16:0654(97)CA - Treasury, Customs Service, Region I (Boston, MA) and NTEU -- 1984 FLRAdec CA



[ v16 p654 ]
16:0654(97)CA
The decision of the Authority follows:


 16 FLRA No. 97
 
 DEPARTMENT OF THE TREASURY
 U.S. CUSTOMS SERVICE, REGION I
 (BOSTON, MASSACHUSETTS)
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case Nos. 1-CA-20060
                                                      1-CA-20063
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had not engaged in
 the unfair labor practices alleged in the consolidated complaint and
 recommending that the consolidated complaint be dismissed.  The General
 Counsel filed exceptions limited to the Judge's Decision in Case No.
 1-CA-20063, and the Respondent filed an opposition thereto.
 
    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 dismissing the
 allegations of the consolidated complaint in Case No. 1-CA-20060, noting
 particularly the absence of exceptions, and the Judge's findings,
 conclusions and Recommended Order dismissing the allegations of the
 consolidated complaint in Case No. 1-CA-20063, based upon the particular
 circumstances presented therein.
 
                                   ORDER
 
    IT IS ORDERED that the consolidated complaint in Case Nos. 1-CA-20060
 and 1-CA-20063 be, and it hereby is, dismissed.  
 
 Issued, Washington, D.C., November 30, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF THE TREASURY
    U.S. CUSTOMS SERVICE, REGION I
    (BOSTON, MASSACHUSETTS)
                                Respondent
 
    and
 
    NATIONAL TREASURY EMPLOYEES UNION
                              Charging Party
 
                                       Case Nos. 1-CA-20060
                                                 1-CA-20063
 
    Christopher Doherty, Esq.
    For the Respondent
 
    William Milton,
    For the Charging Party
 
    James R. Collins, 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, herein referred to as the Statute, 92 Stat. 1191, 5
 U.S.C. 7101, et seq.  It was instituted by the Regional Director of the
 First Region of the Federal Labor Relations Authority by the issuance of
 a Complaint and Notice of Hearing dated July 9, 1982, based upon an
 unfair labor practice charged filed on December 2, 1981 in Case No.
 1-CA-20060 and an unfair labor practice charge filed on December 3, 1981
 in Case No. 1-CA-20063.  An Order Consolidating Cases was also issued on
 July 9, 1982.  /1/ The foregoing charges were filed by National Treasury
 Employees Union, herein referred to as NTEU, Union or Charging Party.
 The Respondent in each case is the Department of Treasury, U.S. Customs
 Service, Region I (Boston, Massachusetts).
 
    In Case No. 1-CA-20060 (paragraph 8(a) of the Complaint), Respondent
 is alleged to have violated Section 7116(a)(1) and (5) by the following
 conduct:
 
          (a) On or about September 13, 1981, and on October 11, 18 and
       25, 1981 and other subsequent dates, Respondent unilaterally
       changed existing conditions of employment by consolidating
       waterfront overtime assignments without furnishing the Union with
       notice and/or an opportunity to bargain concerning the impact and
       implementation of said change.  /2/
 
    In Case No. 1-CA-20063 (paragraph 8(c) of the Complaint), Respondent
 is alleged to have violated Section 7116(a)(1) and (5) by the following
 conduct:
 
          (c) On or about November 15, 1981, Respondent unilaterally
       changed existing conditions of employment by consolidating
       waterfront overtime assignments with airport overtime assignments
       without furnishing the Union with notice and/or an opportunity to
       bargain concerning the impact and implementation of said change.
 
    Respondent denies committing any statutory violations and raises a
 number of issues, including inter alia, whether there was a change in
 conditions of employment, whether the alleged change had a substantial
 impact, whether the Union failed to make a timely request to bargain,
 and whether, in fact, Respondent refused to bargain after receipt of the
 Union's "untimely" request.
 
    A hearing was held in Boston, Massachusetts, at which time the
 parties were represented by counsel and afforded full opportunity to
 adduce evidence, to call, examine and cross-examine witnesses, and to
 argue orally.  Briefs filed by the General Counsel and Respondent have
 been duly considered.
 
    Upon consideration of the entire record in this case, /3/ 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 and Conclusions of Law
 
    1.  The National Treasury Employees Union is a labor organization
 within the meaning of Section 7103(a)(4) of the Statute and, at all
 times material herein, has been the exclusive bargaining representative
 of employees in the following unit:
 
          All non-professional employees assigned to the Office of
       Regulations and Rulings and to the Headquarters Office, and to
       Regions, I, II, III, IV, V, VI, VII, VIII and IX of the U.S.
       Customs Service, excluding all professional employees;  all
       employees assigned to the Office of Investigations, the Office of
       Internal Affairs, and the Office of the Chief Counsel;  management
       officials;  employees engaged in Federal Personnel work in other
       than a purely clerical capacity;  confidential employees;  guards;
        and supervisors as defined in the Act.
 
    2.  The Respondent is an agency within the meaning of Section
 7103(a)(3) of the Statute and, at all times material herein, the
 following named persons occupied positions set opposite their respective
 names, and have been and are now supervisors or agents of the Respondent
 in Boston, Massachusetts.
 
    Thomas Gleason, Director, Labor Relations and Safety Officer
 
    Ralph Batchelder, Director, Inspection and Control Division
 
    Donald Tilton, Supervisor, Inspection and Control Division
 
    3.  The Boston District, Region I, U.S. Customs Service consists of
 the Port of Boston, Fall River, Springfield, Worcester, Gloucester and
 Methuen, Massachusetts.  This proceeding involves the Port of Boston
 which covers Logan Airport, the Boston-area waterfront and trucking
 terminals within the Boston area.  For purposes of assignment of Customs
 inspectors, the Port of Boston has two different divisions:  the seaport
 division and the airport division.  The seaport division consists of
 approximately 16 different work locations to which Customs inspectors
 can be assigned to perform a variety of inspectional functions.  The
 seaport division consists of two subdivisions:  the Moran terminal in
 Charlestown and the Castle Island terminal in South Boston.  Generally,
 Moran covers vessels and trucking terminals north of downtown Boston and
 Castle Island covers those south of downtown Boston.  Moran and Castle
 Island are approximately six miles apart.  Nearly all of the vessels
 handled at the seaport division are freight vessels rather than
 passenger vessels.
 
          Case No. 1-CA-20060:  Alleged Consolidation of Overtime
 
                Work in the Seaport Division
 
    4.  Approximately 50 Customs inspectors are assigned to the Port of
 Boston.  They rotate their positions within the Port of Boston every 2
 weeks.  Their regular duty hours are 8:00 a.m. to 5:00 p.m. for which
 they receive an hourly wage.  Overtime is paid for any hours worked
 outside of these regular duty hours.  Half of all overtime work occurs
 on Sundays.  If assigned to perform overtime work, a Customs inspector
 is guaranteed to be paid for 8 hours of overtime (even if he or she
 actually works only one hour) at a double time rate.  Thus, an overtime
 assignment results in 16 hours pay or approximately $160.
 
    5.  This overtime to which a Customs inspector is entitled is
 referred to as "1911 overtime," referring to the Act of 1911 which
 established it (see 19 U.S.C. 1451), and is payable both for overtime
 worked during the week and that worked on Sundays and holidays.  The
 Government itself does not pay the 1911 overtime.  Rather, it is paid by
 the carrier which requests the services of the Customs inspector outside
 of the normal hours of work.  Therefore, this overtime is also commonly
 referred to as "reimbursable overtime." Thus, if one inspector works for
 only one carrier during his overtime tour, that carrier must then pay
 the entire amount of overtime earned by the employee during that shift.
 However, if that inspector, during a single overtime tour, works for two
 different carriers, he would then earn the same amount of overtime but
 the two carriers would split the overtime costs between them, resulting
 in a 50 percent savings to each.  In order to cut down these expenses
 for carriers who request inspectional services outside of the normal
 business hours, the Customs Service has established a strong policy of
 prorating assignments among carriers whenever possible and, I find that
 Respondent's practice has been consistent with such policy.  The
 foregoing is clear from my review of Respondent Exhibits 2 and 5 and the
 testimony, which I credit, of Supervisory Customs Inspector Donald
 Tilton the management official responsible for the assignment of
 reimbursable overtime on the Boston seaport since February 1980.
 
    6.  In determining how to structure reimbursable overtime assignments
 Tilton has always followed the policies established by the Customs
 Service Headquarters of prorating (or consolidating) these assignments
 whenever possible.  Prior to establishing the overtime assignments at
 the seaport, Tilton reviews the requests for such services that had been
 received by his office from the various carriers and shipping agents.
 He considers the estimated time of arrival of the vessel for which
 services have been requested, the nature of the work expected to be
 performed on the vessel, the carrier's estimate of the length of time
 that work should take and the location of the vessel.  If all these
 considerations result in a determination by Tilton that one inspector
 could cover more than one vessel in the course of an 8 hour tour, he
 consolidates two or more seaport assignments and assigns them to one
 inspector.  These same factors are considered by Tilton when structuring
 reimbursable overtime assignments for weeknights as well as Sundays and
 holidays.  However, in determining whether to consolidate assignments,
 Tilton would not assign one inspector to cover two vessels if there were
 any possibility that the first assignment would result in the inspector
 not arriving at the second assignment on time.  Although the carriers in
 fact save money by having overtime assignments consolidated, they incur
 significantly greater costs if the unloading of the vessel is delayed
 awaiting the arrival of the inspector who may have been delayed by a
 prior assignment.  Thus, to accommodate this economic reality, Tilton
 will consolidate assignments only if it is almost certain to not cause
 any delay.  Even then there are times when he has consolidated
 assignments which later had to be divided between two inspectors because
 the first vessel was later than expected or the first assignments ran
 longer than expected.  Tilton's practice has always been (since February
 1980, when he became responsible for these assignments) to consolidate
 assignments when all of the above-referenced factors would permit him to
 do so.  However, the opportunities for such consolidations are few and
 without any pattern.  /4/
 
    7.  The General Counsel conceded that the Respondent did consolidate
 waterfront overtime assignments prior to September 13, 1981, but argued
 that these instances were only when the same vessel was at two different
 locations in the course of the tour of duty or when two different
 vessels were at the same location.  /5/ I find that this has never been
 the policy of the Boston District regarding consolidated assignments and
 that Tilton has always attempted to consolidate seaport assignments when
 time, location, and other circumstances permit.  This included
 assignments involving two different vessels at two different locations.
 In fact, prior to September 13, 1981 (the earliest date charged by the
 General Counsel in its Complaint), the Agency had consolidated
 assignments which involved two different vessels at two different
 locations:  On April 23, 1981, Inspector Bell performed overtime
 services for the Australian Envoy located at the Moran Pier, and for the
 Gulf Trader, located at the American Sugar House, two different
 locations.  On May 18, 1981, Customs Inspector McGrath performed
 overtime services for the vessels Berglind and Godafoss, located at the
 Cold Water Fish Dock in Everett, and for the vessel American Archer,
 located at the Moran Piers in Charleston, two different locations.  On
 September 1, 1981, Inspector O'Hara performed overtime services for the
 vessel Godafoss, located at the Cold Water Fish Pier in Everett, and for
 the vessel Broland, located at Exxon Oil in Everett, again two different
 locations.  Each of these assignments were consolidated and their costs
 prorated among the carriers involved, in a manner in which the General
 Counsel contends did not occur until after September 13, 1981.
 
    8.  Tilton established the schedule for overtime assignments by 4:00
 p.m. on weeknights and by 5:00 p.m. on Saturdays, for Sunday
 assignments.  It was at this point that Tilton determined whether the
 assignments could be consolidated by assigning one man to two requests
 for services.  At these times the inspectors who were scheduled to work
 were notified by phone and told to which vessels they were assigned and
 what time the vessels were scheduled to arrive.
 
    a.  After the schedule had been established by Tilton and the
 individual inspectors notified of their assignments, several
 circumstances could change which would alter the time and duration of
 the assignments from how they were originally assigned.  The arrival
 time of the vessel could change or the estimate of how long the
 assignment would take could be either too long or too short (e.g., there
 are circumstances in which a ship, intending to unload cargo, is unable
 to do so due to weather conditions).  In addition there are occasions
 when the Customs Service receives requests for services from shipping
 agents after the schedule has already been established (e.g., after 5:00
 p.m. on Saturday for service on Sunday).  Such circumstances require
 adjustments in the overtime schedule after it has been established and
 the inspectors notified.
 
    b.  In order to avoid administrative complications and the "mass
 confusion" of attempting to re-contact all the inspectors involved, the
 Customs Service does not make major revisions in its schedule to
 accommodate these "post-scheduled" changes.  The Agency's practice has
 always been not to attempt to consolidate assignments after the schedule
 has been established even if these "post-scheduled" changes would have
 permitted it to do so.  Rather, the supervisor simply contacts the
 individual inspectors affected by the change, or calls in the next
 inspector on the overtime list.
 
    c.  The necessity to alter the schedule after it has been established
 and the inspectors notified is the rule rather than the exception, but I
 am only referring to the initial assignment.  The arrival time of
 vessels are changed after the establishment of the overtime schedule
 approximately 50 percent of the time.  /6/ The estimates of the amount
 of time an assignment will take are inaccurate approximately 90 percent
 of the time.
 
    d.  Customs Form 6081, Register of Reimbursement Assignments, the
 document used extensively by the General Counsel in its attempt to
 establish a past practice, records only the hours of reimbursable
 overtime actually worked by the Customs inspectors in the Boston
 seaport.  These records do not indicate where any vessel was located
 during any given assignment.  These records also do not show how the
 assignments on any given day were originally scheduled by Tilton;  they
 do not indicate what assignments had been changed due to the late
 arrival of a vessel;  nor do they show when the assignment was requested
 by the carrier after the schedule had been established.  As a result,
 the records relied upon by the General Counsel, to establish a past
 practice different from that asserted by Respondent, are of limited
 value and not very persuasive to the undersigned.  It is for this reason
 that the more significant evidence is the testimony of witnesses.
 
          Case No. 1-CA-20063:  Alleged Consolidation of Overtime
 
                Work Between the Seaport Division and the Airport
 
                Division
 
    9.  In October 1981, David Emmons, Labor Relations Specialist, United
 States Customs Service, had a discussion with John Linde, District
 Director of Customs, Boston District regarding the consolidation of
 Sunday overtime assignments between the Boston seaport and Logan
 Airport.  Linde explained to Emmons at that time that he was concerned
 that inspectors who were working Sunday overtime assignments at the
 Boston seaport were going home at the completion of their seaport
 assignments even when there might be a need for the inspectors at Logan
 Airport.  Linde explained to Emmons at that time that he was concerned
 that inspectors who were working Sunday overtime assignments at the
 Boston seaport were going home at the completion of their seaport
 assignments even when there might be a need for the inspectors at Logan
 Airport during the remaining hours of the inspectors' tours.  Linde felt
 that this practice was contrary to the Customs Service policy as
 established by a Customs Service Headquarters Manual Supplement dated
 June 12, 1979 (Resp. Exh. No. 5).  A pertinent paragraph in that
 Supplement is as follows:
 
          (5) Inspectors, or other employees assigned to inspectional
       overtime on Sundays or holidays, will hold themselves available
       for the full eight hours (or nine, when a one hour meal break is
       applicable) of the assigned tour, and shall be "available" in the
       sense of being readily reached and in a location and state of
       readiness enabling themselves to report for duty upon short
       notice.  The time allowed for travel in reporting back to duty
       will be determined by local and district management
 
 The foregoing regulation does not impose any requirement for an
 inspector, upon completion of his or her assignment, to notify anyone;
 it only requires them to be available in the sense of being readily
 reached, and clearly did not preclude them from going home.
 
    a.  To rectify this situation Mr. Linde has decided to institute a
 policy which would require inspectors, upon completion of their Sunday
 seaport assignments, to call the Supervisory Inspector at Logan Airport
 to see if there was a need for the inspector's services at the Airport.
 Prior to instituting this policy of calling the Airport Supervisor,
 District Director Linde was notifying Emmons so that appropriate steps
 could be taken to properly notify the Union about the intended change in
 practice.  Subsequent to his conversation, Linde formally requested the
 Customs Labor Relations Office to notify the Union of the change in
 practice (Resp. Exh. No. 6).  Emmons drafted the following letter to
 Richard Stevens, Secretary-Treasurer of Chapter 133 of NTEU.
 
          This is to notify you of our intention to require, in
       accordance with the provisions of Manual Supplement 2132-05 of
       June 12, 1979, that employees assigned to inspectional overtime on
       Sundays or holidays will hold themselves available for the full
       eight hours.
 
          Accordingly, when an inspector completes an overtime assignment
       prior to the end of the 8 hour time-frame in the Port of Boston on
       a Sunday or holiday, he is still liable for additional
       assignments, either at the Seaport or Airport.  Therefore, upon
       completion of an assignment within the port, each inspector will
       call the Airport Supervisor to indicate his availability.
 
          The above will be effective on Sunday, November 15, 1981.
 
    b.  As noted previously (para. 8.b. supra), the Agency's practice has
 always been not to attempt to consolidate assignments after the schedule
 has been established even if these "post-scheduled" changes would have
 permitted it to do so (see Resp. brief at p. 7).  Therefore,
 notwithstanding the regulations requiring inspectors to be "available"
 for additional assignments, the practice generally was not to make such
 assignments and Linde correctly concluded inspectors were going home.
 Therefore, Respondent's November 3 notice essentially is intended to
 change a past practice whereby inspectors performing overtime work in
 the seaport division could go home upon completion of their assignment
 to a new practice whereby they were more vulnerable to an additional
 assignment during their tour of duty, either in the seaport division or
 at the airport.  The new requirement of calling the airport supervisor
 was merely the procedure whereby the individual inspector's availability
 (or vulnerability) became known to the supervisor.  The purpose of the
 change was to save money for the carriers by utilizing inspectors who
 already were in an overtime status and would continue to be paid whether
 or not they performed any additional duties.
 
    10.  This letter Jt. Exh. No. 3, was sent to Stevens on November 3,
 1981.  Under normal circumstances the notice would have been sent to
 Stephen Emmanuel, the NTEU local chapter President, but Emmons was aware
 that Emmanuel, who had recently suffered a heart attack, was
 incapacitated.  There is conflicting testimony as to the date this
 letter was received by the Union.  Stevens said he received it around
 November 7;  William Milton, the NTEU National Field Representative,
 testified that Stevens called him on November 6, and indicated that he
 had just received the letter that day.  However, in both the Charge
 dated November 30, 1981, filed with the Federal Labor Relations
 Authority in connection with this action (GC Exh. No. 1(e)) and in a
 letter to the Federal Mediation and Conciliation Service dated December
 4, 1981 (Jt. Exh. No. 7), Milton stated that the Union had received
 notice of this proposed change on November 5, 1981.  Since this earlier
 correspondence was closer in proximity to the event in question, and not
 being persuaded by the testimony of either Stevens or Milton, I find
 that a responsible Union official received notice of the intended change
 on November 5, 1981.
 
    11.  Article 37 of the parties' collective bargaining agreement
 states in pertinent part, as follows:
 
          Section 4.  If the union wishes to negotiate concerning the
       implementation or impact on employees of the proposed change(s),
       the union will submit written proposals to the employer within a
       reasonable period after notification of the proposed change(s).
       The Union agrees that any proposals submitted in the context of
       impact bargaining will be related to the proposed change(s) and
       will not deal with extraneous matters.  Negotiations will normally
       begin within seven (7) calendar days after receipt by the employer
       of the union's proposals.
 
          Section 5.A.  Reasonable extensions of time under this article
       will be made for good cause shown such as delays in receipt of
       necessary and relevant information as defined in Section 8(4),
       provided that the total time involved does not cause an
       unreasonable delay or impede the employer in the exercise of its
       management rights.
 
    12.  The record does not indicate that Stevens, Milton, or any other
 Union official attempted to personally contact or telephone any
 Respondent representative to request bargaining about the change, to
 request additional information, or to protest the change.  In
 particular, the Union did not promptly communicate with Respondent and
 request additional time to prepare its bargaining proposals, to postpone
 the effective date of the changes, or to at least protest that the time
 interval between November 5 and November 15 was inadequate to prepare
 bargaining proposals and/or complete bargaining on the change before the
 November 15 effective date.
 
    13.  One week later on Thursday, November 12, a letter containing 14
 bargaining proposals prepared by Milton was received at the Post Office
 in Washington, D.C. at 5:00 p.m. as indicated by the Express Mail
 receipt.  The following morning, it was received in Boston between 10:30
 a.m. and 11:00 a.m. by David Emmons, the management official responsible
 for negotiations regarding the proposed changes.  Of course, since this
 was Friday, November 13 it was the last workday before the effective
 date of the change on Sunday, November 15.  /7/ Absent a change of mind
 by Respondent, it was also the last day upon which to notify its
 employees of the change to become effective Sunday, November 15.
 
    14.  Respondent did not respond on that date to the Union's
 bargaining request and obviously chose to treat it as untimely, as
 argued herein.  Accordingly, on the same day that Respondent received
 the Union's bargaining request, Respondent officially notified the
 Boston inspectors of the new procedure to call the Airport Supervisor
 after completion of their seaport assignments to indicate their
 availability.
 
    15.  Thereafter, on November 20, 1981, Emmons had a conversation with
 Milton regarding several matters pertaining to labor relations including
 the seaport/airport overtime issue in the Port of Boston.  During this
 conversation (which initially involved other matters), Emmons expressed
 his willingness to negotiate the proposals submitted by Milton (TR
 238-239, Resp. Exh. No. 7) but refused to return to the status quo.
 However, Milton never took Emmons up on this offer and never entered
 into negotiations with Emmons on this issue.  /8/
 
    16.  The Union's bargaining proposals are set forth in Joint Exhibit
 No. 5 and will be referred to later.
 
                     Discussion and Conclusions of Law
 
                            Case No. 1-CA-20060
 
    It is well established that an agency, prior to exercising a reserved
 management right, must provide the union with adequate notice of its
 decision so that the union will have a meaningful opportunity to bargain
 about the impact and implementation of the decision.  /9/ In order for
 the above principle to apply, it must be shown that the agency has an
 obligation to bargain in the first instance.  As applied to this case,
 it is incumbent upon the General Counsel to establish by a preponderance
 of the evidence that the agency in fact changed a condition of
 employment established by past practice.  If the activity complained of
 is simply a continuation of an ongoing practice then there is no
 obligation to notify the union or negotiate in connection therewith.
 /10/
 
    In its brief, Respondent summarizes the pertinent evidence on this
 issue and persuasively argues that its past practice always has been to
 consolidate seaport overtime assignments whenever possible and, based
 upon Tilton's credible testimony, I agree.  Further, Respondent argues
 that the General Counsel has failed to establish the existence of a
 different past practice, namely, that overtime assignments were only
 consolidated where either the same vessel or same location was involved.
  In the interest of brevity, I shall incorporate by reference
 Respondent's entire argument on this issue as set forth in its brief at
 page 12 through 22, inclusive.  Respondent points out, inter alia, the
 following:  (1) The testimony of Stevens and Pacewicz cannot be relied
 upon;  (2) Customs Form 6001 are unreliable since they do not show
 location of vessels, do not show whether the actual arrival time of
 vessels was the same as originally anticipated at the date of
 assignment, do not show whether the actual hours worked is the same as
 originally anticipated;  and do not show last-minute requests by
 shipping agents for services of inspectors after overtime assignments
 have already been made;  and (3) the Respondent's evidence that 3
 weeknight overtime assignments involving at least two vessels at two
 different locations were consolidated, in a manner which the General
 Counsel alleged did not exist prior to September 13, 1981.
 
    Accordingly, I conclude that the credible evidence establishes that
 the Respondent did not change its method of assigning reimbursable
 overtime on or after September 13, 1981 as alleged in the Complaint.
 Therefore, I recommend that Case No. 1-CA-20060 be dismissed.
 
                            Case No. 1-CA-20063
 
    The Respondent, raises a number of issues which will be discussed
 seriatim.
 
    A. Change in Past Practice
 
    As previously found (supra, para. 9.b), the past practice was for
 inspectors to complete their seaport overtime assignments and then
 return home, unless already having been given a second assignment.
 Respondent offered no evidence to show that it ever implemented its own
 regulations and telephoned inspectors at their home and actually gave
 additional assignments to inspectors who were technically "available."
 As a practical matter, when a customs inspector completed his or her
 overtime assignment he or she was through for the day.  It is for this
 reason that the Respondent's agent, Linde, realistically concluded that
 the most practical way to identify possible recipients of an additional
 assignment was to require inspectors to call the Airport Supervisor
 before they went home.  Thus, the November 3 notice was, in fact, a
 notification concerning a real change in working conditions, rather than
 a reaffirmation of existing policy and practice.  The new procedure
 required inspectors to do something which previously was not required of
 them.  Therefore, I reject Respondent's contention that there was no
 change in conditions of employment.
 
    B.  Impact of the Change
 
    Under the existing regulations, inspectors had to be "reachable" for
 an additional overtime assignment and therefore it may be argued that
 they always were vulnerable to performing more work and depriving
 another inspector of the opportunity to receive an overtime assignment.
 In practice, however, the existing regulation was not enforced and when
 an inspector completed his original assignment, he was through for the
 day.  Thus, the new procedure was an effort to revive and strengthen the
 regulation requiring inspectors to be "reachable."
 
    Respondent attempts to minimize the new procedure by saying it merely
 required a telephone call.  Respondent knows full well the purpose of
 the telephone call was to make the inspector vulnerable to an additional
 assignment during his or her tour of duty.  The whole purpose of this
 new procedure was to save money for the carriers.  From this it follows
 that inspectors would ultimately receive less money.  However salutory
 the purpose of Respondent's change in existing practice may be for the
 carriers, the effect for inspectors was likely to be more work and less
 money.  As a result of this change, and as correctly pointed out by
 Pacewicz, overtime work itself lost some of its attractiveness, at least
 for those inspectors who might wish to pass up an opportunity to earn 16
 hours' pay for a tour of duty normally less than a full 8 hours' work.
 Because the Respondent's change had the foreseeable impact of more work
 and less money, I find the change was substantial and that Respondent
 had an obligation to provide the Union with adequate notice of the
 proposed change.  /11/
 
    C. Adequacy of Respondent's Notice
 
    The Authority's law in this area is being made on a case-to-case
 basis and whether or not an agency's notice is reasonable and adequate
 seems to depend upon the facts of each case.  The Authority had held
 that as few as 4 days is adequate in which to request bargaining and to
 have "an opportunity to bargain concerning the impact and implementation
 of the decision prior to its effectuation." /12/ Thus, in Fort Sam
 Houston, the Authority found that the Union was notified on Thursday,
 July 26, 1979 that the work performed by bus drivers had been contracted
 out, and that a meeting was scheduled for Monday, July 30 to present RIF
 notices to the 12 employees affected.  The Union did not attend the
 meeting and did not request bargaining until a few days after the
 meeting.  The Authority held that the Union was given adequate notice of
 the decision to conduct a RIF and an opportunity to bargain concerning
 impact and implementation prior to its effectuation.
 
    By way of comparison, the Authority held in another case, /13/ that
 notice from Tuesday, November 25 to Monday, December 1 (including a
 holiday and a weekend) was inadequate notice, especially noting the
 Union's prompt request for bargaining on November 26 and the agency's
 decision to postpone implementation of its decision for only 2 days
 where no overriding exigency existed which required such hasty
 implementation.  One critical difference between these cases is that in
 Bureau of Government Financial Operations Headquarters, the Union did
 submit a bargaining request as soon as it reasonably could and the
 failure to have time to complete bargaining was solely because the
 agency had no overriding exigency for refusing to delay the date of
 implementation.  However, in Fort Sam Houston, the Union failed to
 submit a bargaining request prior to the effective date and failed to
 attend the meeting when the bus drivers were given their RIF notices.
 The Authority apparently concluded that the short time provided by the
 agency was justified in the particular circumstances of that case.
 
    Here, the November 3 notice was received by a responsible Union
 official on Thursday, November 5, announcing an effective date of
 Sunday, November 15.  Contrary to Respondent's contention, I would not
 count November 3 and 4 because the Union had not yet received the
 notice.  I also would not count November 15, the effective date of the
 change.  This leaves a time frame of 10 days (November 5-14, inclusive)
 in which the Union had an opportunity to request bargaining and submit
 proposals.  The issue to be resolved is whether this time frame was
 reasonable in the circumstances of this case.
 
    In my opinion, both Respondent and the Union have conducted
 themselves in a manner resulting in the creation of legal issues for the
 Authority to decide.  It is not the function of the Authority to
 encourage parties to litigate matters best resolved by good faith
 collective bargaining.  The facts of this case show that Respondent's
 agent, Emmons knew on October 19 that notice to the Union was required
 but he delayed until November 3, to issue the notice to the Union.
 Thus, the General Counsel correctly points out that Respondent "could
 have" issued its notice earlier and thus established a longer time
 frame.  Nevertheless, the issue remain whether the time frame eventually
 established was reasonable and adequate, considering the facts of this
 case.
 
    Since the Authority was willing to conclude that 4 days' notice in
 Fort Sam Houston was adequate, I am constrained to conclude that the 10
 days' notice here is also adequate.  This is especially so when one
 observes that the change in Fort Sam Houston was of a more serious
 nature, i.e. a Reduction-in-Force of several employees, in contrast to
 the new procedure here requiring inspectors to place a phone call to the
 Airport supervisor.  If the Union here wanted to bargain about this
 change as quickly as possible, all it had to do was make a phone call on
 the day Stevens received notice on Thursday, or on Friday when Stevens
 informed Milton, or even as late as Monday when Milton received the copy
 of the written notice, (I reject the Union's argument that Milton could
 take no action until he actually read the short, simple and
 uncomplicated notice.) Had Milton called Respondent's representative he
 could have discussed whether there was time to bargain prior to the
 effective date of the change or whether the change could be temporarily
 postponed.
 
    Instead, Milton waited until the last minute in submitting his
 proposals, and as a result Respondent received them on Friday, November
 13, only two days before the effective date.  It is clear from Milton's
 own testimony that he had no reasonable expectation of bargaining prior
 to the effective date.  It is suggested by the Respondent that Milton
 was intentionally (i.e. in bad faith) delaying submission of his request
 hoping that it would cause Respondent to postpone the effective date of
 the new procedure.  Just as the Respondent "could have" provided its
 notice earlier, the Union also "could have" replied sooner.  Thus, this
 is not like the Bureau, case, supra, where the Union had no choice but
 to make a last-minute request.  Here, by not requesting bargaining as
 promptly as possible the Union lulled the agency into believing the
 Union had accepted the new procedure and elected not to bargain.  Here,
 by waiting until the very last working day before the effective date of
 the new procedure, the Union gave the impression, correctly or
 uncorrectly, that its real desire was not to bargain but, rather, to
 delay implementation of the change.
 
    Apparently recognizing that the Union could have made a bargaining
 request earlier than it did, the General Counsel contends in its brief
 that under the collective bargaining statement, a request to bargain in
 itself does not obligate the agency to bargain.  I disagree.  The
 contract contains no clear and unmistakable waiver of the Union's right
 to request bargaining, independent from its submission of written
 proposals.  Indeed, the contract even provides for obtaining reasonable
 extensions of time.  Accordingly, I find this to be an unacceptable
 explanation for the Union's failure to more promptly request bargaining.
  Assuming, arguendo, that it was necessary for the Union to first submit
 written proposals in order to "perfect" its bargaining request, and
 agreeing with the General Counsel that the time frame should allow time
 to prepare such proposals, I would nevertheless conclude that the Union
 here had sufficient time to comply with the contract requirements, given
 the nature of the proposed change and the 10 days provided by
 Respondent.  As pointed out by Respondent, there was no need here for
 extensive analysis of the change prior to formulating its proposals for
 negotiations.  Some of the proposals were not even relevant to the
 change, as required by Article 37, Section 4 of the contract.  I reject
 any contention that the Union required a substantial amount of time to
 prepare proposals.  Thus, while at first glance the Union's request and
 list of proposals may appear to evidence a complex, many-faceted issue,
 a closer analysis of the Union's proposals demonstrates that the Union
 was simply offering a "boiler plate" response to the Respondent's
 intended change, in many instances proposing to negotiate the very
 language that the parties had already agreed to in their National
 Contract.  Moreover, some proposals were unrelated to the issue, as
 pointed out in Respondent's brief (pages 26-28).
 
    Where an agency has notified the union of a forthcoming change, it is
 incumbent upon the union to avail itself of this opportunity and either
 request bargaining or request more time to consider the change.  /14/
 Where the union fails to request bargaining until after the change is
 implemented its request is untimely and there is no unlawful refusal to
 bargain.  /15/ Where the union's request to bargain is submitted prior
 to the change, but at the 11th hour, it has also been held to be
 untimely, /16/ and it is this case law which governs this proceeding.
 
    Having concluded that Respondent gave adequate notice to the Union,
 and that the Union's bargaining request was untimely, I find that
 Respondent's implementation of the new procedure on November 15 was not
 unlawful, and Respondent did not thereby violate Section 7116(a)(5) and
 (1).  Accordingly, I recommend dismissal of Case No. 1-CA-20063.  /17/
 
    The General Counsel also contends that there was "no exigent reason
 why Management had to push ahead with implementation immediately . . .
 ." The General Counsel asserts that Respondent had the burden of
 presenting evidence to establish why it "could not endure a few more
 weeks of a practice it had condoned for 2 years, until impact bargaining
 was completed." I reject this argument and conclude that Respondent's
 "burden" does not arise until after the Union submits a timely
 bargaining request, and then only if the bargaining cannot be completed
 prior to the implementation date.  In such event the agency has to
 either change the date or justify its refusal to do so.  Since it is the
 agency itself which initially established the time frame from November 5
 to November 15, I believe it is not unreasonably to impose upon the
 agency the burden of insuring that bargaining can be completed prior to
 the proposed date of implementation and, if not, it surely must justify
 whether an overriding exigency prevents it from delaying implementation.
  /18/ Here, however, the Respondent was free to proceed with
 implementation because it had already satisfied its obligation to
 provide the Union with reasonable and adequate notice of its change in
 conditions of employment.
 
                                   ORDER
 
    It is hereby ordered that the Complaint in Case Nos. 1-CA-20060 and
 1-CA-20063 be, and it hereby is, dismissed.
 
                                       FRANCIS E. DOWD
                                       Administrative Law Judge
 
    Dated:  June 14, 1983
    Washington, DC
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ At the hearing, the General Counsel moved to sever Case No.
 1-CA-20059 from this proceeding based upon a prehearing settlement.
 Respondent did not object and the motion was granted.  As a result,
 paragraph 8(b) of the Complaint was deleted.
 
 
    /2/ The charge dated November 12, 1981 only mentioned the date of
 October 25, 1981;  the Complaint cited three additional dates.  I
 disagree with the Respondent's contention that the Complaint raises
 issues not previously raised by the charge.  The issues are the same.
 Moreover, a charge is not a pleading;  it merely serves to initiate an
 investigation.  Like the National Labor Relations Board, the Authority
 has considerable leeway to found a Complaint on events other than those
 specifically set forth in the charge, the only limitation being that it
 may not get "so completely outside . . . the charge that it may be said
 to be initiating the proceeding on its own motion." Texas Industries,
 Inc., 336 F.2d 128 (CA-5);  Fant Milling Co, 360 U.S. 301:  Kohler Co.,
 220 F.2d 3, 7 (CA-7).  Accordingly, I reaffirm my ruling denying
 Respondent's motion for partial dismissal of the Complaint.
 
 
    /3/ The following correction of the transcript is hereby made.  TR
 50, line 12 "an hour long" is changed to "by an R. Long."
 
 
    /4/ See Joint Exhibit No. 8 and comme