17:0221(33)CA - Treasury, Customs Service and Customs Service Region IX, Chicago, IL and NTEU -- 1985 FLRAdec CA



[ v17 p221 ]
17:0221(33)CA
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.
 
    (b) Post at its facilities in