Montreal airport because of the filing of the Boston grievance, and
 (2) violated Sections 7116(a)(1) and (5) of the Statute by virtue of its
 actions in refusing to bargain over the substance of its decision to
 remove the stools used by customs inspectors during their down time, it
 is hereby recommended that the Authority issue the following order
 designed to effectuate the purposes and policies of the Statute.
 
    It is further recommended that all other allegations of the Complaint
 be dismissed in their entirety.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Statute, it is
 hereby ordered that the U.S. Customs Service, Region I, Boston,
 Massachusetts, shall:
 
    1.  Cease and desist from:
 
          (a) Making statements to unit employees which carry the
       impression that changes in conditions of employment were
       attributable to, or in retaliation for, the action of a fellow
       employee in utilizing his statutory right to file a grievance.
 
          (b) Refusing to bargain with the National Treasury Employees
       Union, the exclusive representative of its employees, with respect
       to the substance of its decision to remove the stools used by
       customs inspectors during periods of time when they were not
       performing inspectional duties.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
          (a) Replace the stools formerly used by the customs inspectors
       during their non-inspectional duty time at the Montreal, Canada,
       airport and thereafter, upon request by the National Treasury
       Employees Union, bargain with the National Treasury Employees
       Union concerning the substance of any decision to remove the
       stools.
 
          (b) Post at its facilities in Montreal, Canada 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 Region I Commissioner for Customs 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 Commissioner shall take reasonable steps to insure
       that such 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:  May 17, 1983
 
    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
 STATUTE
 
                   We Hereby Notify Our Employees That:
 
    WE WILL NOT remove the stools used by customs inspectors during the
 time they are not performing inspectional duties without giving the
 National Treasury Employees Union, the exclusive representative of our
 employees, an opportunity to bargain over the substance of any decision
 to remove such stools from the inspectional areas at the Montreal,
 Canada, airport.
 
    WE WILL NOT make statements to unit employees which carry the
 impression that changes in conditions of employment were attributable
 to, or in retaliation for, the action of an employee in utilizing his
 statutory right to file a grievance.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of any right under the Federal
 Service Labor-Management Relations Statute.
 
    WE WILL replace the stools formerly used by customs inspectors during
 their non-inspectional duty time at the Montreal, Canada, airport and
 thereafter, upon request by the National Treasury Employees Union,
 bargain with such Union concerning the substance of any decision to
 remove the stools.
                                       (Agency or Activity)
                                       By:  (Signature)
 
    Dated:  . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region One,
 whose address is:  441 Stuart Street, Ninth Floor, Boston,
 Massachusetts, and whose telephone number is:  (617) 223-0920.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Authority specifically adopts the Judge's ruling with respect
 to granting the General Counsel's motion to amend the complaint at the
 hearing.  Thus, as found by the Judge, the amendment was based upon the
 same factual circumstances underlying the complaint;  the Respondent was
 apprised prior to the hearing that the General Counsel possessed
 information supporting the additional allegation;  and, contrary to the
 Respondent's claim that it was prejudiced by an inability to secure
 rebuttal witnesses, at no time did the Respondent seek a postponement to
 secure such witnesses.
 
 
    /2/ Section 7106(b)(1) provides in pertinent part as fo