16:0506(73)CA - Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, DC and Central Region and NTEU and NTEU Chapter 88 -- 1984 FLRAdec CA



[ v16 p506 ]
16:0506(73)CA
The decision of the Authority follows:


 16 FLRA No. 73
 
 UNITED STATES DEPARTMENT OF TREASURY
 BUREAU OF ALCOHOL, TOBACCO AND
 FIREARMS, WASHINGTON, D.C. AND
 CENTRAL REGION
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION AND
 NATIONAL TREASURY EMPLOYEES UNION
 CHAPTER 88
 Charging Party
 
                                            Case Nos. 5-CA-535
                                                      5-CA-536
                                                      5-CA-537
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices and recommending that it cease and desist
 therefrom and take certain affirmative action.  The Judge also found
 that the Respondent had not engaged in certain other alleged unfair
 labor practices and recommended that those portions of the consolidated
 complaint be dismissed.  Thereafter, the Respondent and the General
 Counsel filed exceptions and supporting briefs to portions of the
 Judge's Decision.
 
    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 Recommended Order, except as modified
 herein.
 
    In agreement with the Judge's conclusion, the Authority finds that
 Respondent's failure to provide the union with adequate prior notice of
 its decision to change from direct to general supervision of the one-man
 distilled spirits plants (DSPS), and to detail Firearm Inspectors from
 the Cincinnati Area Office to the Firearms Section of the Regional
 Office, was violative of section 7116(a)(1) and (5) of the Statute.  In
 so finding, the Authority emphasizes that where an agency in exercising
 a management right under section 7106 of the Statute changes conditions
 of employment of unit employees, there exists a statutory duty to
 negotiate if such change results in more than a de minimis impact upon
 unit employees or such impact is reasonably foreseeable.  See U.S.
 Government Printing Office, 13 FLRA No. 39 (1983) and Department of
 Health and Human Services, Social Security Administration, Chicago
 Region, 15 FLRA No. 174 (1984).
 
    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 Department of Treasury, Bureau of
 Alcohol, Tobacco and Firearms, Washington, D.C. and its Central Region:
 
    1.  Cease and desist from:
 
    (a) Changing the method of supervision of distilled spirits plants
 and instituting details of Firearm Inspectors to the Firearms Section to
 perform the duties of Firearm Examiners without first notifying the
 National Treasury Employees Union and affording it the opportunity to
 negotiate concerning the impact and implementation of such changes.
 
    (b) Refusing to bargain, upon request, with the National Treasury
 Employees Union concerning the impact upon employees of the change of
 supervision to general supervision from direct supervision of distilled
 spirits plants in the Louisville Area and concerning the impact upon
 employees of the detailing of Firearm Inspectors in the Cincinnati Area
 to the Firearms Section to perform the duties of Firearm Examiners.
 
    (c) In any like or related manner, interfering with, restraining, or
 coercing its employees in the rights assured by the Federal Service
 Labor-Management Relations Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Notify the National Treasury Employees Union of any intention to
 change the method of supervision of distilled spirits plants or to
 institute details of Firearm Inspectors to a Firearms Section to perform
 the duties of Firearm Examiners and, upon request, negotiate with such
 representative concerning the impact and implementation of such actions.
 
    (b) Bargain, upon request, with the National Treasury Employees Union
 concerning the impact upon employees of the change of supervision to
 general supervision from direct supervision of distilled spirits plants
 in the Louisville Area and concerning the impact upon employees of the
 detailing of Firearm Inspectors in the Cincinnati Area to the Firearms
 Section to perform the duties of Firearm Examiners.
 
    (c) Post at its facilities 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 an appropriate official and they
 shall be posted for 60 consecutive days thereafter in conspicuous
 places, including all places where notices to employees are customarily
 posted.  The Agency shall take reasonable steps to insure that such
 Notices are not altered, defaced, or covered by any other material.
 
    (d) Notify the Regional Director of Region V, Federal Labor Relations
 Authority, in writing, within 30 days from the date of this Order as to
 what steps have been taken to comply with the Order.
 
    IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-537, be,
 and it hereby is, dismissed.  
 
 Issued, Washington, D.C., November 15, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, 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 UNITED
 STATES CODE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY
 OUR
 EMPLOYEES THAT:
 
    WE WILL NOT change the method of supervising distilled spirits plants
 or institute details of Firearm Inspectors to the Firearms Section to
 perform the duties of Firearm Examiners without first notifying the
 National Treasury Employees Union and affording it the opportunity to
 negotiate concerning the impact and implementation of such changes.
 
    WE WILL NOT refuse to bargain, upon request, with the National
 Treasury Employees Union concerning the impact upon employees of the
 change of supervision to general supervision from direct supervision of
 distilled spirits plants in the Louisville Area and concerning the
 impact upon employees of the detailing of Firearm Inspectors in the
 Cincinnati Area to the Firearms Section to perform the duties of the
 Firearm Examiners.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL notify the National Treasury Employees Union of any intended
 change in the method of supervising distilled spirits plants and
 institution of details of Firearm Inspectors to a Firearms Section to
 perform the duties of Firearm Examiners and upon request, negotiate with
 such representative concerning the impact and implementation of such
 actions.
 
    WE WILL bargain, upon request, with the National Treasury Employees
 Union concerning this impact upon employees of the change of supervision
 to general supervision from direct supervision of distilled spirits
 plants in the Louisville Area and concerning the impact upon employees
 of the detailing of Firearm Inspectors in the Cincinnati Area to the
 Firearms Section to perform the duties of Firearm Examiners.
                                       (Activity)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region V, Federal Labor Relations Authority, whose address is:
  Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois 60604 and
 whose telephone number is:  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    UNITED STATES DEPARTMENT OF TREASURY
    BUREAU OF ALCOHOL, TOBACCO AND
    FIREARMS, WASHINGTON, D.C. AND
    CENTRAL REGION
                                Respondent
 
    and
 
    NATIONAL TREASURY EMPLOYEES UNION AND
    NATIONAL TREASURY EMPLOYEES UNION,
    CHAPTER 88
                              Charging Party
  
                                      Case Nos. 5-CA-535
                                                5-CA-536
                                                5-CA-537
 
    Michael Sitcov, Esq.
    For the Respondent
 
    Michael Barkow, Esq.
    For the Charging Party
 
    Gregory A. Miksa, Esq.
    For the General Counsel,
    Federal Labor Relations Authority
 
    Before:  SAMUEL A. CHAITOVITZ
    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. (hereinafter referred to as the Statute) and the Rules and
 Regulations of the Federal Labor Relations Authority, 5 C.F.R. Chapter
 XIV, Sec. 2410 et seq.
 
    A charge was filed in Case No. 5-CA-535 on May 19, 1980 by National
 Treasury Employees Union (hereinafter called NTEU) and NTEU Chapter 88
 (collectively referred to as Charging Party and/or Union) against Bureau
 of Alcohol, Tobacco and Firearms (hereinafter called ATF) and ATF
 Central Region (both collectively referred to as Respondent).  Charges
 were filed in Case Nos. 5-CA-536 and 537 on May 19, 1980 by Charging
 Party against Respondent.
 
    Pursuant to the above described charges the General Counsel of the
 Federal Labor Relations Authority (FLRA) by the Regional Director for
 Region 5 issued an Order Consolidating Cases, Complaint and Notice of
 Hearing on July 31, 1980.  The Order Consolidating Cases, Complaint and
 Notice of Hearing alleges that Respondent violated Section 7116(a)(1)
 and (5) of the Statute by failing and refusing to negotiate concerning
 changes in supervision at distilled spirits plants, as alleged in Case
 No. 5-CA-535;  concerning the detailing of inspectors to the Regional
 Office to perform Firearm Examiner duties, as alleged in 5-CA-536;  and
 concerning the detailing of plant inspectors for 30 day periods from
 Lawrenceburg, Indiana to Cincinnati Area Office and from the Cincinnati
 Are office to Lawrenceburg, Indiana, as alleged in Case No. 5-CA-537.
 Respondent in its answer denied all unfair labor practice allegations.
 
    A hearing in this matter was conducted before the undersigned in
 Cincinnati, Ohio.  The General Counsel of the FLRA, Respondent and
 Charging Party were represented by counsel and afforded full opportunity
 to be heard, to examine and cross-examine witnesses, to introduce
 evidence and to argue orally.  Briefs were filed by all parties and have
 been fully considered.  The parties were granted until April 10, 1981 to
 file reply briefs, and the reply brief filed by the General Counsel of
 the FLRA has been duly considered.
 
    Upon the entire record /1/ in the matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    The Union is the exclusive collective bargaining representative of
 all non-professional wage-grade and general-schedule employees in
 Respondent's Regional Offices including its Central Regional, /2/ which
 has area offices in a number of cities including Cincinnati, Ohio;
 Indianapolis, Indiana;  and Louisville, Kentucky.  Inspectors employed
 in Respondent's various regions, including in the Central Region, are
 employees in the regional unit described above represented by NTEU.
 NTEU, Chapter 88 is the agent of NTEU and serves as NTEU's agent in the
 area covered by Respondent's Central Region.  NTEU Chapter 88's
 President and Vice-President are responsible for all contacts and
 communications with Respondent's Central Region's management for at
 least the last four years.  Further NTEU Assistant Counsel Jean Rogers
 has been responsible for all communications between NTEU and ATF at the
 National level.
 
    Case No. 5-CA-535
 
    Inspectors employed within AFT's Central Region supervise privately
 operated "In-Bond" distilled spirits plants (hereinafter referred to in
 the singular as DSP and in the plural as DSPS).  /3/ Prior to April
 1980, DSPS were under direct supervision wherein the inspector assigned
 to a particular DSP would unlock it in the morning, remain on the
 premises and perform duties throughout the day and then lock up the DSP
 at close of business.  /4/ The on premises duties included locking and
 unlocking warehouses and tanks, gauging spirits, auditing plant records
 and performing general inspector duties.
 
    In the latter part of 1979, pursuant to the Distilled Spirits Tax
 Revision Act of 1979, also called the Trade Agreements Act of 1979
 (hereinafter referred to as the Trade Agreement's Act and the Distilled
 Spirits Act), /5/ Respondent transmitted to NTEU's National office a
 memorandum whose subject was "Implementing Procedures for All-In-Bond,
 the Distilled Spirits Tax Revision Act of 1979" and published in the
 Federal Register AFTC Rules and Regulations for Implementing the
 Distilled Spirits Act, 27 CFR Parts 5 et al, (44 Fed.Reg. 239, page
 71612 et seq., Tuesday, December 11, 1979).  The foregoing provided, as
 permitted by the Distilled Spirits Act, that DSPS would go from direct
 supervision to general supervision after certain preconditions had been
 met and certain steps taken by both the private proprietors of the DSPS
 and employees of AFT.  On February 7, 1980 Respondent's Central Region
 All-In-Bond Coordinator issued a memorandum to Central Region inspectors
 stating that inspectors would not be removed from DSPS direct supervisor
 assignments until all proprietors' internal controls, security and
 storage records had been certified by the Audit Section.  Under the plan
 of general supervision the inspector unlocks the DSP in the morning,
 leaves the premises /6/ and performs various duties, within his job
 description, at other locations, which may or may not be DSPS, and then
 returns to the original DSP at the close of the work day to lock up the
 premises.
 
    On April 7, 1980, NTEU Chapter 88 President Martin J. Connell
 received a telephone call from a unit employee and was advised that ATF
 had proposed and started to implement a plan to change ATF's control
 over the DSPS in the Louisville, Kentucky area of the Central Region by
 reducing the supervision in five single inspector DSPS from direct to
 general supervision.  This was the first notification NTEU Chapter 88
 President Connell, or the NTEU, had of these changes.  Prior to April 7,
 1980 NTEU was not advised that supervision in the DSPS would be
 curtailed or reduced or changed from direct supervision to general
 supervision absent a proprietor security statement being filed and the
 specific DSP being inspected and certified as provided by ATF's
 regulations.  NTEU Chapter 88 President Connell overheard ATF
 supervisory Inspector John Beauchamp and Joseph Kamber telephoning
 affected inspectors and plant proprietors explaining the new general
 supervision procedures.
 
    NTEU Chapter 88 President Connell approached AFT Area Supervisor
 Walls and advised him that the instituting of general plant supervision
 was a change in practice and working conditions and that the NTEU had
 not been notified of the change.  Supervisor Walls replied that he was
 establishing general supervision plants at the direction of the AFT
 Central Region and that implementation would commence on April 14, 1980.
 
    On or about April 10, 1980 President Connell sent a letter to AFT
 Central Region Personnel Officer Robert H. Lumpkin stating that
 President Connell had not received notice of the impending April 14
 change to general plant supervisor, stating that he had just learned of
 the change and requesting negotiations regarding the substance, impact
 and implementation of the proposed change and that implementation of the
 change be postponed pending the outcome of the bargaining.  On April 10,
 1980 Supervisory Inspectors Beauchamp and Kamber presented a memorandum
 to Supervisor Walls setting forth a schedule for conversion of the DSPS
 to general supervision, including a list of affected plants, the dates
 of conversion and an estimation of how long it would take inspectors to
 perform the plant supervision on each individual plant.  On April 14,
 the change to general supervision was implemented.
 
    By a memorandum dated April 24, 1980 Personnel Officer Lumpkin
 advised NTEU Chapter 88 President Connell that the April 10, 1980
 request "to negotiate the assignment of Inspectors in Louisville,
 Kentucky from warehouses to other duties during the day . . . deal(s)
 with . . . assignment to work." The memorandum further stated that ATF
 is privileged not to negotiate concerning this matter and that it had
 "elected not to negotiate . . . " concerning this issue.
 
    The conversion to general supervision was eventually completed in the
 Central Region.  /7/ Prior to this conversion, and in fact to date, no
 security statements necessary for plant certification had been filed for
 the 5 affected one-man plants and certification had not accomplished
 prior to conversion to general supervision.
 
    Prior to April 1980, at both one-man and multi-man DSPS,
 approximately 10 inspectors assigned in the Louisville Area remained at
 such DSPS their entire 8-hour day while three inspectors, when assigned
 to multiman DSPS, occasionally left the plants to perform other
 assignments.  The inspectors were transferred from one DSP to another
 every two to six months.  Accordingly all inspectors would be affected
 by the conversion to DSPS-General Plant Supervision at the 5 affected
 one-man DSPS by virtue of their eventual rotation to such plants.
 Subsequent to the April 1980 change of the DSPS to General Plant
 Supervision, at the one man DSPS, the inspector would leave the DSP
 after unlocking the plant and doing some checks, in order to perform
 other functions and duties elsewhere, returning to the DSP to lock it up
 at the end of the workday.  None of the affected inspectors were
 required to engage in any duties outside of their position descriptions.
 
    Prior to April 1980 Inspectors assigned to the one-man DSPS would
 drive or take public transportation to the plants in question.  They did
 not need any transportation during the workday.  There were three GSA
 cars available to perform non-DSPS inspection duties and these were
 almost exclusively performed by three Louisville inspectors.  After the
 April 1980 change to general supervision eight inspectors were regularly
 assigned to perform non-DSPS inspections with no increase in the total
 number of available GSA cars.  Thus inspectors found public
 transportation insufficient and, because of there were only three GSA
 cars, found they had to use their own vehicles to perform their non-DSPS
 inspection duties.  Some of these duties involved extensive travel and
 some of the inspectors were concerned whether their automobiles were
 safe or road worthy.  Inspectors were reimbursed for such use of their
 private automobiles.
 
    Prior to April 1980 inspectors doing DSPS work at one-man plants wore
 casual work attire throughout the day.  After the change to general
 supervision inspectors wore casual work clothes to perform their duties
 in the DSPS and then needed changes of clothes, coats and ties, in order
 to perform their additional duties which involved meeting the general
 public and high industry officials.
 
    Prior to the April 1980 change, inspectors assigned to one-man plants
 could store lunches in refrigerators located in the government offices
 in the DSPS and there were usually coffee pots available.  After the
 change to general supervision the affected inspectors were not at the
 one-man DSPS at lunch hour and thus could no longer utilize the
 refrigerators and coffee pots.  Thus they had to spend more money for
 lunch and coffee breaks.
 
    Prior to the April 1980 change, inspectors assigned to the one-man
 DSPS could be readily contacted at work with respect to family
 emergencies.  Subsequent to the change to general supervision the
 affected inspectors were much more difficult to contact, if they could
 be contacted at all.
 
    Subsequent to the April 1980 change to general supervision the DSPS
 inspectors, who had limited experience and training in non-DSPS aspects
 of inspector duties and responsibilities, were called upon to perform
 non-DSPS inspector duties in the field, with limited supervisory
 availability and limited training.
 
    NTEU filed an unfair labor practice charge against ATF on January 31,
 1980 in Case No. 3-CA-838.  NTEU and ATF signed a memorandum of
 understanding on October 1, 1980 which states in part:
 
          "(1) NTEU will withdraw with prejudice the unfair labor
       practice concerning the Distilled Spirits Tax Revision Act (Case
       No. 3-CA-838).
 
          (2) . . . .
 
          (3) . . . .
 
          (4) This memorandum of understanding constitutes full and
       complete settlement and satisfaction of any and all causes of
       action, damages, claims and demands related to the implementation
       of the Act."
 
    Withdrawal of the Unfair Labor Practice Charge in Case No. 3-CA-838
 was approved by the Regional Director, Region 3, FLRA by letter dated
 September 24, 1980.  /8/ No withdrawal requests or settlement agreements
 were approved or entered into by any Regional Director of the FLRA with
 respect to Case No. 5-CA-535.
 
    Case No. 5-CA-536
 
    On or about April 14, 1980 NTEU Chapter 88 Steward Glenn Hagar
 learned from unit employees that GS 7 and 9 Firearm Inspectors in the
 Cincinnati Area Office had been detailed on or about April 1, 1980 to
 the Regional Office Firearms Section, located in the same building as
 the Cincinnati Area Office.  NTEU Chapter 88 received no notice of this
 detail from any agent of ATF.
 
    On or about April 21, 1980 Union Steward Hagar notified NTEU Chapter
 88 President Connell about this detail.  By letter dated April 21, 1980
 to ATF Regional Personnel Officer Lumpkin, NTEU Chapter 88 President
 Connell requested to bargain over the substance, impact and
 implementation of the two week assignments of these inspectors to the
 Firearms Section to perform the duties of Firearm Examiners.  Personnel
 Officer Lumpkin's response to April 24, 1980 denied President Connell's
 request to bargain.  The assignments of the inspectors to the Firearms
 Section were made because there was a backlog of firearm applications
 that had to be processed.  Area supervisors were responsible for
 choosing which inspectors would be assigned to the Firearms Section and
 neither NTEU Chapter 88 nor the inspectors themselves were advised of
 the basis for selection of the inspectors for assignment.  There was no
 plan to see that these details were equitably distributed among affected
 employees.  The detail consisted of processing firearm applications,
 separating and processing 5 copy license forms and reviewing the forms
 to be sure they were completed.  These were routine tasks usually
 handled by Firearm Examiners, GS 6 clerks.  The foregoing were not
 duties set forth in the inspector position description.  The inspectors'
 duties ordinarily involved meeting with high and middle level corporate
 management on a daily basis.  Between April 1, 1980 and mid-May 1980 a
 total of six inspectors were assigned on such two week details.  This
 was the first such detail President Connell could recall in his 16 years
 of experience and the record does not establish that previously there
 had been such details in the Central Region, although details had been
 employed in a similar situation in the North-Atlantic Region.
 
    Article 10 of the collective bargaining agreement covers "Details".
 Section 3 of Article 10 provides that a detail is a temporary assignment
 of an employee to a different position for a specified period.  Section
 2 sets forth the circumstances under which ATF can detail employees to a
 lower-graded position.  /9/
 
    Case No. 5-CA-537
 
    On or about April 9, 1980 NTEU Chapter 88, through Shop Steward
 Hagar, became aware that ATF was already implementing a training program
 whereby certain DSPS inspectors from the Lawrenceburg, Indiana
 post-of-duty were assigned to the Cincinnati Area Office for 30 days and
 certain inspectors were assigned from the Cincinnati Area Office to the
 Lawrenceburg post-of-duty for 30 day periods.  Union Steward Hagar
 received this information as an employee, a DSPS inspector, when told of
 his assignment under this program on April 9, 1980.  NTEU Chapter 88 had
 no prior notice of any kind that ATF was implementing this program.
 
    Steward Hagar contacted President Connell and advised him of the
 institution of the reciprocal assignments from Lawrenceburg to
 Cincinnati.  By letter dated April 9 to Personnel Officer Lumpkin
 President Connell requested to bargain about the substance, impact and
 implementation of the program and that its implementation be postponed
 pending the outcome of the negotiations.
 
    Personnel Officer Lumpkin responded by the letter of April 24, 1980
 wherein he refused to negotiate concerning this matter.  The reciprocal
 assignment training program between Lawrenceburg and Cincinnati
 continued during April and May 1980.
 
    Lawrenceburg is approximately 25 miles from Cincinnati.  The record
 establishes that the Lawrenceburg inspectors, when working at their home
 office, were assigned to DSPS inspector work and such work constituted
 90 to 95 percent of the inspectors' responsibilities.  While assigned to
 the Cincinnati Area Office the Lawrenceburg inspectors were assigned no
 DSPS inspections;  rather they performed inspections concerning brewery
 and explosive and firearm compliance matters, matters which were very
 unfamiliar to some of the Lawrenceburg inspectors.  With respect to at
 least one of the Lawrenceburg inspectors, /10/ while assigned to
 Cincinnati, his commuting time to work was increased by 30 to 45 minutes
 each way;  thus he frequently arrived home later than when he was
 commuting to and from Lawrenceburg.  He was required to wear more formal
 clothing suited to inspection work in Cincinnati as contrasted to the
 casual work clothes worn while performing DSPS inspections.
 
    Lawrenceburg post-of-duty came under the jurisdiction of the
 Cincinnati area office in mid 1979.  The April and May 1980 training
 assignments between Lawrenceburg and Cincinnati were the first such
 assignments between these two offices since Lawrenceburg came under the
 jurisdiction of the Cincinnati Area Office.  Since 1975 or 1976 there
 has been rotation of inspectors between inspectors assigned to the
 Cincinnati Area Office and inspectors assigned to DSP Ohio 1.  The work
 in these two locations are different.  Prior to it becoming under the
 jurisdiction of the Cincinnati Area Office, Lawrenceburg was under the
 jurisdiction of the Indianapolis, Indiana Area Office and there had been
 occasions when Lawrenceburg inspectors were temporarily assigned to the
 Indianapolis office for training.
 
                        Discussion and Conclusions
 
    Issues
 
    (a) Whether Respondent failed and refused to afford the Union
 adequate notice and/or an opportunity to bargain concerning the
 implementation and impact on employee working conditions of its change
 to "DSPS-General Plant Supervision" at five Louisville, Kentucky area
 In-Bond Distilled Spirits Plants in April 1980, in violation of 5 U.S.C.
 7116(a)(1) and (5).
 
    (b) Whether Respondent failed and refused to afford the Union
 adequate notice and/or an adequate opportunity to bargain concerning the
 implementation and impact on employee working conditions of its detail
 of six employee Inspectors from its Cincinnati Area Office to its
 Regional Office Firearms Section to perform Firearm Examiner duties in
 April and May 1980, in violation of 5 U.S.C. 7116(a)(1) and (5).
 
    (c) Whether Respondent failed and refused to afford the Union
 adequate notice and/or an opportunity to bargain concerning the
 implementation and impact on employee working conditions of its
 institution of a program of reciprocal assignments of Inspectors for
 30-day periods between its Lawrenceburg, Indiana post-of-duty and its
 Cincinnati Area Office in violation of 5 U.S.C. 7116(a)(1) and (5).
 
    5-CA-535
 
    Respondent urges that the "settlement" entered into by ATF and NTEU
 in connection with Case No. 3-CA-838 also disposes of Case No. 5-CA-535
 because the "settlement" states that it constitutes the full "settlement
 and satisfaction of any and all causes of action . . . and demands
 related to the implementation of the (Distilled Spirits Tax Revision)
 Act." Sections 2423.29 and 2423.11 of the FLRA's Rules and Regulations
 require Regional Director approval for withdrawals or settlement of
 unfair labor practice cases.  The Respondent makes extensive argument
 urging that in the federal sector unfair labor practice cases involve
 private rights between the parties and not public rights.  Although I am
 disposed to reject ATF's position, I need not reach it;  rather I am
 bound to follow the FLRA's Rules and Regulations which require a
 Regional Director's approval of and participation in the withdrawal or
 settlement of a case.  Accordingly, because the Regional Director for
 Region 5 has neither approved a withdrawal nor entered into a settlement
 in Case No. 5-CA-535, I must reject ATF's contention that this matter
 has already been settled and is not appropriately before me.
 
    The record establishes that change from direct supervision to general
 supervision of the one-man DSPS was a substantial change in the affected
 inspectors' working conditions, requiring them to travel to additional
 locations during the day and to perform tasks which, although in their
 job descriptions, they had not routinely performed.  The impact on the
 inspectors was substantial requiring them to deal with additional travel
 problems, communication problems in case of personnel emergencies,
 performing duties with which they were unfamiliar, etc.  Accordingly
 NTEU was entitled to bargain about the impact and implementation of this
 change.  /11/ NTEU was entitled to notice sufficiently in advance of the
 change it enable it to request to bargain about the impact and
 implementation of the change before the change became effective.  Such
 notice of the change was never given to NTEU, and by failing in this
 responsibility ATF violated Section 7116(a)(5) and (1) of the Statute.
 U.S. Air Force, AFLC, Aerospace Guidance and Meteorology Center, Newark,
 Ohio, 4 FLRA No. 70 (1980) (hereinafter called the Air Force Case).
 
    ATF's refusal to bargain about the impact and implementation of the
 change, after being specifically asked to do so by NTEU, constituted a
 violation of Section 7116(a)(5) and (1) of the Statute.  /12/ ATF's
 contention that, because it was required by the Trade Agreement Act to
 make the subject changes, it was somehow relieved of its obligation to
 bargain about the impact and implementation of such change is rejected.
 Although the Trade Agreement Act might have required the subject change
 in working conditions, there is no showing that it in anyway limited
 ATF's ability to bargain with NTEU with respect to the implementation of
 the changes or the many ways to minimize the adverse impact on employees
 resulting from the change.  Cf. NLRB Region V, 2 FLRA No. 42 (1979).
 
    Accordingly, it is concluded that ATF violated Sections 7116(a)(5)
 and (1) of the Statute by failing to give NTEU notice of the change from
 direct to general supervision of the DSPS and by refusing, after being
 asked, concerning the implementation and impact of such change.
 
    5-CA-536
 
    It is concluded that the detailing of the Firearm Inspectors to the
 Firearms Section to perform the primarily clerical duties of the Firearm
 Examiners constitutes a substantial change in the working conditions of
 the inspectors with foreseeable and substantial impact on the
 inspectors, including affecting career development and work outside
 their position descriptions.  Accordingly NTEU was entitled to advance
 notice of the change to enable it to bargain concerning the
 implementation of the change and the impact before the change became
 effective.  /13/ In the instant case ATF did not give the NTEU the
 required notice of the change and, after requested to bargain by NTEU,
 refused to bargain concerning the implementation of the change and its
 impact on the affected inspectors.  ATF urges that its conduct was not a
 violation of Section 7116(a)(5) of the Statute because firearm
 applications have to be processed within 45 days and the Firearms
 Section was short of staff.  There is no dispute that ATF was faced with
 these problems and was required to act.  However, this is analogous to
 the arguments made in Case No. 5-CA-535 with respect to the Trade
 Agreement Act and they must be rejected in the same reasons.  The mere
 fact ATF is faced with a real problem does not free it from meeting its
 obligation to provide NTEU with adequate notice and an opportunity to
 bargain with respect to the implementation of the detail program and its
 impact on the employees.
 
    ATF contends that it was privileged to act unilaterally in the
 instant case with no obligation to give notice because the matter was
 already provided for in Article 10 of the collective bargaining
 agreement.  Article 10 merely defines details and describes the
 circumstances in which they may be utilized;  it does not describe how
 such details are to be implemented (e.g. how employees are to be
 selected;  how long details are to last, etc.) or how the adverse impact
 of such details on employees is to be minimized (e.g. the effect on
 employee career development of performing clerical and below grade
 tasks, etc).  The implementation of the details and their impact on
 employees are matters about which NTEU is entitled to bargain unless
 NTEU has clearly and intentionally waived such rights.  Cf. Department
 of the Army, U.S. Army Electronics Command, Fort Monmouth, New Jersey,
 FLRC No. 76A-101;  Internal Revenue Service, National Office, A/SLMR No.
 1079 (1978);  and Internal Revenue Service, Fresno Service Center,
 A/SLMR No. 1119.  In the instant case therefore ATF's waiver argument
 must be rejected because Article 10 of the collective bargaining
 agreement, although dealing with ATF's ability to utilize details and
 the circumstances when they may be utilized, does not mention or in any
 way waive NTEU's right to advance notice of such details or to bargain
 about the implementation and impact of such details.
 
    Accordingly, it is concluded that ATF's failure to provide NTEU with
 advance notice of the details of Firearm Inspectors to the Firearms
 Section and ATF's refusal to bargain concerning the impact and
 implementation of the details, after having been so requested by NTEU,
 violated Sections 7116(a)(5) and (1) of the Statute.
 
    5-CA-537
 
    The General Counsel urges that ATF violated Sections 7116(a)(5) and
 (1) of the Statute by unilaterally, and without notice instituting a
 system of reciprocal training assignments between inspectors assigned to
 the Lawrenceburg post-of-duty and the Cincinnati Office and by refusing
 to bargain about the impact and implementation of this change after
 being so requested by NTEU.  The Lawrenceburg post-of-duty came under
 the control of the Cincinnati Area Office in mid 1979.  The record
 establishes that since 1975 or 76 the Cincinnati Area Office operated
 some reciprocal training programs.  Thus it is concluded that the
 operation and institution of the subject training program with respect
 to the Lawrenceburg post-of-duty was not a unilateral change.  Rather,
 it would seem that the time the realignment of Lawrenceburg under the
 Cincinnati Area Office took place would have been the appropriate time
 for NTEU to negotiate and bargain with ATF concerning which Cincinnati
 Area Office training program would apply to Lawrenceburg and the other
 aspects of the implementation and impact of the realignment.  /14/
 However, once the Lawrenceburg post-of-duty was included within the
 jurisdiction of the Cincinnati Area Office, the working conditions and
 policies of the Cincinnati Area Office would automatically become
 applicable, including the practice of having reciprocal training.
 Hence, there was no unilateral change with respect to the institution of
 the training program in Lawrenceburg and thus no violation by ATF of
 Sections 7116(a)(5) and (1).
 
    Remedy
 
    It is concluded that a status quo ante remedy is not appropriate in
 the subject case because the details of Firearm Inspectors has ceased
 and the conversion from direct to general /15/ supervision of DSPS was
 made because it was required by law.
 
    Having found and concluded that ATF violated Sections 7116(a)(5) and
 (1) of the Act in Case Nos. 5-CA-535 and 536 with respect to the changes
 in DSPS supervision and detail of Firearm Inspectors to the Firearms
 Section, but that ATF did not violate Sections 7116(A)(5) and (1) of the
 Act in Case No. 5-CA-537 with respect to the utilization of a reciprocal
 training program in Lawrenceburg, it is recommended that the Federal
 Labor Relations Authority issue an Order dismissing those allegations of
 the Complaint concerning the reciprocal training program in the
 Lawrenceburg post-of-duty, Case No. 5-CA-537, and with respect to the
 remaining allegations of the Complaint, issue the following:
 
                                   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 Department of Treasury, Bureau of
 Alcohol, Tobacco and Firearms, Washington, D.C. and its Central Region:
 
    1.  Cease and desist from:
 
          (a) Changing the method of supervision of distilled spirits
       plants and instituting details of Firearm Inspectors to Firearms
       Section to perform the duties of Firearms Examiners without first
       notifying National Treasury Employees Union and affording it the
       opportunity to consult and negotiate, to the extent consonant with
       law and regulations, concerning the impact and implementation of
       such changes.
 
          (b) Refusing to bargain with National Treasury Employees Union
       concerning the impact upon employees of the change of supervision
       to general supervision from direct supervision of distilled
       spirits plants in the Louisville Area and concerning the impact
       upon employees of the detailing of Firearm Inspectors in the
       Cincinnati Area to the Firearms Section to perform the duties of
       Firearm Examiners.
 
          (c) In any like or related manner, interfering with,
       restraining, or coercing its employees in the rights assured by
       the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Notify the National Treasury Employees Union of any
       intention to change the method of supervision of distilled spirits
       plants or institute details of Firearm Inspectors to a Firearms
       Section to perform the duties of Firearm Examiners and, upon
       request, consult and negotiate with such representative, to the
       extent consonant with law and regulations, concerning the impact
       and implementation of such actions.
 
          (b) Bargain with the National Treasury Employees Union
       concerning the impact upon employees of the change of supervision
       to general supervision from direct supervision of distilled
       spirits plants in the Louisville Area and concerning the impact
       upon employees in the detailing of Firearm Inspectors in the
       Cincinnati Area to the Firearms Section to perform the duties of
       Firearm Examiners.
 
          (c) Post at its facilities 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 an appropriate official and they shall be posted for 60
       consecutive days thereafter in conspicuous places, including all
       places where notices to employees are customarily posted.  The
       Agency shall take reasonable steps to insure that such notices are
       not altered, defaced, or covered by any other material.
 
          (d) Notify the Federal Labor Relations Authority in writing,
       within 30 days from the date of this Order, what steps have been
       taken to comply herewith.
 
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  June 4, 1981
    Washington, D.C.
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT change the method of supervisory distilled spirits plants
 or institute details of Firearm Inspectors to the Firearms Section to
 perform the duties of Firearm Examiners without first notifying National
 Treasury Employees Union and affording it the opportunity to consult and
 negotiate, to the extent consonant with law and regulations, concerning
 the impact and implementation of such changes.
 
    WE WILL NOT refuse to bargain with the National Treasury Employees
 Union concerning the impact upon employees of the change of supervision
 to general supervision from direct supervision of distilled spirits
 plants in the Louisville Area and concerning the impact upon employees
 of the detailing of Firearm Inspectors in the Cincinnati Area to the
 Firearms Section to perform the duties of the Firearm Examiners.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL notify National Treasury Employees Union of any intended
 change in the method of supervisory distilled spirits plants and
 institution of details of Firearm Inspectors to a Firearms Section to
 perform the duties of Firearm Examiners and upon request, consult and
 negotiate with such representative, to the extent consonant with law and
 regulations, concerning the impact and implementation of such actions.
 
    WE WILL bargain with National Treasury Employees Union concerning the
 impact upon employees of the change of supervision to general
 supervision from direct supervision of distilled spirits plants in the
 Louisville Area and concerning the impact upon employees of the change
 of supervision to general supervision from direct supervision of
 distilled spirits plants in the Louisville Area and concerning the
 impact upon employees of the detailing of Firearm Inspectors in the
 Cincinnati Area to the Firearms Section to perform the duties of Firearm
 Examiners.
                                       (Agency or Activity)
 
    Dated:  By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any question concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director of Region V, Federal Labor Relations Authority, whose address
 is:  175 West Jackson Boulevard, Suite A-1359, Chicago, Illinois 60606;
 Telephone No. (312) 886-3468.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The transcript is corrected as follows:
 
          Page 5, line 24, from "1(a) through (f)" to "1(a) through (i)"
 
          Page 9, line 25, from October 24, 1970 to October 24, 1980
 
          Page 14, line 17, from "bargaining units" to "bargaining unit"
 
          Page 54, line 8 from "change from" to "change for"
 
          Page 87, line 15, from "these experiences" to "these
       Inspectors"
 
 
    /2/ The Central Region Office is located in Cincinnati.
 
 
    /3/ Some DSPS were under the supervision of one inspector and others
 were under the supervision of more than one inspector.
 
 
    /4/ When more than one inspector were assigned to a DSP one or more
 inspectors would remain at the plant all day and, if not needed, one of
 the additional inspectors might have duty assignments elsewhere during
 the day.
 
 
    /5/ The Distilled Spirits Tax Revision Act of 1979 is Title VIII of
 the Trade Agreements Act of 1979;  Pub. L. 96-39;  26 U.S.C. 5201, et
 seq.
 
 
    /6/ Prior to leaving the premises the inspector might perform some
 limited duties for a brief period of time.
 
 
    /7/ At least 5 one-man plants were converted