17:0221(33)CA - Treasury, Customs Service and Customs Service Region IX, Chicago, IL and NTEU -- 1985 FLRAdec CA
[ v17 p221 ]
The decision of the Authority follows:
17 FLRA No. 33 DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE AND U.S. CUSTOMS SERVICE, REGION IX CHICAGO, ILLINOIS Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 5-CA-30046 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Motion to Transfer Proceeding to the Authority and Stipulation" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record, including the stipulation of facts and the contentions of the parties, the Authority finds: The National Treasury Employees Union (Union) represents a unit of various employees of the U.S. Customs Service including inspectional employees assigned to the Metro Airport Detroit District in Detroit, Michigan (hereinafter Metro Airport). The Detroit District is part of the U.S. Customs Service's Region IX, located in Chicago, Illinois. The complaint herein alleges that the Respondent, U.S. Customs Service and U.S. Customs Service, Region IX, violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing a change in the duty hours of inspectional employees at the Metro Airport without bargaining over the substance, impact and implementation of the change. The record indicates that at least since 1975, a practice existed at the Metro Airport whereby customs inspectors worked a 9:00 a.m. to 5:00 p.m. shift with no formal lunch break or lunch period included in the shift. On September 15, 1982, the Respondent notified the Union of its intent to change the existing 9:00 a.m. to 5:00 p.m. tour of duty to 9:00 a.m. to 6:00 p.m. and to include a one-hour non-paid meal period. The Respondent further advised that the proposed change would become effective on October 3, 1982. The Union thereupon requested bargaining over the substance, impact and implementation of the change and submitted several proposals. The record indicates that the parties met on October 1, 1982, and bargained concerning various aspects of the proposed change, but that the Respondent refused to bargain over the substance of the change. Among the matters agreed to by the parties was the duration of the meal period. Initially, the Respondent proposed that there be a one-hour meal period. Ultimately, the parties agreed to a thirty-minute non-paid meal period. The Respondent then indicated that the starting and quitting times of the shift would be 9:30 a.m. to 6:00 p.m. and refused to bargain over the Union's proposed starting and quitting times of 9:00 a.m. to 5:30 p.m. or its subsequently proposed 8:30 a.m. to 5:00 p.m. tour of duty. Implementation of the 9:30 a.m. to 6:00 p.m. starting and quitting times took place on November 1, 1982. The parties have stipulated that the change in hours did not establish an additional shift or tour of duty but merely changed the existing tour of duty for customs inspectors. Additionally, the parties have stipulated that the change substantially impacted on the working conditions of bargaining unit employees inasmuch as employees received overtime pay for hours worked beyond 5:00 p.m. prior to the change but only for hours worked after 6:00 p.m. subsequent to the change. The Respondent essentially argues that no bargaining obligation existed with respect to the change in starting and quitting times by virtue of language contained in Article 21, Section 2 of the parties' expired agreement. That language provided as follows: ARTICLE 21 HOURS OF WORK Section 2. For employees engaged in inspectional activities, law enforcement activities, and their required support personnel (normally those employees working under the jurisdiction of the Office of Border Operations), the employer shall establish, maintain and change those shifts, tours of duty and hours of work to best promote the efficient and effective accomplishment of the mission and operations of the Service. The Respondent argued that the terms of this provision continued notwithstanding the expiration of the agreement. In Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington and Federal Aviation Administration, Washington, D.C., 14 FLRA 644 (1984), the Authority determined that a contractual waiver of bargaining rights constituted a permissive subject of bargaining under the Statute. The Authority noted that while a waiver of bargaining rights was binding on the parties during the life of an agreement, once that agreement expired, either party was free to terminate such practice. Having found the waiver provision to be a permissive subject of bargaining, the Authority then concluded that agency management was not free to insist upon its continuation once the union indicated that it no longer wished to be bound by such a provision but instead sought to exercise its statutory bargaining rights. In the instant case, the Authority finds that Article 21, Section 2 of the expired agreement constituted a waiver of the Union's statutory right to bargain. While binding during the life of the agreement, it was terminable by either party upon the agreement's expiration. When the Respondent notified the Union of its intention to change the starting and quitting times for customs inspectors at the Metro Airport, and the Union requested bargaining over the substance of the decision as well as its impact and implementation, the Union was expressing its desire that it no longer wished to be bound by the provision but instead wanted to exercise its statutory bargaining rights. Accordingly, the Respondent was no longer free to insist upon the continuation of this provision so as to preclude bargaining over the change in starting and quitting times. See Department of Transportation, Federal Aviation Administration, Washington, D.C., and its Chicago Airways Facilities Sector, 16 FLRA No. 71 (1984). With respect to the Respondent's obligation to bargain over the change in starting and quitting times, the Authority finds that such a matter was within the required scope of bargaining under the Statute. The Authority has previously held that the decision to change starting and quitting times is subject to the duty to bargain unless it can be demonstrated that such a change directly or integrally relates to the numbers, types or grades of employees or positions assigned to a work project or tour of duty so as to be determinative of such numbers, types or grades and therefore negotiable solely at the election of the agency under section 7106(b)(1) of the Statute. /1/ In the instant case, noting the parties' stipulation that the change in starting and quitting times did not establish an additional shift or tour of duty but merely changed the existing tour of duty, and in the absence of any evidence that such change was in any manner determinative of the numbers, types or grades of employees assigned to the tour of duty, the Authority finds that the Respondent was obligated to bargain over the change in starting and quitting times. Its refusal to do so is therefore violative of section 7116(a)(1) and (5) of the Statute. To remedy the unfair labor practice conduct, the General Counsel and the Union have requested a status quo ante order. Additionally, but without any specificity, the Union has requested that backpay be given "to all affected inspectional personnel in the amount they would have earned in overtime pay between the hours of 5:00 p.m. and 6:00 p.m. had this violation not occurred," and also "an order requiring payment of appropriate attorney's fees." In the Authority's view, an order which requires the Respondent to bargain with the Union, upon its request, concerning the starting and quitting times for customs inspectors assigned to the Metro Airport will best effectuate the purpose and policies of the Statute. Thus, as previously noted, the hours of the shift prior to the Respondent's change were 9:00 a.m. to 5:00 p.m. and did not include a non-paid meal period. Subsequently, the parties bargained and reached agreement over the addition of a thirty-minute non-paid meal period. This addition necessarily had the effect of altering the starting or quitting time of the existing shift. A status quo ante order which would require reinstatement of the 9:00 a.m. to 5:00 p.m. tour of duty would be inconsistent with the parties' agreement concerning the thirty-minute non-paid meal period and would not, in the Authority's view, effectuate the purposes and policies of the Statute. With respect to the Union's request for backpay and attorney's fees, the Authority finds, as to the former, that it has not been established that but for the Respondent's improper refusal to bargain over the starting and quitting times, employees would have received overtime pay. /2/ Under these circumstances, the Authority concludes that a backpay order is not warranted. As to the request for attorney's fees, the Union has not indicated under what authority it is seeking such a remedy or in any manner demonstrated any possible basis for an award of such fees. /3/ Accordingly, the Authority finds no reason to grant such request. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Department of the Treasury, U.S. Customs Service and U.S. Customs Service, Region IX, Chicago, Illinois, shall: 1. Cease and desist from: (a) Instituting any change in the starting and quitting times of customs inspectors at the Metro Airport Detroit District without affording the National Treasury Employees Union, the exclusive bargaining representative of its employees, the opportunity to negotiate with respect to such change. (b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purpose and policies of the Federal Service Labor-Management Relations Statute: (a) Upon request of the National Treasury Employees Union, bargain concerning the starting and quitting times of customs inspectors at the Metro Airport Detroit District.