16:0198(31)CA - Customs Service and NTEU -- 1984 FLRAdec CA



[ v16 p198 ]
16:0198(31)CA
The decision of the Authority follows:


 16 FLRA No. 31
 
 U.S. CUSTOMS SERVICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-439
 
                            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.  Exceptions to the
 Judge's Decision were filed by the General Counsel and the Charging
 Party.  /1/ The Respondent filed an opposition to the exceptions of the
 General Counsel and the Charging Party, and filed cross-exceptions to
 the Judge's Decision.  /2/
 
    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 recommendation that the complaint be
 dismissed, for the reasons set forth below.
 
    The complaint alleges that the Respondent's issuance of a Manual
 Supplement concerning procedures for the management of overtime
 assignments performed by Customs Inspectors violated section 7116(a)(1),
 (5) and (6) of the Statute.  /3/ The record shows that the parties
 reached impasse on June 7, 1979, during impact and implementation
 negotiations concerning the Manual Supplement.  The Respondent notified
 the Union that it would implement its last proposal as soon as possible,
 subject only to whatever delay might be caused by certain ministerial
 actions, such as having the Manual Supplement retyped in final form.
 The Union announced that it intended to invoke the services of the
 Federal Service Impasses Panel (the Panel) concerning the impasse in
 negotiations, but gave no specific date as to when it would file such
 request.  A letter dated June 11 was sent to the Respondent advising
 that the Union intended to file with the Panel for assistance as soon as
 possible.  The Respondent, however, did not receive that letter until
 sometime after June 12.  On the morning of June 12, the Respondent gave
 the Union notice over the telephone that the Commissioner was expected
 to sign the Manual Supplement by noon and that the Manual Supplement
 would be issued that day.  The Authority notes particularly that, during
 this conversation, the Union's representative neither made any reference
 to the Union's letter dated June 11 indicating an intent to promptly
 file with the Panel, nor otherwise stated that the Union's submission to
 the Panel was nearing completion and that filing was imminent.  Rather,
 the Union's representative merely stated that, "I think it's improper,
 if not illegal for you to implement it while we are going to the Panel."
 The Respondent in fact issued the Manual Supplement on June 12.  The
 Union delivered its request for assistance to the Panel in the afternoon
 of the following day.
 
    The Authority finds that the Union had a reasonable opportunity to
 invoke the services of the Panel after the parties reached impasse in
 their negotiations on June 7, and after receiving the Respondent's
 notice of its intent to implement its last proposal as soon as possible,
 and that, while the Respondent made clear to the Union on June 12 that
 the Manual Supplement would be issued that day, and did so issue it, the
 Union failed to advise the Respondent that its filing with the Panel was
 imminent.  Moreover, while it could have done so immediately, the Union
 nevertheless delayed filing its request with the Panel until the
 afternoon of the following day.  The Authority thus finds that the
 Respondent in these circumstances did not act unlawfully in implementing
 the Manual Supplement six days after the parties had reached impasse.
 Accordingly, we shall dismiss the section 7116(a)(1) and (5) allegations
 of the complaint.  /4/ Further, as the Panel declined to exercise
 jurisdiction over the matter in question, the Authority finds that the
 allegations in the complaint do not form the basis for finding a
 violation of section 7116(a)(6) of the Statute, and we shall therefore
 also dismiss the allegations of the complaint in this regard.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-439 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., October 3, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    U.S. CUSTOMS SERVICE
                                Respondent
 
    and
 
    NATIONAL TREASURY EMPLOYEES UNION
                              Charging Party
 
                                       Case No.: 3-CA-439
 
    Gary B. Landsman, Esquire
    Judith A. Newton, Esquire
    For the Respondent
 
    Sharyn Danch, Esquire
    For the Charging Party
 
    Susan Shinkman, Esquire
    For the General Counsel
 
    Before:  WILLIAM B. DEVANEY
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. Sec.
 7101, et seq., /5/ and the Final Rules and Regulations issued
 thereunder, 5 C.F.R. Sec. 2423.1, et. Seq., was initiated by a charge
 filed on August 23, 1979 (G.C. Exh. 1(a)), which alleged violation of
 Sections 16(a)(1), (5), (6) and (8) of the Statute;  the Complaint,
 issued August 27, 1980, alleged violations of Section 16(a)(1), (5) and
 (6) of the Statute.  Pursuant to the Notice of Hearing, a hearing was
 duly held before the undersigned on November 5, 1980, in Washington,
 D.C.
 
    All parties were represented by counsel, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence bearing on the issues involved, and were afforded the
 opportunity to present oral argument, which right each party waived.  At
 the close of the hearing, December 5, 1980, was fixed as the date for
 mailing post-hearing briefs, which time was subsequently extended, upon
 timely motion of Respondent joined in by the other party, for good cause
 shown to January 9, 1981.  Each party timely mailed an excellent brief,
 received on or before January 13, 1981, which have been carefully
 considered.  On May 21, 1981, Counsel for Charging Party filed a
 document entitled "Memorandum of Law" to which Counsel for General
 Counsel filed a Response, dated May 29, 1981, and received by this
 office on June 1, 1981.  As no provision was made for the submission of
 any further post-hearing memoranda, Charging Party's "Memorandum of Law"
 of May 21, 1981, has not been considered.  Upon the basis of the entire
 record, including my observation of the witnesses and their demeanor, I
 make the following findings and conclusions.
 
                                 Findings
 
    1.  The National Treasury Employees Union (hereinafter "NTEU") since
 1978 has been the recognized exclusive representative of two units of
 Customs employees, one consisting of all professional employees assigned
 to the Office of Regulations and Rulings, the Headquarters Office, and
 to Region II and IX of the Customs Service;  and the other consisting,
 inter alia, of all nonprofessional employees assigned to the
 Headquarters Office and to Regions I through IX of the Customs Service.
 Included are some 4,500 Customs Inspectors.
 
    2.  This case concerns overtime of the Customs Inspectors.  There are
 five basic types of Customs overtime, "generally referred to as
 'inspectional overtime', because their major purpose is to provide
 overtime compensation for Customs inspectors" (Res. Exh. 10) as follows:
  1911 Act (19 U.S.C. Sec. 267);  1944 Act (19 U.S.C. Sec.  1451);
 Airport and Airway Development Act Amendments of 1976 (P.L. 94-353);
 F.E.P.A. Overtime (5 U.S.C. Sections 5542, 5546);  and Administrative
 Uncontrollable Overtime (5 U.S.C. Sec. 5545(c)(2)).  However, the 1911
 Act, under which the Customs Service is reimbursed by the parties in
 interest for overtime inspectional services performed on Sundays and
 holidays as well as night duty between 5 p.m. and 8 a.m. if not part of
 regular duty hours, is the principal concern herein.
 
    3.  On February 12, 1979, Respondent delivered to Mr. John Bufe,
 Associate General Counsel, NTEU, its proposed Manual Supplement entitled
 "Management of Inspectional Overtime", which it stated would be
 implemented March 13, 1979 (Res. Exh. 1).
 
    4.  The proposed Manual Supplement was not, of course, the first
 document to address the subject of inspectional overtime.  The first
 such document, referred to by Respondent as "INS-2", was issued in the
 1950's and was the basic procedural policy guidance for management of
 inspectional overtime, although entitled "Assignment of Personnel to
 Inspectional Activities", which as amended, most recently in 1978, was
 the policy and procedural guide regarding the assignment of personnel to
 inspectional activities.  (Res. Exh. 1;  Tr. 129-130).
 
    5.  The proposed Manual Supplement provided, inter alia, for the
 establishment of tours of duty, not on overtime, at seaports and at
 airports (Res. Exh. 2, Par. 5, 6 and 7).  Although substantially more
 overtime accrues under the 1911 Act, and, accordingly, there was
 substantially greater impact on 1911 overtime, the proposals also,
 specifically, were directed at recurring assigned FEPA overtime.  While
 the proposed Manual Supplement provided for tours of duty, not on
 overtime, it did not establish any such tours of duty or shifts.
 
    6.  Mr. Bufe recognized the far-reaching effect of the proposed
 changes on overtime of Inspectors, which under optimum circumstances
 Respondent had estimated might involve as much as $10,000,000.00 per
 year (Res. Exh. 10, p. 9) and promptly met with NTEU National President,
 Mr. Vincent L. Connery, and with NTEU General Counsel, Mr. Robert M.
 Tobias, to discuss the proposal.
 
    7.  During February and March, 1979, Messrs. Connery and Bufe met
 with Mr. Robert E. Chasen, Commissioner of Customs, and exchanged
 correspondence concerning Respondent's proposal.  Mr. Chasen agreed to
 defer the date of implementation (March 13, 1979) pending receipt of
 NTEU's comments which were to be submitted by March 13, and Mr. Connery
 did respond by letter dated March 13, 1979 (Res. Exh. 9).
 
    8.  On February 21, 1979, Mr. Bufe delivered to Mr. Geoffrey Spinks,
 Respondent's Director of Labor Relations, a written request to bargain
 over the proposed Manual Supplement (Res. Exh. 4).  /6/
 
    9.  On April 16, 1979, NTEU's proposals were submitted (Res. Exh.
 15);  additional proposals were submitted on May 16, 1979 (Res. Exhs. 16
 and 17);  Respondent submitted counter-proposals on May 25, 1979 (Res.
 Exh. 18) which, in party, adopted NTEU proposals;  and on May 29,
 Respondent adopted, as modified, NTEU's proposal to establish an
 overtime abuse reporting system (Res. Exh. 19).
 
    10.  Negotiations began on May 16 and continued on seven subsequent
 dates, concluding on June 7, 1979.  At the request of NTEU, mediators
 from the Federal Mediation and Conciliation Service assisted the parties
 during the final three negotiating sessions held on May 30, June 6 and
 June 7, 1979.  On June 7, the mediators informed the parties that they
 believed that further bargaining would be fruitless and that the dispute
 would be certified to the Federal Service Impasses Panel (FSIP) as
 having reached impasse if the parties so desired (Tr. 167).  The
 Complaint alleged that "On June 7, 1979, the Union and Respondent
 reached impasse in negotiations over the proposed manual supplement"
 (G.C. Exh. 1(c)), the Answer admitted that impasse had been reached
 (G.C. Exh. 1(d)) and, at the hearing, General Counsel and NTEU conceded
 that impasse had been reached on June 7, 1979.  /7/
 
    11.  There is no question whatever that NTEU had stated its intention
 to take the matter to the FSIP.  Mr. Bufe testified, in part, that,
 
          " . . . I had been telling him (Mr. Spinks) all along, that I
       was going to invoke their (FSIP) services." (Tr. 108).
 
 Mr. Spinks fully agreed, stating, in part, as follows:
 
          "Q.  Mr. Spinks, do you recall any Union representative telling
       you at that meeting on June 7 that the Union would be going to the
       Federal Services Impasse Panel?
 
          "A.  I don't recall it specifically at that meeting, but almost
       every meeting we had Mr. Bufe mentioned at one time or another
       that the dispute would have to go to the Panel, that they would go
       to the FLRA, that they would go to the Panel, that they would go
       to the FLRA, that they would go to the courts, that they would go
       to the UN, they would go any place they could to see that the
       supplement was not issued." (Tr. 168).  /8/
 
    12.  It is equally clear that Respondent informed NTEU at the close
 of the June 7 meeting that it would take steps to issue the Manual
 Supplement as soon as it was redrafted to incorporate Respondent's last
 offer.  Thus, Mr. Spinks testified, in part, as follows:
 
          "A.  When we were drawing to a close and we knew we were not
       going to meet, I informed Mr. Bufe that we would take steps to
       issue the manual supplement as expeditiously as we could.
 
          "Q.  What did you say to him about what was going to be in
       order to issue the manual supplement?
 
          "A.  I told him I couldn't give him a date or time because we
       had to go back, redraft the issuance itself to incorporate into
       the issuance our offers that were made, your last offers that were
       made in the bargaining session, and that would involve a complete
       retyping, redrafting.  Once we got it through the bureaucratic
       approval mill, that Commissioner would sign it and issue it.
 
          "Q.  Did Mr. Bufe respond to your saying that the manual
       supplement would be implemented?
 
          "A.  Well, his remark that stands out the most was he told me,
       Well you do what you have to do and we will do what we have to
       do." (Tr. 167-168).
 
 Mr. Bufe fully agreed, stating, in part, as follows:
 
          "Q.  How did that meeting on June 7, 1979 end?
 
          "A.  It ended with the parties, when I say the parties I mean
       myself on behalf of the Union, Mr. Spinks on behalf of Customs,
       and also the mediators, finally coming to the recognition in the
       afternoon that these were negotiations that were not going to
       result in agreement, at least at the mediation stage;  that the
       differences were deep-rooted, and that as they understood it there
       was very little likelihood, no likelihood in mediation that
       agreement would be reached.  Face to face Mr. Spinks said to me he
       was going to do what he had to do and that was, as far as he was
       concerned he had negotiated with us and he was going to implement
       his issuance.  My response to him was well, that is what he has to
       do and there are some things I have to do.  I was speaking from
       these notes and I said number one, we are definitely going to be
       taking certain proposals to the Impasses Panel;  number 2, the
       proposals he had declared non-negotiable we were going to appeal
       on a negotiability appeal;  number 3, we intended to file unfair
       labor practices where appropriate;  and number 4, should he make
       good on his promise to implement while we were going to the
       Impasses Panel, I was going to regard that as illegal and that an
       unfair labor practice would be filed to contest that action as
       well." (Tr. 77-78).
 
    13.  Mr. Bufe testified that he completed his draft of the appeal to
 the FSIP on Sunday, June 10, 1979, and had it typed.  (Tr. 107).
 
    14.  On the morning of June 12, 1979, Mr. Spinks telephoned Mr. Bufe
 and informed him as follows:
 
          "On the morning of the 12th, I called Mr. Bufe and told him
       that the revisions had been completed and that the proper people
       had given their approval, and that we had placed it before the
       Commissioner to sign it and that I expected him to sign it by
       noon." (Tr. 170).
 
          "JUDGE DEVANEY:  Mr. Spinks, let me ask you this:  you were
       asked, and you told us you called Mr. Bufe on the 12th of June,
       and you told us what you said to him.  Tell me what he said to
       you.
 
          "THE WITNESS:  He said, I think words to the effect, well, this
       means we are really going to go at it over this one.
 
          "JUDGE DEVANEY:  Is that all he said?
 
          "THE WITNESS:  I believe so.  We had pretty well exhausted our
       comments with each other on this matter over a period of time.  He
       may have used the words, 'This means war.' He uses that
       occasionally." (Tr. 172).
 
 Mr. Bufe confirmed the fact that he had a conversation with Mr.  Spinks
 on the morning of June 12, 1979, and testified, in part, as follows:
 
          "A.  Mr. Spinks and I had a conversation that I can recall, a
       telephone conversation on, I believe it was the 12th, the day that
       bears the date of the issuance.  I don't recall whether I called
       him or he called me.  I recall a conversation.  I recall him
       saying to me 'Well, we are implementing this thing today.' I
       recall me saying in response 'I am not surprised but as you know I
       am in disagreement with it and we are going to the Panel and I
       think it's improper, if not illegal for you to implement it while
       we are going to the Panel'." (Tr. 81).
 
    15.  Mr. Bufe further testified that on May 8, 1979, Chapter
 Presidents had been informed, in part, as follows:
 
          "A.  The five to seven days was simply our estimate.  We had
       never been told by management when it would be implemented.  You
       must realize that these meetings occurred before bargaining even
       began.  We had just received the advance notice.  Our proposals
       had been submitted as I remember at the time of the meeting, but
       we had not began bargaining.  So there was no way for us to know
       when the manual supplement would be implemented.  Bargaining might
       take a month, it might take three months, and it would also depend
       on, we knew we were going to the Panel if things weren't resolved.
        Then it would depend on whether management was going to defer
       implementation until we got to the Panel.
 
          "The five to seven days' advance notice included in the memo, I
       would only say I was never told by management at any time to
       expect five to seven days' notice.  That is a figure that we used
       for general memo purposes and for planning purposes, and for no
       other reason.  In effect, we were saying to people we did not know
       when the manual supplement would be implemented;  that we could
       predict to the best of our knowledge, not based on anything
       management told us but rather based on experience as labor
       relations professionals, that we would hope and expect to get
       approximately a week's notice, but no more than that . . . ." (Tr.
       214-215).
 
    16.  Respondent issued the Manual Supplement on June 12, 1979.  (Res.
 Exh. 23;  Tr. 169).
 
    17.  On June 12, 1979, Mr. Bufe transmitted "an additional copy of
 the material I submitted to FMCS last week" to Commissioner John F.
 McDermott, Federal Mediation and Conciliation Service (G.C. Exh. 4) and
 stated that "NTEU expects to file its appeal with the Panel by June 15,
 1979" (G.C. Exh. 4).
 
    18.  At 3:15 p.m. on June 13, 1979, Mr. Bufe delivered to FSIP its
 request for assistance (G.C. Exh. 5).  Mr. Spinks testified that he was
 informed on June 14 or 15, that NTEU had contacted the FSIP (Tr. 169).
 
    19.  As noted above, while the Manual Supplement directed that
 "Commensurate with current levels of staffing and distribution of work
 load, tours of duty, not on overtime, will be established" (Res. Exh.
 23, Par. 3(b)(6), (7) and (8), the Manual Supplement neither established
 nor created any such tours of duty, or shifts;  but, to the contrary,
 the actual shift changes were negotiated locally (Tr. 177).  Indeed,
 Paragraph 4(d) of the Manual Supplement provided, for example, that:
 
          "(d) Where the implementation of this Manual Supplement results
       in the establishment of new shifts or other changes in matters
       affecting conditions of employment, NTEU shall be afforded the
       opportunity to negotiate over the implementation and/or impact of
       such changes.  Such negotiations will be conducted at the Regional
       level, or, upon mutual agreement, at the District or local level
       as appropriate." (Res. Exh. 23, Par. 4(d)).
 
 Mr. Fowler testified that where shifts were established NTEU was given
 the opportunity to bargain (Tr. 191-194).
 
    20.  It is conceded by all parties that Respondent's Manual
 Supplement as issued on June 12, 1979, did not exceed the scope of the
 proposals advanced by Respondent during negotiations and that it did
 faithfully reflect all matter agreed upon by the parties in
 negotiations.
 
                                Conclusions
 
    The sole issue in this case is whether NTEU had a reasonable
 opportunity, after impasse in impact and implementation negotiations and
 Respondent's notice of intent to implement, to invoke the processes of
 FSIP prior to Respondent's issuance (implementation) of its Manual
 Supplement.  NTEU did not invoke the processes of FSIP prior to
 Respondent's implementation of the Manual Supplement.  Impasse was
 reached on June 7, 1979, at which time Respondent informed NTEU that it
 would implement (issue) the Manual Supplement, and Respondent
 implemented (issued) the Manual Supplement on June 12, 1979.  If, under
 the particular circumstances of this case, NTEU had a reasonable
 opportunity to invoke the processes of FSIP prior to Respondent's
 implementation and failed or refused to do so, then, clearly,
 Respondent's implementation of its Manual Supplement on June 12, 1979,
 was lawful and proper and there would be no basis whatever for finding
 an unfair labor practice.  U.S. Air Force, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 5 FLRA No. 39 (1980).  On the
 other hand, if NTEU did not have a reasonable opportunity to invoke the
 processes of FSIP prior to Respondent's implementation of the Manual
 Supplement, then, equally clearly, Respondent's implementation of its
 Manual Supplement on June 12, 1979, was unlawful and improper.  U.S.
 Army Corps of Engineers, Philadelphia District, A/SLMR No. 673, 6 A/SLMR
 339 (1976).
 
    The concept of "impasse" presupposes:  a) that the parties have
 bargained in good faith;  and b) that after good faith negotiations the
 parties have exhausted the prospects of concluding an agreement.  Here,
 it is conceded that impasse was reached in negotiations on impact and
 implementation of Respondent's proposed Manual Supplement on June 7,
 1979.  Sec. 19 of the Statute, entitled "Negotiation impasses;  Federal
 Service Impasses Panel", provides, in relevant part, as follows:  /9/
 
          "b) If voluntary arrangements, including the services of the
       Federal Mediation and Conciliation Service, . . . fail to resolve
       a negotiation impasse--
 
          (1) either party may request the Federal Service Impasses Panel
       to consider the matter . . . ." (5 U.S.C. Sec. 7119(b)).
 
    As NTEU very correctly states in its Brief,
 
          "Neither the statute nor the FSIP regulations, 5 C.F.R. Part
       2471, provide a limitation for invoking the Panel's services.  The
       statutory language requires only that a party file a request if
       the Panel's assistance is desired.
 
          "The FSIP has not exercised its authority to establish a
       limitation period . . .  The Panel's regulations address only the
       means of filing a request, 5 C.F.R. 2471.1. . . . " (NTEU Brief,
       pp. 8-9).
 
    The decisions, under both the Executive Order and the Statute, have
 consistently held that, after impasse, changes of personnel policies and
 practices and matters affecting working conditions may unilaterally be
 implemented only if the agency "provides the other party with sufficient
 notice of its intent to implement the changes (which cannot exceed the
 scope of the proposals advanced by that party during prior negotiations)
 so that the other party is afforded a reasonable opportunity under the
 circumstances to invoke the processes of the Federal Service Impasses
 Panel." Internal Revenue Service, Ogden Service Center and Department of
 the Treasury, Internal Revenue Service,, Brookhaven Service Center, FLRC
 Nos. 77A-40 and 77A-92, 6 FLRC 310, 320 (1978);  U.S. Army Corps of
 Engineers, Philadelphia, District, supra;  United States Department of
 the Treasury, Internal Revenue Service, Cleveland, Ohio, A/SLMR No. 972,
 8 A/SLMR 98 (1978);  U.S. Air Force, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, supra.  Nor can there be any
 doubt, however it may be stated, that notice of intent to implement must
 be given after impasse to permit lawful unilateral implementation, i.e.,
 whether, as NTEU states, "The Union's opportunity to file its request
 with the Panel does not begin to run until the agency has given 'notice
 of its intent to implement' unilateral changes" (NTEU Brief, p. 10), or
 whether, as the Assistant Secretary stated, "Respondent violated Section
 19(a)(1) and (6) of the Order by unilaterally instituting the change . .
 . without providing the Complainant with reasonable notice of its
 intended action", U.S. Army Corps of Engineers, Philadelphia District,
 supra, 6 A/SLMR at 341.  In the U.S. Army Corps of Engineers case,
 supra, impasse had been reached on March 4, 1974, and neither party
 requested the services of the Panel.  The Assistant Secretary stated, in
 part, as follows:
 
          " . . . In the instant case, the evidence established that
       neither party had invoked the Panel's procedures at the time the
       Respondent implemented the changes in the working conditions . . .
       in May 1974.  Consequently, the Respondent's conduct herein would
       be considered privileged if the evidence established that the
       Complaint was afforded appropriate notice of when the intended
       change was to be put into effect so as to provide the latter with
       an opportunity to invoke the services of the Panel.  In the
       instant case, however, it is undisputed that the Complainant was
       not notified prior to the institution of the change . . . and was
       not given the opportunity to invoke the procedures of its Panel
       prior to the Respondent's instituting a change in existing terms
       or conditions of employment . . . " (6 A/SLMR at 341).
 
 Obviously, neither the fact that an impasse in negotiations has been
 reached nor the passage of time after impasse permits a lawful
 unilateral implementation of the change, on which impasse has been
 reached, in the absence of notice "of when the intended change was to be
 put into effect" in order to provide the Union, after notice of intended
 implementation of the change, "an opportunity to invoke the services of
 the Panel."
 
    In the instant case, there is no dispute whatever that on June 7,
 1979, after impasse, Respondent gave NTEU notice that it intended to
 implement its proposed Manual Supplement.  Thus, for example, Mr. Spinks
 stated that he informed Mr. Bufe, " . . . that we would take steps to
 issue the manual supplement as expeditiously as we could" and Mr. Bufe
 stated that Mr. Spinks, face to face, " . . . said to me he was going to
 do what he had to do and that was, as far as he was concerned he had
 negotiated with us and he was going to implement his issuance." It is
 true, that Mr. Spinks did not give Mr. Bufe a date or time certain for
 implementation for the reason that, " . . . we had to go back, redraft
 the issuance itself to incorporate into the issuance our offers that
 were made, your last offers that were made in the bargaining session,
 and that would involve a complete retyping, redrafting." Nevertheless,
 as Mr. Spinks made it clear that Respondent " . . . would take steps to
 issue the manual supplement as expeditiously as we could" and that " . .
 . Once we got it through the bureaucratic approval mill, that (sic)
 Commissioner would sign it and issue it", I conclude that Respondent's
 notice of June 7, 1979, did advise NTEU "of when the intended change was
 to be put into effect", i.e., as soon as we get it redrafted and signed
 by the Commissioner, to set in motion "The Union's opportunity to file
 its request with the Panel".  Not only do I find that Mr. Spinks' notice
 "of when the intended change was to be put into effect" was sufficiently
 definite, but Mr. Bufe made it clear that he fully understood the
 implications of Mr. Spinks' notice.  Thus, by way of example, after Mr.
 Spinks told him, " . . . he was going to implement his issuance", Mr.
 Bufe stated, "my response to him was well, that is what he had to do and
 there are some things I have to do . . . I said . . . we are definitely
 going to be taking certain proposals to the Impasses Panel. . . . "
 
    The ultimate question is whether NTEU had a reasonable opportunity,
 after Respondent's notice of June 7, 1979, to request the FSIP to
 consider the matter prior to Respondent's implementation (issuance) of
 the Manual Supplement on June 12, 1979.  For reasons set forth
 hereinafter, in view of the particular facts and circumstances of this
 case, I conclude that NTEU had a reasonable opportunity to invoke the
 services of the FSIP prior to Respondent's issuance (implementation) of
 its Manual Supplement and with full knowledge of Respondent's intent to
 issue (implement) the Manual Supplement on June 12, 1979, NTEU failed
 and refused to invoke the services of the FSIP prior to its issuance
 (implementation).  Accordingly, Respondent was privileged to implement
 (issue) its Manual Supplement, as it did, on June 12, 1979, and
 Respondent did not thereby violate Secs. 16(a)(1), (5) or (6) of the
 Statute.
 
    In the absence of a limitation fixed by Regulation between the time
 of notice of intent to implement and the time when a change lawfully may
 be implemented if the services or the FSIP are not requested, what
 constitutes a reasonable opportunity to invoke the services of the FSIP
 must be determined on a case by case basis in light of the circumstances
 of each case.  What is eminently reasonable in one case may be wholly
 unreasonable in another.  In U.S. Air Force, Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, supra, eight days was
 held to be a reasonable opportunity.  Under other circumstances, five
 days, which I find to have been a reasonable opportunity in this case,
 might very well be unreasonable.  Indeed, in all candor, I would not
 have found five days to have given NTEU a reasonable opportunity to
 invoke the services of the FSIP if there had been any evidence whatever
 that indicated that NTEU, readily, could not have requested the services
 of the FSIP prior to Respondent's issuance (implementation) of its
 Manual Supplement.  I have taken into consideration NTEU's prior
 experience in taking matters to the FSIP;  the fact that NTEU is located
 in the same building as the FSIP;  the fact that the same person, Mr.
 Bufe, was chief spokesman for NTEU in the negotiations and the person
 who handled the matter before the FSIP;  the fact that Mr. Bufe stated
 that he completed his draft of the appeal to the FSIP on June 10, 1979,
 and had it typed;  and that on the morning of June 12, 1979, Mr. Spinks
 called Mr. Bufe and told him that the revisions had been completed and
 that he expected the Commissioner to sign it by noon.
 
    The record shows, inter alia, that:
 
          a) Even before negotiations began, NTEU had advised its Chapter
       Presidents, on May 8, 1979, that it anticipated no more than " . .
       . five to seven days' advance notice" in order to request the
       services of the FSIP.
 
          b) On June 7, 1979, after the conceded impasse had been
       reached, Respondent gave NTEU notice that it intended to issue
       (implement) its proposed Manual Supplement "expeditiously";  that
       as quickly as it could be redrafted to reflect "our offers that
       were made" and "we got it through the bureaucratic approval mill"
       the Commissioner "would sign it and issue it."
 
          c) Mr. Bufe fully agreed that on June 7, 1979, Mr. Spinks, face
       to face, told him that "he was going to implement his issuance".
       There is no possible doubt that Mr. Bufe understood fully the
       implications of Mr. Spinks' statement as he responded, "that is
       what he had to do and these are some things I have to do" which
       included "taking certain proposals to the Impasses Panel".  I find
       nothing in the record that indicates that on June 7, 1979, Mr.
       Bufe asked Mr. Spinks to "defer implementation until we got to the
       Panel", a consideration Mr. Bufe had noted in the May 8, 1979,
       communication to Chapter Presidents;  but, even it if were implied
       from his statement of things he, Bufe, had to do, obviously, Mr.
       Spinks did not agree to do so and Mr. Bufe well understood that
       Mr. Spinks did not agree to defer implementation.
 
          d) With full awareness that Respondent intended to implement
       the Manual Supplement "expeditiously", Mr. Bufe "wrote the brief
       on the weekend and had it typed . . . I came in on Sunday and
       wrote the brief and had it typed." (Tr. 107).
 
          e) Although Mr. Bufe had written his brief (appeal) "on Sunday"
       and "had it typed", NTEU did not file its request for assistance
       with FSIP either on June 11 or 12, 1979.
 
          f) On the morning of June 12, 1979, Mr. Spinks called Mr. Bufe
       and told him that the revisions had been completed and that he
       expected the Commissioner to sign it by noon.  Mr. Bufe stated
       that Mr. Spinks told him, "Well, we are implementing this thing
       today" and that he had responded, "I am not surprised but as you
       know I am in disagreement with it and we are going to the Panel
       and I think it's improper, if not illegal for you to implement it
       while we are going to the Panel." Again, although Mr. Bufe
       repeated his prior intent to go to the Panel, Mr. Spinks,
       obviously, did not agree to defer implementation and Mr. Bufe
       fully understood that Respondent would not agree to defer
       implementation "while we are going to the Panel".
 
          g) Notwithstanding the further notice on the morning of June 12
       that Respondent expected to issue (implement) the Manual
       Supplement by noon, NTEU did not file its request for assistance
       with the FSIP.
 
          h) Respondent issued (implemented) its Manual Supplement on
       June 12, 1979, and, of course, no request for the assistance of
       the FSIP had been filed.
 
          i) At 3:15 p.m. on June 13, 1979, Mr. Bufe delivered NTEU's
       request for assistance to the FSIP.
 
          j) I have found that Mr. Bufe's letter, dated June 11, 1979
       (G.C. Exh. 3), addressed to Mr. Spinks, was not received by
       Respondent until June 13, 1979;  nevertheless, it is clear that
       both on June 7, 1979, and on June 12, 1979, as noted above, Mr.
       Bufe had told Mr. Spinks that NTEU was "taking certain proposals
       to the Impasses Panel" and/or "we are going to the Panel".
 
    Following impasse in negotiations on June 7, 1979, Respondent was
 privileged to implement its proposed Manual Supplement if NTEU did not
 invoke the services of the FSIP within a reasonable period of time after
 notice of its intent to implement.  Respondent gave NTEU notice of
 intent to implement its proposed Manual Supplement on June 7, 1979.  On
 June 12, 1979, Respondent, in the morning, advised NTEU that it expected
 to issue its proposed Manual Supplement at noon (June 12).  NTEU had
 written its request for assistance on June 10 and "had it typed";  but
 NTEU did not invoke the services of the FSIP prior to Respondent's
 implementation of the Manual Supplement notwithstanding that it had a
 reasonable opportunity to do so after Respondent's notice of intent to
 implement given on June 7, 1979, nor did it do so on June 12, 1979,
 after notification, in the morning, that Respondent intended to issue
 the Manual Supplement that day, even though its request had been
 prepared and NTEU was located in the same building as the FSIP.
 
    The parties had correlative rights:  Respondent had the right to
 implement (issue) its proposed Manual Supplement if NTEU did not invoke
 the services of the FSIP within a reasonable period after its notice of
 June 7, 1979, of intent to implement;  NTEU had the right to invoke the
 services of the FSIP within a reasonable period after Respondent's
 notice of June 7, 1979, of intent to implement.  NTEU, with full
 knowledge of Respondent's intent to implement;  with reasonable
 opportunity to invoke the services of the FSIP;  and with its request
 prepared, on June 10, 1979, chose not to invoke the services of the FSIP
 prior to Respondent's issuance (implementation) of its Manual
 Supplement, notwithstanding that Respondent on the morning of June 12
 had informed NTEU that it intended to issue (implement) the Manual
 Supplement by noon that day and NTEU could readily have filed its
 request, which already had been prepared, with the FSIP, which was in
 the same building, but, again, chose not to do so.  As NTEU had a
 reasonable opportunity to invoke the services of the FSIP after
 Respondent's notice of intent to implement, given on June 7, 1979, and
 failed or refused to do so, Respondent's implementation (issuance) of
 its Manual Supplement on June 12, 1979, was the lawful exercise of a
 privileged right and it did not violate Secs. 16(a)(1), (5) or (6) by
 its implementation (issuance) of the Manual Supplement.
 
    General Counsel would engraft a further limitation on the right to
 implement following notice of intent to implement, namely, that NTEU's
 statement of intent to invoke the services of the FSIP precluded
 implementation pending NTEU's invocation of the services of the FSIP.  I
 reject this assertion.  From the Statute and from the decisions
 construing the provisions of Sec. 19 of the Statute, and the wholly like
 provisions of Section 17 of the Executive Order, the only limitation on
 any agency's right to implement a proposed change in conditions of
 employment following impasse in negotiations and notice of intent to
 implement is the right of the union to a reasonable opportunity to
 invoke the services of the FSIP.  NTEU was entitled to a reasonable
 opportunity to invoke the services of the FSIP;  it has a reasonable
 opportunity to do so;  however, it chose not to invoke the services of
 the FSIP prior to Respondent's implementation.  Certainly, NTEU had the
 right not to invoke the services of the FSIP;  but the conscious
 exercise of this right did not, and does not, render unlawful
 Respondent's exercise of its right to implement the Manual Supplement,
 after notice of intent to implement, since NTEU had a reasonable
 opportunity to invoke the services of the FSIP and chose not to do.
 
    The importance NTEU attached to the Manual Supplement and the
 dispatch with which Mr. Bufe prepared his brief to the FSIP merely
 emphasize the deliberate and conscious election of NTEU not to invoke
 the services of the FSIP prior to Respondent's implementation.  I do not
 question in the slightest NTEU's absolute right to "trade" the certainty
 of the assistance of the FSIP, had it desired to invoke the processes of
 the FSIP, for the vicissitudes of litigation.  Whether NTEU hoped, or
 believed, that Respondent would delay implementation if it asserted it
 was going to the Panel;  whether NTEU believed its stated intent to go
 "to the Panel" would prevent implementation;  whether NTEU believed it
 could predetermine what it considered to be a reasonable opportunity
 within which to invoke the processes of the FSIP from which it declined
 to move;  or whether it was motivated by other considerations need not
 be determined since the record shows, and I have found, that:  a) NTEU
 had a reasonable opportunity to invoke the services of the FSIP prior to
 Respondent's implementation;  and b) that NTEU consciously elected not
 to do so.
 
    In view of my conclusions that Respondent lawfully implemented its
 Manual Supplement on June 12, 1979, it not only is unnecessary but would
 be inappropriate to comment on remedy since no unfair labor practice
 occurred.  I simply note that, as the record shows, the Manual
 Supplement implemented on June 12, 1979, did not establish any shifts or
 tours of duty;  that Paragraph 4(d) of the Manual Supplement provided,
 inter alia, that "the establishment of new shifts or other changes in
 matters affecting conditions of employment" were subject to notice to
 NTEU and "the opportunity to negotiate over the implementation and/or
 impact of such changes";  and that such changes in shifts or tours of
 duty were negotiated locally.
 
    Accordingly, having found that Respondent did not violate Secs.
 16(a)(1), (5) or (6) of the Statute, 5 U.S.C. 7116(a)(1), (5) or (6), by
 its implementation of its proposed Manual Supplement on June 12, 1979, I
 recommend that the Authority issue the following:
 
                                   ORDER
 
    The Complaint in Case No. 3-CA-439 be, and the same is hereby,
 dismissed.
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  October 16, 1981
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Among other matters, the Charging Party excepted to the Judge's
 refusal to consider its "Memorandum of Law." The Judge's action in this
 regard was correct, as the Memorandum was filed after the period set by
 the Judge (in accordance with section 2423.25 of the Authority's Rules
 and Regulations) for filing timely post-hearing briefs had passed.
 
 
    /2/ The General Counsel filed a motion to strike the Respondent's
 cross-exceptions.  However, the Authority granted an extension of time
 to the Respondent to file its opposition and cross-exceptions, and the
 Respondent's cross-exceptions were filed within the time allotted by the
 Authority.  Accordingly, the General Counsel's motion to strike is
 denied.
 
 
    /3/ Section 7116(a)(1), (5) and (6) provides:
 
    Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                  * * * *
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
          (6) to fail or refuse to cooperate in impasse procedures and
       impasse decisions as required by this chapter(.)
 
 
    /4/ See U.S. Air Force, Air Force Logistics Command, Wright-Patterson
 Air Force Base, Ohio, 5 FLRA 288 (1981) and Department of Health and
 Human Services, Social Security Administration, Baltimore, Maryland, 16
 FLRA No. 32 (1984), also issued this date.
 
 
    /5/ For convenience of reference, sections of the Statute hereinafter
 are, also, referred to without inclusion of the initial "71" of the
 Statute reference, e.g., 7116(a)(1) will be referred to, simply, as
 "16(a)(1)".
 
 
    /6/ I am well aware that NTEU's demand was to negotiate "substance,
 impact and implementation" (Res. Exh. 4);  that Respondent stated in its
 letter of March 5, 1979, that "the proposed Supplement was provided to
 you on February 12, in order to provide NTEU with an opportunity to seek
 negotiations over such substantive aspects . . . as may be negotiable
 and over the implementation and impact of those aspects which constitute
 reserved management rights." (Res. Exh. 7).
 
    Nevertheless, General Counsel made it very clear that the bargaining
 was solely impact and implementation bargaining (Tr. 19) as asserted by
 Respondent (Tr. 13).  In view of General Counsel's position and theory
 of the case, I shall assume, although I do not decide, that the
 bargaining was solely bargaining on impact and implementation and,
 conversely that the proposed Manual Supplement constituted a reserved
 management right pursuant to Sec. 6(a) of the Statute.
 
 
    /7/ Respondent, at the hearing, initially contended that because, it
 asserted, NTEU had not bargained in good faith, no impasse had been
 reached (Tr. 17).  In view of the allegations of the Complaint (Par.
 10), the Answer (Par. 10), and the agreement of all parties that impasse
 had been reached on June 7, 1979, the issue of good faith vis-a-vis the
 negotiations was not, and is not, before me and will not be decided.
 
 
    /8/ Mr. Bufe wrote a letter, dated June 11, 1979, addressed to Mr.
 Spinks, in which he stated, in part,
 
          "Please be advised that NTEU will be promptly filing its appeal
       of this impasse to the Federal Service Impasses Panel as soon as
       possible.  Be further advised that any implementation of the
       proposed manual supplement during the pendency of the Impasse
       Panel proceeding will be regarded as unlawful by NTEU, and
       appropriate action will be taken." (G.C. Exh. 3).
 
 Mr. Bufe stated that he gave the letter to a law clerk to deliver.  He
 testified, " . . . I did not, for example, I did not talk to her
 afterwards.  She never said to me that I delivered it.  I don't remember
 that.  It's possible that she didn't.  I will have to say that." (Tr.
 216).
 
    Mr. Spinks testified that he had not received Mr. Bufe's letter as of
 June 12, 1979 (Tr. 169);  that he received it, he thought, on June 13;
 that he believed it came in the mail and was postmarked June 12, 1979
 (Tr. 169).  Mr. Lawrence K. Fowler, a Labor Relations Specialist for
 Respondent, also testified that Mr. Bufe's letter was received sometime
 after June 12, probably June 13, perhaps the 14th (Tr. 194-196).
 
    Under the circumstances, I conclude that G.C. Exh. 3 was not received
 by Respondent until after June 12, 1979.
 
 
    /9/ Section 17 of the Executive Order 11491, as amended, was
 substantially the same and, in relevant part, provided:
 
          "Sec. 17.  Negotiation impasses.  When voluntary arrangements,
       including the services of the Feder