16:0528(74)CA - Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, DC and its Central Region and NTEU and NTEU Chapter 88 -- 1984 FLRAdec CA



[ v16 p528 ]
16:0528(74)CA
The decision of the Authority follows:


 16 FLRA No. 74
 
 UNITED STATES DEPARTMENT OF THE TREASURY
 BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
 WASHINGTON, D.C., AND ITS CENTRAL REGION
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION AND
 NATIONAL TREASURY EMPLOYEES UNION
 CHAPTER 88
 Charging Party
 
                                            Case No. 5-CA-592
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision finding
 that Respondent had engaged in the unfair labor practices alleged in the
 complaint and recommending that it cease and desist therefrom and take
 certain affirmative action.  The Respondent filed exceptions with
 respect to the Judge's Decision and the Charging Party filed a response
 to Respondent's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and Recommended Order, except as modified
 herein.
 
    In agreement with the Judge's conclusion, the Authority finds that
 the Respondent violated section 7116(a)(1) and (5) of the Statute by (1)
 its failure to give the union adequate prior notice of its decision to
 change the scheduling of holiday work so as to afford the union the
 opportunity to request bargaining concerning the impact and
 implementation of the change;  and (2) by its subsequent refusal, after
 implementation of its decision, to honor the union's request to bargain
 over the impact of the change.  In so finding, the Authority notes that
 where an Agency in exercising a management right under section 7106 of
 the Statute decides to change a condition 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).
 /1/
 
                                   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) Instituting a change in the assignment of work on holidays
 without first notifying the exclusive bargaining representative, the
 National Treasury Employees Union and its Chapter 88, and affording it
 the opportunity to negotiate concerning the impact and implementation of
 such change.
 
    (b) Refusing to negotiate with the National Treasury Employees Union
 and its Chapter 88 concerning the impact and implementation of any
 change in the assignment of work on holidays.
 
    (c) Dealing directly with bargaining unit employees represented by
 the National Treasury Employees Union and its Chapter 88 with respect to
 personnel policies and practices or other matters affecting the working
 conditions of employees, particularly including the soliciting of
 suggestions concerning the procedures to be used in selecting employees
 for work on holidays.
 
    (d) 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 and its Chapter 88
 of any decision to change the assignment of holiday work and, where
 requested, negotiate concerning the impact and implementation of such
 change.
 
    (b) 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 shall be
 posted and maintained for 60 consecutive days thereafter in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, 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 herewith.  
 
 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 CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT institute a change in the assignment of work on holidays
 without first notifying the exclusive bargaining representative, the
 National Treasury Employees Union and its Chapter 88, and affording such
 representative the opportunity to negotiate concerning the impact and
 implementation of such change.
 
    WE WILL NOT refuse to bargain with the National Treasury Employees
 Union and its Chapter 88 concerning the impact and implementation of the
 change in the assignment of work on holidays.
 
    WE WILL NOT deal directly with bargaining unit employees represented
 by the National Treasury Employees Union and its Chapter 88 with respect
 to personnel policies and practices or other matters affecting the
 working conditions of employees, particularly including the soliciting
 of suggestions concerning the procedures to be used in selecting
 employees for work on holidays.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the rights assured by the Federal Service
 Labor-Management Relations Statute.
 
    WE WILL notify the National Treasury Employees Union and its Chapter
 88 of any change in the assignment of holiday work and, where requested,
 negotiate, concerning the impact and implementation of such change.
                                       (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 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:
  175 W. Jackson Blvd., Suite A-1359, Chicago, IL 60604;  telephone No.
 (312) 886-3468.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    UNITED STATES DEPARTMENT OF THE TREASURY
    BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
    WASHINGTON, D.C., AND ITS CENTRAL REGION
                                Respondent
 
    and
 
    NATIONAL TREASURY EMPLOYEES UNION AND
    NATIONAL TREASURY EMPLOYEES UNION,
    CHAPTER 88
                              Charging Party
 
                                       Case No. 5-CA-592
 
    Imelda M. Koett Kirk, Esq.
    Toby Bishop, Esq.
    For the Respondent
 
    Michael Barkow, Esq.
    For the Charging Party
 
    Charles R. Prock, Esq.
    Arlander Keys, Esq.
    For the General Counsel
 
    Before:  FRANCIS E. DOWD
    Administrative Law Judge
 
                                DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute (Statute), 92 Stat. 1191, 5 U.S.C. 7101, et seq.  It
 was instituted by the Regional Director of Region 5 by the issuance of a
 complaint and notice of hearing on September 23, 1980 based upon a
 charge filed on June 26, 1980 by the Charging Party (also referred to
 herein as the Union).
 
    The complaint alleges that Respondent refused to bargain in violation
 of Section 7116(a)(5) and (1) by unilaterally changing a past practice
 concerning the scheduling of holiday work without providing the Union
 with adequate notice and/or an opportunity to bargain concerning the
 change.  It is further alleged that Respondent also violated Section
 7116(a)(5) and (1) when it bypassed the Union and bargained directly and
 individually with bargaining unit employees concerning a matter
 affecting working conditions.
 
    A hearing was held in Cincinnati, Ohio at which the parties were
 represented by counsel and afforded full opportunity to adduce evidence
 and call, examine, and cross-examine witnesses and argue orally.  Briefs
 filed by Respondent and the General Counsel have been duly considered.
 
    Upon consideration of the entire record in this case, including my
 evaluation of the testimony and evidence presented at the hearing, and
 from my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions of law, and recommended order.
 
                             Findings of Fact
 
    1.  At all times material herein, Respondent has operated and
 supervised a facility in Cincinnati, Ohio known as the Bureau of
 Alcohol, Tobacco and Firearms Central Regional Office, hereinafter
 called the Activity, which Regional office has Area offices in
 Cincinnati, Ohio;  Indianapolis, Indiana;  Louisville, Kentucky;
 Cleveland, Ohio;  Detroit, Michigan;  and Frankfort, Kentucky.
 
    2.  At all times material herein, the National Treasury Employees
 Union has been the exclusive representative of all non-professional
 General Schedule and Wage Grade employees employed by the regional
 offices of the Bureau of Alcohol, Tobacco and Firearms, Department of
 the Treasury, with certain exclusions.
 
    3.  Since September 19, 1977, and at all times material herein, the
 Bureau of Alcohol, Tobacco and Firearms and the National Treasury
 Employees Union have been, and are now, parties to a collective
 bargaining agreement covering the employees in the unit referred to
 above.
 
    4.  At all times material herein, National Treasury Employees Union,
 Chapter 88, has been, and is now, an agent of National Treasury
 Employees Union.
 
    5.  Past Practice Prior to May 26, 1980
 
    Inspectors employed by the Respondent are assigned to work at
 Distilled Spirits Plants owned and operated by private companies.  Since
 these plants do not honor all Federal holidays, it is necessary three or
 four times each year to assign an inspector to work on a Federal holiday
 (like President's Day, Memorial Day and Columbus Day) at a particular
 plant.  By law, Respondent had to have an inspector remain at the plant
 the entire time it was in operation.  The inspector would report to
 work, remove the locks, perform other duties as required during the day,
 /2/ and secure the locks at closing time.  If the plant were in
 operation for eight hours, the inspector was paid for eight hours work
 at the regular rate, in addition to the eight hours pay he was already
 being paid for the holiday.  The method utilized by management to select
 inspectors for this assignment was for the supervisor to obtain
 volunteers from among the inspectors normally assigned to the particular
 plant in question.  /3/ Since this informal method was apparently
 successful and caused no problems or resulted in grievances, a different
 or more formal method of selection was never an issue.
 
    6.  Public Law No. 96-39, effective January 1, 1980 made certain
 charges which in Respondent's opinion permitted it to make
 determinations, on a plant-by-plant basis, that holiday work no longer
 required the continued presence of an inspector during the entire time
 the plant was in operation.  Respondent determined that it was only
 necessary to dispatch an inspector to the plant in the morning to unlock
 the facilities (and be paid for two hour's work) and to return at the
 end of the day to lock the facilities (and again be paid for two hour's
 work).  This determination was not communicated to the Union.
 
    7.  On May 20, 1980 shortly before the Memorial Day holiday on May
 26, Officer-in-Charge John Beauchamp, an agent of Respondent, came to
 the Government office at the Seagrams's plant to obtain volunteers for
 duty on Memorial Day.  He first explained Respondent's new procedure for
 holiday work (as discussed above) so that any volunteer would know he
 would only receive pay for four hours, rather than eight hours, as in
 the past.  Present at this discussion were employees Clay Ballinger, Tom
 Woods and Abrey Milstead.  The latter two employees testified at the
 hearing and are hereby credited in all respects.  The discussions
 initiated by Beauchamp lasted about fifteen minutes.  Beauchamp raised
 the subject of their being a need for a fair system of selecting people
 for overtime work.  Various suggestions were discussed including length
 of overall government service, length of service with this particular
 agency, and alphabetical or reverse alphabetical order.  Beauchamp even
 suggested the possibility of drawing names out of a hat.  According to
 Milstead, the discussion ended with Beauchamp asking the employees to
 discuss it among themselves and see if they could come up with an idea.
 
    8.  This meeting was promptly reported to Union President Martin J.
 Connell who, on or about May 20, called Beauchamp and challenged his
 actions.  According to Connell, whom I credit, Beauchamp replied that
 (1) no change was being made, (2) employees were volunteering rather
 than being required to work, and (3) his conversations with employees
 were discussions, not negotiations.  By letter dated May 21 to
 Respondent's Regional Personnel Officer, Robert H. Lumpkin, the Union
 made a request to bargain about the substance, impact and implementation
 of Respondent's decision to change its past practice with respect to
 working on Federal holidays.  The Union also protested Respondent's
 failure to notify it of the change and Respondent's actions in bypassing
 the Union and dealing directly with individual employees.
 
    9.  On May 22, Beauchamp asked Milstead if he was still interested in
 working on Memorial Day and told him the old policy had changed, so he
 would only get paid for four hours.  Milstead declined.  Beauchamp said
 that he might have to use some system of selection for the coming
 holiday because he needed two employees, but only had one volunteer.
 Beauchamp "rehashed" the same systems of scheduling that he had brought
 up at the previous meeting.  Ballinger and Woods were present and
 participated in the brief discussion lasting only five or ten minutes.
 According to Woods, it was on May 22 that Beauchamp said "How do you
 guys want to handle this?  It's whatever you guys decide." I find that
 Beauchamp made this remark and in my opinion it is not significant
 whether it occurred on May 20 or May 22.  The person who had already
 volunteered was Don Coleman.  While there, Beauchamp telephoned employee
 Jimmie Redeford.  When Redeford inquired about the hours he was told
 that "the Bureau had decided to count it as two emergency call backs
 instead of a regular eight hour tour." Redeford agreed to work.
 According to Redeford, whom I credit, he also had a conversation with
 either Camper or Beauchamp (both Officers-in-Charge) in which he was
 asked his opinion as to whether seniority or alphabetical basis was the
 more equitable way to assign overtime work.  He replied that he didn't
 care for either method.
 
    10.  By letter of May 30 (Jt. Exh. No. 3) Respondent replied to the
 Union's bargaining request of May 21 and stated that the duties required
 on a holiday were properly determined by management and that the method
 of determining who receives an assignment to work on a holiday was
 governed by Article 23 of the contract, which concern "overtime" (Jt.
 Exh. No. 2).  Although Respondent's letter characterized the holiday
 work as "overtime," it is clear from subsequent correspondence (Jt. Exh.
 Nos. 4 and 5) that Coleman and Redeford received holiday pay and not
 overtime.
 
    11.  By letter of June 24, the Union again requested to negotiate
 "concerning the scheduling of a split workday (especially on a holiday)
 . . . ." Respondent's reply dated July 1 characterized the Union's
 letter as a request "to negotiate a work schedule to cover periods when
 no work is required by law" (Jt. Exh. No. 8).  The record does not
 establish, by testimony or documentary evidence, that Respondent ever
 replied affirmatively to the Union's request to bargain.
 
                                  Issues
 
    A. Whether Respondent had an obligation to bargain concerning his
 decision to change a work assignment.
 
    B.  Whether Respondent had an obligation to bargain concerning the
 impact and implementation of its decision to change an existing practice
 with respect to work assignments on Federal holidays.
 
    C. Whether Respondent failed to provide the Union with notice of its
 decision.
 
    D.  Whether Respondent bypassed the Union and violated 5 U.S.C.
 7116(a)(1) and (5) by meeting with bargaining unit employees and
 discussing and soliciting suggestions for securing employees to perform
 the new work assignment on holidays.
 
                     Discussion and Conclusions of Law
 
    A. Past Practice-- Holiday Work
 
    It is clear from the record that a past practice existed whereby
 employees were assigned to work and to perform specific duties at
 distilleries which were in operation on certain Federal holidays.  This
 same past practice encompassed a requirement that assigned employees
 remain at the plant the entire time it was in operation, whether that be
 less than eight hours, more than eight hours, or exactly eight hours.
 The employee would be paid at a regular time rate for the number of
 hours on duty, in addition to his normal eight hours of pay for the
 holiday.
 
    Notwithstanding Respondent's contention that no change in past price
 occurred, I have no difficulty on this record in finding and concluding
 that on May 20, 1980, the Respondent changed its past practice,
 discussed above, and instituted a new practice whereby employees
 assigned to work on a Federal holiday were not required to stay on the
 premises of the distillery while it was in operation.  The direct impact
 of this change or employees was that they were required to only spend a
 minimum amount of time at the plant and be paid only for four hours of
 work (two at the beginning of the day and two at the end of the day),
 even though the actual time required to perform their duties may have
 only added up to at most a total of two hours altogether.  /4/
 
    I also find that a past practice existed with respect to the
 procedures followed by Respondent in the selection and assignment of
 employees to actually work on Federal holidays.  After making a
 determination that a particular distillery would be in operation on a
 Federal holiday, management representatives at the supervisory level
 would obtain volunteers from among the employees.  Because employees
 were in effect receiving double-time pay for holiday work, there was no
 shortage of volunteers.  The record in this case demonstrates that with
 respect to the Memorial Day holiday, Respondent utilized the same
 practice as in the past in selecting employees;  that is, it sought
 volunteers.  However, because the new schedule for holidays would result
 in lower pay, it was obvious that the practice of seeking volunteers
 might not be as successful as in the past and, therefore, a different
 procedure might become necessary.  Accordingly, I find that Respondent
 did not change its procedures for selection of employees to work on
 Federal holidays.  Later in this decision, I will discuss the alleged
 violation of Section 7116(a)(5) based upon the conversations with
 employees initiated by supervisors concerning any new selection
 procedures to be utilized in the future.
 
    B.  Respondent's Obligation to Bargain about its Decision to Change a
 Work Assignment
 
    Section 7106(a)(2)(A)(B) gives management the right to assign and
 direct employees, and the right to assign work.  In the lead case
 involving the Bureau of Public Debt, /5/ The Authority fully analyzed
 the rights of management to direct its employees and assign work under
 Section 7106(a) of the Statute and stated as follows:
 
          The right to direct employees in the agency is not defined in
       the Statute, is not specifically discussed in the legislative
       history and has not been applied in prior decisions of the
       Authority.  Therefore, consistent with the main purpose and
       meaning of the Statute and in the absence of any indication that
       the phrase as used in the Statute has a meaning other than its
       ordinary meaning, /6/ the right "to direct . . . employees in the
       agency" means to supervise and guide them in the performance of
       their duties on the job.
 
          The right to assign work to employees or positions under
       section 7106(a), subject to the provisions of section 7106(b), is
       composed of two discretionary elements:  (1) the particular duties
       and work to be assigned, and (2) the particular employees to whom
       or positions to which it will be assigned.  /7/ Furthermore,
       management discretion in this regard includes the right to assign
       general continuing duties, /8/ to make specific periodic work
       assignments to employees, /9/ to determine when such assignments
       will occur /10/ and to determine when the work which has been
       assigned will be performed.  /11/
 
 In the present case, the Respondent's main defense is that it had no
 obligation to bargain with the Union about its "decision to assign
 employees to work on Memorial Day unlocking in the morning and locking
 in the afternoon" because Section 7106(a) reserves to agency management
 the right to assign employees in the agency and to assign work.
 
    As noted in the Bureau of Public Debt case, the right to assign work
 to employees is composed of two discretionary elements:  (1) the
 particular duties and work to be assigned, and (2) the particular
 employees to whom it will be assigned.  From the foregoing, it follows
 that an agency also has the right not to assign particular duties or, if
 you will, to make a change in the duties which have been assigned as a
 matter of practice over a period of years.  That's what this case is
 really all about.  I conclude that Respondent had a reserved management
 right, ab initio, to decide whether on Federal holidays certain duties
 had to be performed at plants and distilleries that remained in
 operation on those holidays.  Respondent had a right to determine what
 duties had to be performed, to select the employees to perform those
 duties, and to determine the number of hours required to be spent at the
 plant or distillery by said employees.  Similarly, I conclude Respondent
 had a right to change the duties assigned.  Here, the duty of locking
 and unlocking has not been changed;  that is still required.  What has
 been changed is the requirement that an employee remain at the plant or
 distillery during the entire shift performing a few minor duties as
 assigned or simply sitting around reading newspapers in the absence of
 any assigned duties.  Because of the passage of Public Law No. 96-39,
 the agency now has discretion to determine its true needs in terms of
 the degree of supervision required at these plants and distilleries.
 The agency exercised this discretion and concluded that the time to be
 spent by an employee at these plants on Federal holidays would be
 reduced to the minimum amount of time actually required to perform the
 unlocking and locking function.  /12/ It is my conclusion that
 Respondent had no obligation to bargain about this decision and,
 therefore, did not violate Section 7116(a)(5) when it refused to bargain
 about its decision.  /13/
 
    The General Counsel argues that this is simply a case of bargaining
 about "work schedules" or a "method of scheduling work on holidays." I
 disagree.  The term "work schedule" and the cases cited involve hours of
 work during which assigned work will be performed and the Authority has
 held that hours of work or work schedules are negotiable.  But the
 present case involves an underlying determination, which only can be
 decided by management, as to whether particular work needs to be
 performed in the first instance.  Thus, I view this as an "assignment of
 work" case, and not as "scheduling of hours" case.  Indeed, in the
 present case no change was made in the reporting time in the morning or
 the quitting time at the end of the day, both of which times appear to
 be dictated by the distillery's hours of operations.  Rather, what
 Respondent did was to decide that there was no work to be assigned in
 between the opening and securing of the locks, and no need to pay an
 employee for performing no work.  /14/ The Federal Labor Relations
 Council, predecessor to the Authority, has held in a case arising under
 the Executive Order that an agency is not required to bargain on whether
 or not work on overtime (as well as on regular time) is needed, or on
 the nature of the work to be performed, or the tasks to be assigned.
 /15/ The Council's language is applicable herein since this case
 essentially involves a determination by management as to whether it
 needs an employee to be present at a distillery on a holiday and, if so,
 whether that employee should be assigned work to perform while he is
 there.  Accordingly, for these additional reasons, I reject the General
 Counsel's position.
 
    C. Respondent's Obligation to Notify the Union and Negotiate
 Concerning the Impact and Implementation of its Decision to Change a
 Work Assignment
 
    Notwithstanding my finding and conclusion that Respondent had no
 obligation to negotiate its decision to change a work assignment, a
 different question is presented with respect to whether the Respondent
 nevertheless had an obligation to notify the Union of its decision and
 bargain upon request concerning the impact and implementation of the
 decision.
 
    My understanding of the case law is that an agency acts at its peril
 when it decides to institute a change in employees' conditions of
 employment without first providing the collective bargaining
 representative with adequate notice of the proposed change, so as to
 afford the Union with a reasonable opportunity to submit a request to
 bargain.  /16/ The reason an agency acts at its peril is that its
 obligation to notify depends upon whether it has an obligation to
 negotiate, which in turn depends upon whether there is a reasonable
 likelihood that the change would result in a substantial impact on
 employees.  In my view, the General Counsel has the burden of showing
 substantial impact in order to trigger an agency's obligation to
 negotiate Section 7106(b)(2) "procedures" and Section 7106(b)(3)
 "impact." /17/ Absent such showing, an agency has no obligation to
 negotiate changes which do not have a substantial impact on employees'
 conditions of employment.
 
    Applying the above rationale to the facts of this case, I find first
 of all that Respondent's change of work assignments had an immediate
 impact of reducing the holiday wages previously earned in the past and
 requiring employees to make two trips to employers' distillery on
 holidays.  As a result, the desirability of working on holidays was
 substantially diminished because an employee would now earn
 approximately fifty percent less wages.  Whereas in the past an employee
 might elect to forego an opportunity to spend a holiday with family and
 friends because of the monetary attraction to double pay, the change in
 job requirements removed this incentive.  Indeed, the facts of this case
 demonstrate this clearly since one employee declined to volunteer when
 he learned of the change in assignment.  /18/ Further, the Respondent's
 supervisor also foresaw that this change would decrease the number of
 volunteers and perhaps require a new method of selection as evidenced by
 the fact that he, in discussion directly with employees, brought up the
 subject of possibly having to adopt a new selection procedure in the
 future.
 
    I find and conclude the Respondent's change in work assignments had a
 substantial impact adversely affecting employees and that, accordingly,
 Respondent had an obligation to bargain about its impact and
 implementation as well as to provide the Union with adequate notice
 prior to the change.  Not only did Respondent fail to fulfill these
 obligations but when the Union did request to bargain, orally and in
 writing, the request was refused.  By the foregoing conduct, the
 Respondent violated Section 7116(a)(1) and (5).  /19/
 
    II.  Respondent's Conduct in Dealing Directly with Employees
 
    It is clear from the credited testimony that Respondent's agents
 initiated discussions with employees concerning the possible need to
 formulate a new selection procedure for holiday work now that the
 changed work assignment resulted in less pay.  Respondent's agents
 correctly anticipated that the new work assignment would present
 difficulties in obtaining holiday workers on a strictly voluntary basis,
 as in the past.  But the case law is clear that when management is
 considering a change in the existing procedures for selection of
 employees, the proper party to consult is the exclusive bargaining
 representative.  It is the Union's function to represent employees in
 dealings with management.  For this reason it is unlawful for
 Respondent, through its supervisors, to deal directly with employees
 because by so doing Respondent bypasses the Union.  The act of bypassing
 the Union demonstrates to employees that the Respondent feels free to
 ignore the Union and this of course diminishes and disparages the
 Union's true representational role as the employees' bargaining agent.
 
    Respondent's defense, which I reject, is that the subject
 conversations were merely caused, passing remarks, which were mere
 statements of fact or opinion.  But this defense is based upon crediting
 Respondent's witnesses and discrediting the General Counsel's witnesses.
  As noted above, I have credited the General Counsel's witnesses in all
 respects.  This might be a different case factually if all that were
 present were statements to the effect that "it looks like we're going to
 have a problem and maybe we'll need to formulate a new selection
 system"-- and no more than that.  Here, however, there is evidence that
 Respondent actually mentioned some possible alternative selection
 procedures and asked the employees to think about them and see if they
 could come up with their own ideas.  Even stronger evidence of bypassing
 is Beauchamp's statements "How do you guys want to handle this?  It's
 whatever you decide." In my view, this direct dealing with employees and
 the solicitation of their views on conditions of employment constitutes
 a classic bypassing violation.  Accordingly, I find that Respondent
 violated both Section 7116(a)(1) and Section 7116(a)(5) by the conduct
 described above.  /20/
 
    E.  Respondent's Additional Defense
 
    At the hearing I rejected evidence concerning an alleged settlement
 which Respondent believes should preclude the Union from litigating this
 case and which it argues is a waiver of the right to negotiate "about
 any change . . . regarding implementation of the Trade Agreement Act . .
 . ." On September 24, 1980 the Union withdrew a charge in Case No.
 3-CA-838 filed in a different Regional office than is involved herein.
 Subsequent thereto on October 1, 1980, the Union and Respondent entered
 into a Memorandum of Understanding in "full and complete settlement and
 satisfaction of any and all causes of action, damages, claims and
 demands related to implementation of the Act." The Memorandum did not
 specifically refer to Case No. 5-CA-592, the present case, which was
 pending in Region 5 and in which a Complaint and Notice of Hearing had
 already issued on September 23.  The Authority's Rules and Regulations
 clearly require a Regional Director's participation in the withdrawal
 and settlement of a case.  Withdrawal of a charge requires the
 Director's approval and only the Director can withdraw a complaint.
 Here, the Director was not a party to the settlement and has not
 withdrawn the complaint.  Accordingly, I must reject Respondent's
 contention that this matter has been settled and is properly before me.
 /21/
 
    F. Remedy
 
    Having concluded that Respondent had no obligation to bargain about
 its decision to change its holiday work assignment, I find that a status
 quo ante remedy is inappropriate.  However, I shall recommend that
 Respondent negotiate, upon request, concerning the impact and
 implementation of its decision.
 
                                   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) Instituting a change in the assignment of work on holidays
       without first notifying National Treasury Employees Union and its
       Chapter 88, and affording it the opportunity to meet and
       negotiate, to the extent consonant with law and regulations,
       concerning the impact and implementation of such change.
 
          (b) Refusing to bargain with National Treasury Employees Union
       and its Chapter 88 concerning the impact and implementation of any
       change in the assignment of work on holidays.
 
          (c) Dealing directly with bargaining unit employees represented
       by National Treasury Employees Union and its Chapter 88 with
       respect to personnel policies and practices or other matters
       affecting the working conditions of employees, particularly
       including the soliciting of suggestions concerning the procedures
       to be used in selecting employees for work on holidays.
 
          (d) 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 and its
       Chapter 88 of any change in the assignment of work on holidays and
       afford it the opportunity to meet and negotiate, to the extent
       consonant with law and regulations, concerning the impact and
       implementation of such change.
 
          (b) Bargain, upon request, with the National Treasury Employees
       Union and its Chapter 88, to the extent consonant with law and
       regulations, concerning the impact and implementation of any
       change in the assignment of work on holidays, including the
       procedures to be used in selecting employees for work on holidays.
 
          (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 therewith.
 
                                       FRANCIS E. DOWD
                                       Administrative Law Judge
 
    Dated:  April 20, 1982
    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
 TITLE 5
 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS WE
 HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT institute a change in the assignment of work on holidays
 without notifying the exclusive bargaining representative, the National
 Treasury Employees Union and National Treasury Employees Union, Chapter
 88, and affording such representative the opportunity to meet and
 negotiate to the extent consonant with the law and regulations,
 concerning the impact and implementation of such change.
 
    WE WILL notify the National Treasury Employees Union and National
 Treasury Employees Union, Chapter 88, of any change in the assignment of
 holiday work and, upon request, meet and negotiate concerning the impact
 and implementation of such change.
 
    WE WILL NOT deal directly with bargaining unit employees represented
 by the National Treasury Employees Union and National Treasury Employees
 Union, Chapter 88, with respect to personnel policies and practices or
 other matters affecting the working conditions of employees,
 particularly including the soliciting of suggestions concerning the
 procedures to be used in selecting employees for work and holidays.
 
    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.
                                       (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 questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Region V, Federal Labor Relations Authority, whose
 address is:  175 W. Jackson Blvd., Suite A-1359, Chicago, IL 60604;
 telephone No. (312) 886-3468.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Thus, the Authority rejects the Judge's discussion herein with
 regard to a "substantial" impact test and burden of proof pertaining
 thereto contained on page 10 of his Decision.
 
 
    /2/ Apparently, it was not always easy to find other duties to assign
 on a holiday, so it was not uncommon for the inspector to have no duties
 other than removing and securing the locks.
 
 
    /3/ The opportunity to earn an additional full day's pay was a
 sufficient inducement to obtain the requisite number of inspectors
 needed.
 
 
    /4/ Respondent's decision to pay for a total of four hours work is
 based upon 5 C.F.R. 550.131 which provides that "an employee who is
 assigned to duty on a holiday is entitled to pay for at least two hours
 of holiday work." Thus, if one employee opened the locks in the morning
 and a different employee was assigned to secure the locks at the end of
 the shift, each employee would be entitled to a minimum of two hours'
 pay.
 
 
    /5/ National Treasury Employee Union and Department of Treasury,
 Bureau of the Public Debt, 3 FLRA No. 119 (1980), 3 FLRA 768.
 
 
    /6/ See Webster's Third New International Dictionary (Unabridged
 1976)).
 
 
    /7/ American Federation of Government Employees, AFL-CIO and Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
 No. 77 (1980), at 18 and 28 of the decision.
 
 
    /8/ American Federation of Government Employees, AFL-CIO, Local 1999
 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New
 Jersey, 2 FLRA No. 16 (1979) at 7-9 of decision.
 
 
    /9/ National Labor Relations Board Union, Local 19 and National Labor
 Relations Board, Region 19, 2 FLRA No. 98 (1980).
 
 
    /10/ Id.
 
 
    /11/ International Association of Fire Fighters, Local F-61 and
 Philadelphia Naval Shipyard, 3 FLRA No. 66 (1980) at 1-4 of decision.
 
 
    /12/ The obvious purpose of the change was to save money by reducing
 the hours worked.  While this is a laudable objective to be sought by a
 government agency, the Authority (and its predecessor, the Federal Labor
 Relations Council) has concluded that cost is only one factor to be
 considered and weighed against other factors.  American Federation of
 Government Employees, AFL-CIO, 2 FLRA No. 77, 2 FLRA 603 at 608.
 
 
    /13/ In negotiability cases, the Authority has found that union
 proposals which would restrict management's right to assign work are not
 within the duty to bargain.  See International Association of Fire
 Fighters, Local F-48, AFL-CIO, 3 FLRA No. 76, 3 FLRA 488;  National
 Federation of Federal Employees, Local 1624, 3 FLRA No. 30, 3 FLRA 141;
 American Federation of Government Employees, Local 1603, 3 FLRA No. 1, 3
 FLRA 3;  International Association of Firefighters, AFL-CIO, CLC, Local
 F-116, 7 FLRA No. 122.
 
 
    /14/ Since management has the right and the discretion to determine
 what work will be assigned and performed by its employees, I do not have
 to address the question of whether the work assigned was essential and
 necessary, or whether it was in the nature of "make work." Moreover,
 since the Union never had the opportunity to submit specific proposals,
 Respondent is merely engaging in speculation when it suggests (on page 8
 of its brief) that the Union is in effect seeking the continuation of an
 alleged "featherbedding" situation which, in the private sector, would
 be a violation of Section 8(b)(6) of the Labor Management Relations Act,
 as amended.
 
 
    /15/ National Treasury Employees Union and Department of the
 Treasury, U.S. Customs Service, Region VII, FLRC No. 76A-28, 5 FLRC 249,
 259-260 (1977).
 
 
    /16/ See my discussion of this subject in U.S. Government Printing
 Office, 3-CA-549 (April 9, 1981), which is pending before the Authority.
 
 
    /17/ The existence of a substantial impact test seems clear and, with
 respect to Section 7106(b)(3), it would seem that substantial impact
 means adverse impact.  While the Authority has not addressed this issue,
 it is my opinion that Section 7106(b)(2) also requires use of a
 substantial impact test.  What is less clear, however, is whether the
 requirement of showing adverse impact is also applicable to Section
 7106(b)(2).  Because of my ultimate conclusions, I do not have to
 resolve this issue in this proceeding.
 
 
    /18/ When Milstead declined, the supervisor telephoned Redeford.  Why
 did he choose to call Redeford?  Was it his turn to be called, was he
 selected at random, or was it favoritism?  Clearly the Union had a
 legitimate concern in the procedures to be followed by the agency in the
 exercise of their management right to select employees.
 
 
    /19/ United States Air Force, Air Force Logistics Command, Aerospace
 Guidance and Metrology Center, Newark, Ohio, 4 FLRA No. 70.
 
 
    /20/ Internal Revenue Service, Washington, D.C., 4 FLRA No. 68
 (1980).  See also Internal Revenue Service, Ogden Service Center, 7
 A/SLMR 1032 (1977) where the Assistant Secretary stated that "the
 gravamen of the violation herein consists of the solicitation of views
 and recommendations from unit employees, selected by the Respondent, on
 matters for which the Complainant under the Order was entitled to be
 dealt with exclusively." See also VA, Veterans Administration, Veterans
 Administration Hospital, Muskogee, Oklahoma and American Federation of
 Government Employees, Local 2250 3 A/SLMR 491 (1973);  Department of the
 Navy, Naval Air Station, Fallon, Nevada 4 A/SLMR 590 (1974).
 
 
    /21/ In so doing, I reach the same conclusio