17:0281(40)CA - Agriculture, Plant Protection and Quarantine, Animal and Plant Health Inspection Service and NAAE, formerly The Federal Plant Quarantine Inspector's National Association -- 1985 FLRAdec CA



[ v17 p281 ]
17:0281(40)CA
The decision of the Authority follows:


 17 FLRA No. 40
 
 UNITED STATES DEPARTMENT OF
 AGRICULTURE, PLANT PROTECTION AND
 QUARANTINE, ANIMAL AND PLANT HEALTH
 INSPECTION SERVICE
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF AGRICULTURE
 EMPLOYEES, formerly THE FEDERAL PLANT
 QUARANTINE INSPECTOR'S NATIONAL
 ASSOCIATION
 Charging Party
 
                                            Case No. 6-CA-1195
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices as alleged in the complaint and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  The Judge further found that the Respondent
 had not engaged in certain other unfair labor practices and recommended
 dismissal of the complaint with respect to them.  Exceptions to the
 Judge's Decision were filed by the General Counsel, and the Respondent
 filed an opposition to the General Counsel's exceptions and
 cross-exceptions to the Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order as modified herein.
 
    The Judge found that the Respondent had discussed its intent to
 establish a new national policy on instream boardings of ships at ports
 with the Union, but that it had not given the Union notice, prior to
 actual implementation, as to what the policy would be or when it would
 be effective.  The Authority, contrary to the Respondent's exceptions,
 agrees with the Judge's conclusion that the Respondent thereby violated
 section 7116(a)(1) and (5) of the Statute, as it had not afforded the
 Union the requisite prior notice of its final decision and an
 opportunity to bargain concerning the impact and implementation of the
 decision.
 
    The Judge recommended that the Respondent be ordered to rescind its
 new national policy, to return to its prior discretionary policy, and to
 desist from implementing such changes without first affording the Union
 notice and an opportunity to bargain with regard to impact and
 implementation.  The Judge found, however, that a remedy that would
 require the Respondent to also award backpay to employees who may have
 lost overtime as a result of the change is unwarranted.
 
    Regarding the General Counsel's exception to the Judge's failure to
 recommend an award of backpay, the Authority has held that backpay
 orders in unfair labor practice proceedings must be in compliance with
 the Back Pay Act, 5 U.S.C. 5596, and that to comply with the Act there
 must be a determination that an employee has been adversely affected by
 an unjustified or unwarranted personnel action and a determination that
 but for the improper action such employee would not have suffered a loss
 or reduction in pay, allowances, or differentials.  Federal Aviation
 Administration, Northwest Mountain Region, Seattle, Washington, 14 FLRA
 No. 89 (1984);  Department of the Air Force, Air Force Systems Command,
 Electronic Systems Division, 14 FLRA No. 63 (1984).  In this case the
 request for backpay is premised on the alleged loss of overtime which
 the employees would have received if the instream boardings had
 continued.  However, as found by the Judge, the Respondent had the right
 to implement a national policy resulting in the a discontinuance of
 instream boardings and the General Counsel does not dispute the
 Respondent's right to effectuate such a decision without bargaining on
 the substance of its decision.  The violation is not based on that
 decision, but on the failure to bargain over the impact and
 implementation of the decision, once made.  Since it has not been shown
 that the employees would have worked overtime but for the Respondent's
 failure to bargain over the impact and implementation of its decision,
 the Authority concludes that a backpay order is not warranted.
 
    Regarding the Judge's proposed remedy that the Respondent should be
 required to return to its prior policy pending completion of bargaining
 on impact and implementation, as found by the Judge the Respondent did
 give the Union advance notice of a likely change in policy and asked for
 comments from the Union even though the change was within its rights to
 make.  While the employees were affected by the decision to implement a
 new policy, the record does not establish the nature and extent of the
 impact on the employees of the failure to bargain concerning the impact
 and implementation of the decision.  The Authority has also concluded
 that an order to return to the prior discretionary policy with regard to
 instream boardings would seriously disrupt or impair the efficiency and
 effectiveness of the Respondent's operations.  In this regard, the
 Respondent has persuasively argued that effective national policy
 favored uniformity at all ports and that a return to a situation where
 instream boardings resumed at some but not all ports of entry would be
 confusing and disruptive, not only of its own operations, but of
 commercial shipping as well. In consideration of these factors it is
 concluded that an order which requires the Respondent to bargain, upon
 request, over the impact and implementation of its decision will best
 effectuate the purposes and policies of the Statute.  Federal
 Correctional Institution, 8 FLRA 604, 606 (1982).  Department of the
 Treasury, Internal Revenue Service, Jacksonville District, Jacksonville,
 Florida, 15 FLRA No. 187 (1984).
 
                                   ORDER
 
    Pursuant to section 2323.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the United States Department of
 Agriculture, Plant Protection and Quarantine, Animal and Plant Health
 Inspection Service, shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally instituting changes in the terms and conditions of
 employment of its employees without first notifying the National
 Association of Agriculture Employees, formerly the Federal Plant
 Quarantine Inspector's National Association, the exclusive
 representative of certain of its employees, and affording the exclusive
 representative an opportunity to bargain concerning the impact and
 implementation of such changes.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its 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
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Upon request, bargain with the National Association of
 Agriculture Employees, formerly the Federal Plant Quarantine Inspector's
 Association, concerning the impact and implementation of its national
 policy regarding instream boardings.
 
    (b) Post at its headquarters and at all facilities in each of its
 Regions, copies of the attached Notice to be furnished by the Federal
 Labor Relations Authority.  Copies of said Notice shall be signed by the
 Deputy Administrator, Plant Protection and Quarantine, or designee(s),
 and shall be posted and maintained for 60 consecutive days thereafter,
 in conspicuous places, including all places where notices to employees
 are customarily posted.  Reasonable steps shall be taken by the
 Respondent to ensure that said Notices are not altered, defaced, or
 covered by any other material.
 
    (c) Pursuant to section 2323.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VI, 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.
 
    IT IS FURTHER ORDERED that those allegations of the complaint found
 to be without merit be, and they hereby are, dismissed.  /1A/ 
 
 Issued, Washington, D.C., March 21, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., 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 unilaterally institute changes in the terms and conditions
 of employment of employees without first notifying the National
 Association of Agriculture Employees, formerly the Federal Plant
 Quarantine Inspector's Association, the exclusive representative of
 certain of our employees, and affording the exclusive representative an
 opportunity to bargain concerning the impact and implementation of such
 changes.  WE WILL NOT in any like or related manner interfere with,
 restrain or coerce our employees in the exercise of their rights assured
 by the Federal Service Labor-Management Relations Statute.  WE WILL,
 upon request, bargain with the National Association of Agriculture
 Employees, formerly the Federal Plant Quarantine Inspector's National
 Association, concerning the impact on our employees of the change in our
 national policy with regard to instream boardings.
                                       . . . (Agency or Activity)
 
 Date:  . . .  By:  . . . (Signature) (Title) This Notice must remain
 posted for 60 consecutive days from the date of posting, and must not be
 altered, defaced, or covered by any other material.  If employees have
 any questions concerning this Notice or compliance with its provisions,
 they may communicate directly with the Regional Director, Region VI,
 Federal Labor Relations Authority, whose address is:  Bryan & Ervay
 Streets, Room 450, P.O. Box 2640, Dallas, Texas 75221, and whose
 telephone number is:  (214) 767-4996.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 6-CA-1195
 
    James E. Dumerer, Esquire
          For the General Counsel
 
    Mr. James S. Eddy
          For the Charging Party
 
    Alice K. Barnett, Esquire.
    Mr. Stanley E. Kensky
          For the Respondent
 
    Before:  WILLIAM B. DEVANEY
 
                         Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101
 et seq., /1/ and the Final Rules and Regulations issued thereunder, 5
 C.F.R. 2423.21, et seq., was initiated by a charge filed on May 28,
 1981, alleging violations of Secs. 16(a)(1), (5), (7) and (8) of the
 Statute (G.C. Exh. 1(a)).  A Complaint and Notice of Hearing issued on
 August 4, 1981 (G.C. Exh. 1(c)), the Complaint alleging violations only
 of Secs. 16(a)(1) and (5);  and on October 13, 1981, an Order issued
 Setting Place of Hearing (G.C. Exh. 1(g)), pursuant to which a hearing
 was duly held before the undersigned in New Orleans, Louisiana, on
 October 27, 1981.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence bearing on the issues involved, and were afforded
 opportunity to present oral argument.  At the close of the hearing,
 December 1, 1981, was fixed as the date for mailing post-hearing briefs
 and Counsel for Respondent and for the General Counsel each timely
 mailed an excellent brief, received on December 3, 1981, which have been
 carefully considered.  Upon the basis of the entire record, including my
 observation of the witnesses and their demeanor, I make the following
 findings and conclusions:
 
                                 The Issue
 
    The principal issue in this case is, as set forth in Paragraph 9 of
 the Complaint, whether Respondent on, or about, April 17, 1981, " . . .
 unilaterally changed existing terms and conditions of employment in
 discontinuing instream ship boardings without affording the Union proper
 notice and an opportunity to bargain over the impact and implementation
 of said change." The Complaint, in Paragraph 10, alleges a further
 unfair labor practice as the result of an asserted breach of contract;
 however, as a preponderance of the evidence does not support the alleged
 breach of contract, this allegation will be dismissed without reaching
 the further question as to whether, if a breach of the contract alleged,
 namely a failure to "meet and discuss and attempt resolution" of any
 alleged unfair labor practice alleged, were shown, such breach would
 constitute an independent unfair labor practice.  /2/
 
                          Findings and Discussion
 
    At all times material, the Union has been recognized as the exclusive
 representative for all professional Plant Protection and Quarantine
 Officers and all non-professional employees of the United States
 Department of Agriculture, Animal and Plant Health Inspection Service,
 Plant Protection and Quarantine, with certain exclusions, as more fully
 described in the parties current agreement (Jt. Exh. 1).  Prior to
 April, 1981, each Plant Protection and Quarantine (PPQ) regional office
 had discretion to determine whether PPQ Officers would board vessels
 instream or to wait and board upon arrival at the dock.  For many years,
 instream boarding had been a customary practice in all regions;
 however, the practice of instream boarding had been largely discontinued
 in some regions over the years and, following a death on the Delaware
 River in 1978 or 1979, of a Customs Officer (formerly a PPQ Inspector),
 routine instream boarding was generally discontinued, although each
 region, or even each port, pursuant to the discretionary authority
 granted, could, and did, determine to board some vessels instream.  The
 ports of New Orleans and Baton Rouge, in the South Central Region, were
 two of the few ports where vessels continued to be boarded instream on a
 routine basis.
 
    There is no doubt that Respondent, in 1980, to alleviate the
 disparate policies at the various ports of entry, determined that a
 uniform national policy was needed.  Accordingly, Mr. Harvey L. Ford,
 Deputy Administrator, advised the Regional Directors by memorandum dated
 July 16, 1980, and by separate letter, dated July 16, 1980, to Mr. Eddy
 enclosed a copy of the memorandum to the Regional Director, and stated,
 in part, as follows:
 
          "We do not consider this a negotiable item, but I welcome your
       input." (Res. Exh. 1).
 
 Mr. Ford's memorandum to Regional Directors stated as follows:
 
          "We have received a request to discontinue all 'instream'
       boardings because of the potential safety hazards to PPQ
       personnel, except under extreme emergency pest-risk conditions.
       We plan to make a national policy decision regarding 'instream'
       boarding in the very near future.  However, before a decision is
       made I would like to have your input.
 
          "May I have your comments by July 28, 1980." (Res. Exh. 1,
       Attachment).
 
 Mr. Eddy testified that he never received the July 16, 1980, letter
 addressed to him (Tr. 49).  It is evident that he did not submit any
 comments by July 28, 1980, as requested;  but whether he received the
 letter, enclosing the memorandum, and I agree with Respondent's
 assertion (Res. Brief, n.2) that "it is evident that he did", there is
 no possible question that he received the memorandum to Regional
 Directors, if not in the mail, then at his meeting with Mr. Ford on
 August 22, 1980 (Jt. Exh. 2, Tr. 14-15, 17-18, 50).
 
    Mr. Ford's memorandum to Regional Directors, dated July 16, 1980,
 which I find Mr. Eddy did receive and to which he responded in writing
 by letter dated September 2, 1980, is critical to resolution of the
 issue in this case.  There is no doubt whatever that Respondent gave
 notice to the Union, not later than August 22, 1980, when Mr. Ford and
 Mr. Eddy met for several hours at the airport in New Orleans, of its
 intention to promulgate "a national policy regarding 'instream' boarding
 . . . ." But I do not find in the memorandum to Regional Directors or in
 Mr. Ford's testimony concerning his discussion with Mr. Eddy on August
 22, 1980, any statement of what that "national policy" was to be.
 Plainly, as I read and understand the memorandum, it said, "We have
 received a request to discontinue all 'instream' boardings";  "We plan
 to make a national policy decision . . .";  but " . . . before a
 decision is made I would like to have your input." (Res. Exh. 1,
 Attachment).  Nor do I have any doubt, as Mr. Ford testified, that Mr.
 Eddy fully understood that there was going to be a change.  Thus, Mr.
 Ford very credibly testified,
 
          "A.  Well, the whole gist of the conversation was a preparation
       if I can term it that on Jim's part to convince me that a change
       in that policy was not in the best interest of the organization in
       terms of biological need.  There was a quite persuasive argument
       in that regard.  From the whole tenor of his presentation, one
       would gather that he understood that there was going to be a
       change, or that there was a proposed change-- that we intended to
       change that policy." (Tr. 86).
 
    Indeed, Mr. Ford's objective, wholly consistent with his statement to
 Mr. Eddy that "We do not consider this a negotiable item, but I do
 welcome your input", was to obtain the input not only of the Union but
 of his Regional Directors before a national policy decision was made.
 Nor do I find any inconsistency in Mr. Ford's testimony, which I fully
 credit, that Mr. Eddy said that "overtime wasn't a consideration" (Tr.
 86) in its position;  or in the last sentence of Mr. Eddy's written
 response of September 2, 1980, that, "I feel that if there are strong
 unfavorable conditions brought about by any overly drastic changes that
 do affect working conditions, then we'll have to get together again, and
 do what we must do." (Jt. Exh. 2).  That is, Mr. Eddy told Mr. Ford on
 August 22 that the Union was opposed to elimination of instream
 boardings for various reasons, including biological needs and the
 likelihood of missed vessels, and that its concern was not based on
 overtime considerations, and in his letter of September 2, Mr. Eddy
 again stated reasons for opposing any policy which eliminated instream
 boardings and, because the policy was yet to be determined, concluded, .
 . . if there are strong unfavorable conditions brought about by any
 overly drastic changes . . . then we'll have to get together again. . .
 ."
 
    Any possible doubt that the memorandum of July 16 represented, as of
 that date, Respondent's decision as to national policy regarding
 instream boarding is dispelled by Mr. Ford's further testimony,
 
          "A.  Well, not only did we get the impact from the association
       or get the letter from the association, or have a meeting with the
       association in which they brought up several points, but as a
       result of some of these things and some of the questions that the
       Regional Directors asked, my concern was that perhaps we might be
       too hasty and that the vessels that were sitting instream may
       (sic) ought to be boarded prior to-- we ought not have them
       sitting out there for long periods of time without boarding them.
       We not only had a problem that could have occurred in New Orleans,
       but we had vessels sitting out in the Chesapeake Bay that were not
       being boarded.  I was concerned about those.  This raised that
       issue at that time.  I had my veterinarian begin to look into this
       problem as to whether perhaps rather than cutting out all instream
       boarding, we ought to reconsider and put some sort of a time limit
       on a vessel sitting without someone going on board.  We talked to
       veterinarian services which is our sister agency and just simply
       took a long time to resolve that particular issue and to decide
       not to change but to go ahead with the way we originally intended
       to which was to do away with instream boardings." (Tr. 92-93).
 
    Nevertheless, from the notice of July 16, 1980, which stated, "We
 plan to make a national policy decision regarding 'instream' boarding in
 the very near future.  However, before a decision is made I would like
 to have your input", Respondent gave the Union no notice of what its
 "national policy decision regarding 'instream' boarding" was to be;  nor
 did it give any notice, prior to actual implementation, as to when its
 national policy decision would be effective.  To the contrary,
 Respondent unilaterally issued to its Regional Directors a memorandum
 dated April 7, 1981, which was implemented by Area III, "effective
 immediately" by memorandum dated April 17, 1981 (G.C. Exh. 2).
 
    Respondent's contention that its right to make a national policy
 decision concerning instream boarding was not negotiable has not been
 questioned;  nevertheless, although it was not obligated to do so,
 Respondent sought the views of the Union, as well as its own Regional
 Directors, to assist it in arriving at its policy decision.  Respondent
 argues that because of its memorandum of July 16, 1980, stated, "We have
 received a request to discontinue all 'instream' boardings" and inasmuch
 as its policy statement, dated April 7, 1981, concluded that, "all
 routine 'instream' ship boardings should be immediately discontinued", a
 fortiori, it had given notice to the Union not later than August 22,
 1980, the date on which Mr. Ford and Mr. Eddy met and when, if not
 before, the Union received actual notice of Respondent's national policy
 decision.  If this were true, there would considerable merit to
 Respondent's assertion that the Union, with ample opportunity to request
 impact and implementation bargaining after notice of the policy
 decision, had failed to do so and, if Respondent's failure to give a
 specific time as to when such policy was to become effective ("We plan
 to make a . . . decision . . . in the very near future") was not, alone,
 a bar, cf., Department of the Treasury, Internal Revenue Service,
 Indianapolis, Indiana, A/SLMR No. 909, 7 A/SLMR 844 (1977), the Union
 might be deemed to have waived its right to bargain.  But Respondent's
 basic premise is false and is contrary to the record.  As noted above,
 the July 16, 1980, memorandum neither stated, nor purported to state,
 Respondent's decision.  To the contrary, the July 16, 1980, memorandum
 while clearly stating that "We have received a request to discontinue
 all 'instream' boardings" went on to state quite plainly that, "We plan
 to make a national policy decision regarding 'instream' boarding . . .
 However, before a decision is made I would like to have your input." The
 entire thrust of the discussion between Mr. Ford and Mr. Eddy on this
 matter on August 22 was Mr. Eddy's solicited "input" as to what the
 policy should be concerning instream boarding which, as requested, Mr.
 Eddy supplemented by his written response of September 2, 1980.  There
 can be no doubt that Mr. Eddy fully understood that discontinuance of
 all instream boarding was, indeed, under consideration;  but it is
 equally clear that, while discontinuance of all instream boarding was
 under consideration, Respondent had made no decision as to what its
 policy decision would be.  Certainly, Mr. Eddy confidently believed
 that, for reasons he stated, all instream boarding would not be
 discontinued;  but concluded his letter of September 2, 1980, by stating
 that if there are "any overly drastic changes that do affect working
 conditions, we'll have to get together again . . . ." Mr. Ford, quite
 candidly, testified that,
 
          " . . . my concern was that perhaps we might be too hasty and
       that the vessels that were sitting instream may (sic) ought to be
       boarded prior to-- we ought not have them sitting out there for
       long periods of time without boarding them . . . I had my
       veterinarian begin to look into this problem as to whether perhaps
       rather than cutting out all instream boarding, we ought to
       reconsider and put some sort of a time limit on a vessel sitting
       without someone going on board.  We talked to veterinarian
       services . . . and just simply took a long time to resolve that
       particular issue . . . ."
 
 Finally, the national policy as set forth in the memorandum of April 7,
 1981, provided that, "all routine 'instream' ship boardings should be
 immediately discontinued except for extraordinary or emergency pest-risk
 situations." This statement of policy was significantly different in two
 respects from the "request" referred to in the July 16, 1980,
 memorandum:  First the "request to discontinue all 'instream' boardings,
 became "all routine 'instream' ship boardings";  and Second, the
 exception in the request referred to in the July 16, 1980, memorandum,
 "except under extreme emergency" became, in the policy statement,
 "except for extraordinary or emergency".  Then the policy statement of
 April 7, 1981, set forth examples of situations "which could be
 considered extraordinary or emergency pest-risk situations and could
 require 'instream' boarding . . . ." as follows:
 
          "1.  Reports from the shipping line or ship's Master that live
       insects were found aboard.
 
          "2.  Reports confirmed by the shipping line or Master or
       observation by a reliable source that live ruminants or swine are
       aboard.
 
          "3.  Reports from maritime industry, Customs, Immigration,
       Coast Guard, etc., that a particular vessel is dumping garbage,
       and/or garbage cans are outside the rail, and/or there is an
       excessive accumulation of garbage to the point of falling
       overboard and the situation is not corrected within 48 hours
       through contact with the shipping line and/or ship's agent.
 
          "'Instream' boarding is not justified on coastwise vessels
       reported to have had garbage violations and stores sealed at a
       previous port."
 
 Of course, the above details of Respondent's "Policy on Stream, Bay, and
 Outside Harbor Ship Boardings", as well as provisions for documentation
 in writing for each "instream" boarding appeared for the first time in
 the policy statement of April 7, 1981, which was unilaterally
 implemented by Respondent, without any prior notice to the Union on, or
 prior to, April 17, 1981.
 
                                Conclusions
 
    Respondent's unilateral implementation of its policy on instream
 boarding, on or about April 17, 1981, without first affording the Union
 an opportunity to negotiate concerning the procedures which Respondent
 would observe in implementing the change and concerning appropriate
 arrangements for employees adversely affected by such change, violated
 Secs. 16(a)(5) and (1) of the Statute.  Norfolk Naval Shipyard,
 Portsmouth, Virginia, 6 FLRA No. 22 (1981);  Department of the Treasury,
 Internal Revenue Service, 3 FLRA 630 (1980).  As the record shows that
 Respondent had not made any policy decision regarding possible
 discontinuance of all instream boardings either on July 16, 1980, when
 it issued its memorandum to Regional Directors, and, which it also
 transmitted to the Union, or on August 22, 1980, when it met with the
 Union, it necessarily follows that the Union did not waive its right to
 bargain on impact and implementation by failing to request negotiations
 after notice of Respondent's July 16, 1980, memorandum.  Were this
 conclusion wrong, I would, nevertheless, find that Respondent's
 unilateral issuance and implementation of its April 7, 1981, "Policy on
 Stream, Bay, and Outside Harbor Ship Boardings" violated Secs. 16(a)(5)
 and (1) of the Statute for the reason that its April 7, 1981, statement
 of policy was materially different from the "request" it gave notice, on
 July 16, 1980, it had under consideration, and, as Respondent did not
 implement, as its policy decision, such "request", Respondent was
 obligated to give the Union notice of its substantially different policy
 prior to its implementation.  cf., Department of Health and Human
 Services, Social Security Administration, Southeastern Program Service
 Center, Birmingham, Alabama, 5 FLRA No. 52 (1981).  In this regard,
 although I am aware that the Statute, as did the Executive Order, may
 impose somewhat different obligations and confer somewhat different
 rights when a matter subject to mandatory bargaining, as distinguished
 from a reserved right subject only to bargaining on impact and
 implementation, is involved, nevertheless, I would apply to impact and
 implementation bargaining the standards imposed by the Assistant
 Secretary as to a change subject to mandatory bargaining, namely, that:
 
          " . . . the Respondent was obligated to notify the Complainant
       prior to making its final determination or decision . . . ."
       Southeast Exchange Region of the Army and Air Force Exchange
       Service, Rosewood Warehouse, Columbia, South Carolina, A/SLMR No.
       656, 6 A/SLMR 237, 239 (1976).
 
 Indeed, while this was not, so far as I am aware, expressly articulated
 as to impact and implementation bargaining, there is no doubt that
 decisions of the Assistant Secretary, as to impact and implementation
 bargaining, consistently reached a like result, see, for example,
 Department of the Navy, Naval Plant Representative Office, Baltimore,
 Maryland, A/SLMR No. 456, 5 A/SLMR 125 (1975);  Jacksonville District,
 Internal Revenue Service, Jacksonville, Florida, A/SLMR No. 893, 7
 A/SLMR 758 (1977);  and more important, that decisions of the Authority
 have consistently reached a like result, see, by way of example,
 Department of Treasury, Internal Revenue Service, Jacksonville District,
 3 FLRA 630 (1980);  Internal Revenue Service, Washington, D.C., 4 FLRA
 No. 68 (1980);  San Antonio Air Logistics Center (AFLC), Kelly Air Force
 Base, Texas, 5 FLRA No. 22 (1981).  Although the impasse procedures of
 Sec. 19 of the Statute may not be available, /3/ which was,
 specifically, a reason that appropriate notice must be given as to when
 changes are intended to be put into effect, U.S. Army Corps of
 Engineers, Philadelphia District, A/SLMR No. 673, 6 A/SLMR 339 (1976),
 and by inference was certainly an underlying reason that the agency was
 obligated to notify the union "prior to making its final determination
 or decision . . . .", Rosewood Warehouse, supra;  nevertheless both
 logic and reason mandate that the exclusive representative must be
 notified prior an agency's implementation of its final determination or
 decision in order that the exclusive representative have a reasonable
 opportunity to request bargaining with respect to impact and
 implementation.  Here, Respondent's final determination or decision with
 respect to instream boarding was materially different from the
 "proposal" it had under consideration initially and, certainly, areas of
 concern vis-a-vis impact and implementation were vastly different.  For
 example, had Respondent discontinued all instream boarding except under
 extreme emergency pest-risk conditions, which proposal it initially had
 under consideration, concerns subject to impact and implementation
 bargaining would have been severely limited;  but Respondent's actual
 policy statement was quite different as it discontinued only routine
 instream boardings;  introduced, as a further exception, "extraordinary"
 situations' gave examples as to what could be considered extraordinary
 or emergency situations which could require instream boarding;  and
 provided for documentation, all of which greatly broadened the areas of
 possible concern subject to impact and implementation bargaining.  In
 short, while I have found that Respondent had not made its policy
 decision until well after August 22, 1980 - indeed, the record strongly
 infers that it had not made its policy decision until on or about April
 7, 1981, when it issued its policy statement - and, having made no
 policy decision, most assuredly had not given notice of its policy
 decision so as to set in motion the Union's obligation, if it desired
 negotiations, to request bargaining on impact and implementation.  But
 if this conclusion were wrong, nevertheless, as previously held in
 Department of Health and Human Services, Social Security Administration,
 Southeastern Program Service Center, Birmingham, Alabama, 5 FLRA No. 52
 (1981), as Respondent did not implement the proposal it had under
 consideration, it was obligated to give notice of its substantially
 different policy decision and afford the Union a reasonable opportunity
 prior to its implementation to request negotiations on its impact and
 implementation.  I find no basis in the record to support Respondent's
 assertion that the Union in any manner waived or abandoned its right to
 negotiate on impact and implementation;  but if, contrary to my finding,
 there were any such waiver or abandonment, clearly it did not extend to
 Respondent's policy statement of April 7, 1981.  Finally, Respondent's
 placing of "Instream boarding policy" on the agenda for the June 3,
 1981, consultation meeting neither cured nor excused /4/ Respondent's
 violation of its bargaining obligation to give the Union notice of its,
 policy decision prior to its implementation.  Jacksonville District,
 Internal Revenue Service, Jacksonville, Florida, A/SLMR No. 893, 7
 A/SLMR 758 (1977);  Department of the Air Force, Scott Air Force Base,
 Illinois, 5 FLRA No. 2 (1981);  San Antonio Air Logistics Center (AFLC),
 Kelly Air Force Base, Texas, 5 FLRA No. 22 (1981);  Norfolk Naval
 Shipyard, Portsmouth, Virginia, 6 FLRA No. 22 (1981).
 
                                  Remedy
 
    General Counsel seeks restoration of the status quo ante, including
 back pay for overtime lost by unit employees as a result of the
 violation.
 
    In a true sense, this is not a situation where it is possible to
 restore the status quo.  Vessels have long since come and gone.  Nor
 would it be proper, in my opinion, to order any monetary reimbursement.
 First, Respondent's right, unilaterally, to make the decision to
 discontinue all routine instream boardings is not questioned.  The
 Authority has made clear that negotiations on "procedures" and "impact"
 may not operate to prevent management from exercising rights reserved
 under the Statute to management.  American Federation of Government
 Employees, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire
 Exchange, Fort Dix, New Jersey, Case No. O-NG-20, 2 FLRA 152 (1979);
 National Treasury Employees Union, Case No. O-NG-3, 2 FLRA 254 (1979);
 American Federation of Government Employees, Local 1712, Case No.
 O-AR-104, 6 FLRA No. 85 (1981).  In the Local 1712 case, supra, the
 Authority stated, in part as follows:
 
          "The Authority has also held that, while the rights of
       management set forth in Section 7106(a) are subject to Section
       7106(b)(2), this provision only authorizes the establishment of
       procedures to the extent that they do not prevent management from
       acting at all." (6 FLRA No. 85 at p. 468).
 
 As Respondent had the right under Sec. 6 to discontinue all routine
 instream boarding, an award of backpay for asserted loss of overtime
 earnings would interfere with the right of management, contrary to Sec.
 6, as to prevent Respondent from taking action it was, and is,
 authorized to take.  Professional Air Traffic Controllers Organization,
 Case No. O-AR-100, 5 FLRA No. 101 (1981).
 
    Second, the loss of overtime earnings opportunity asserted did not
 result from the unfair labor practice alleged and found, namely the
 failure and refusal to give notice of the policy decision prior to its
 implementation to permit negotiation on impact and implementation.  That
 is, the discontinuance of all routine instream boarding was not "an
 unjustified or unwarranted personnel action" within the meaning of
 Section 702 of the Civil Service Reform Act of 1978 which amended
 Section 5596(b) of Title 5, United States Code to provide for back pay
 in case of unfair labor practices and grievances, notwithstanding that
 Respondent's violation of its bargaining obligation with respect to
 "procedures" or "appropriate arrangements for employees adversely
 affected by the exercise of any authority under this section by such
 management officials", constituted an unfair labor practice.  cf.
 Defense Logistics Agency, 5 FLRA No. 21 (1981) where the Authority
 ordered reimbursement of "an amount equal to the dues that AFGE would
 have received but did not receive as a result of the unlawful refusal to
 honor . . . valid dues deduction authorizations."
 
    It is recognized that the Authority has, in appropriate cases,
 granted a status quo ante remedy in impact and implementation
 situations, San Antonio Air Logistics Center (AFLC), Kelly Air Force
 Base, Texas, 5 FLRA No. 22 (1981);  Norfolk Naval Shipyard, Portsmouth,
 Virginia, 6 FLRA No. 22 (1981);  but it has denied a status quo ante
 remedy when inappropriate, General Services Administration, 6 FLRA No.
 77 (1981).  Under the circumstances, a status quo ante remedy would be
 inappropriate;  however, in order to remedy the violation by Respondent
 of its bargaining obligation, I shall order that Respondent forthwith
 withdraw its memoranda of April 7 and April 17, 1981;  to reinstate its
 prior discretionary policy regarding instream boarding;  that it notify
 the Union of any proposed change of policy regarding instream boarding;
 and, upon request, negotiate in good faith on the impact and
 implementation of any such proposed change of policy.  Obviously, such
 order will affect the exercise of a reserved right of management, but
 will not prevent Respondent from acting at all;  rather, Respondent will
 be free to act, provided only that it acts in conformance with its
 bargaining obligation under the Statute.
 
    Accordingly, having found that Respondent violated Secs. 16(a)(5) and
 (1) of the Statute by its unilateral implementation of its "Policy on
 Stream, Bay, and Outside Harbor Ship Boardings", I recommend that the
 Authority adopt the following:
 
                                   ORDER
 
    Pursuant to Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, and
 Sec. 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that
 the United States Department of Agriculture, Plant Protection and
 Quarantine, Animal and Plant Health Inspection Service, shall:
 
    1.  Cease and desist from:
 
          a) Instituting changes in the established discretionary policy
       regarding instream boarding without first notifying the National
       Association of Agriculture Employees, formerly the Federal Plant
       Quarantine Inspector's National Association, the exclusive
       representative of its employees, and affording such representative
       the opportunity to negotiate in good faith, to the extent
       consonant with law, regulations and the Statute, with regard to
       the impact and implementation of such change.
 
          b) In any like or related manner, interfering with,
       restraining, or coercing its employees in the rights assured by
       the Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Statute.
 
          a) Rescind and withdraw the "Policy on Stream, Bay, and Outside
       Harbor Ship Boardings" unilaterally implemented by memoranda dated
       April 7 and April 17, 1981.
 
          b) Reinstate the discretionary policy concerning instream
       boardings as it existed prior to April 7, 1981.
 
          c) Notify the National Association of Agriculture Employees,
       formerly the Federal Plant Quarantine Inspector's National
       Association, of any proposed change of policy regarding instream
       boarding and, upon request, negotiate with such representative, to
       the extent consonant with law and regulations, concerning the
       impact and implementation of such change.
 
          d) Post at its headquarters and at all facilities in each
       Region, 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 the Deputy
       Administrator, Plant Protection and Quarantine, and they shall be
       posted for 60 consecutive days thereafter in conspicuous places,
       including all places where notices to employees are customarily
       posted.  The Deputy Administrator shall take reasonable steps to
       insure that such notices are not altered, defaced, or covered by
       any other material.
 
          e) Notify the Regional Director of the Federal Labor Relations
       Authority for Region VI, whose address is:  P.O. Box 2640, Dallas,
       Texas, 75221, in writing, within 30 days from the date of this
       Order, what steps have been taken to comply therewith.
 
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
 Dated:  March 10, 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
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT institute any change in the discretionary policy regarding
 instream boarding without first notifying the National Association of
 Agriculture Employees, formerly the Federal Plant Quarantine Inspector's
 National Association, the exclusive representative of our employees and
 affording it the opportunity to negotiate, to the extent consonant with
 law and regulations, concerning the impact and implementation of such
 change.  WE WILL rescind and withdraw the "Policy on Stream, Bay, and
 Outside Harbor Ship Boardings", which we unilaterally implemented by
 memoranda dated April 7, 1981, and April 17, 1981.  WE WILL reinstate
 the discretionary policy concerning instream boardings as it existed
 prior to April 7, 1981.  WE WILL NOT in any like or related manner
 interfere with, restrain or coerce our employees in the exercise of
 their rights assured by the Federal Service Labor-Management Relations
 Statute.  WE WILL notify the National Association of Agriculture
 Employees, formerly the Federal Plant Quarantine Inspector's National
 Association, of any intended change of policy regarding instream
 boarding and, upon request, negotiate, to the extent consonant with law
 and regulations, on 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 any employees have any
 questions concerning this Notice or compliance with any of its
 provisions, they may communicate directly with the Regional Director,
 Federal Labor Relations Authority, whose address is:  Federal Labor
 Relations Authority, Region VI, P.O. Box 2640, Dallas, Texas, 75221, and
 whose telephone number is:  (214) 767-4996.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1A/ In view of this dismissal, and noting particularly the absence
 of exceptions in this regard, we find it unnecessary to pass upon the
 Judge's rationale with regard to these allegations of the complaint.
 
 
    /1/ For convenience of reference, sections of the Statute hereinafter
 are, also, referred to without inclusion of the initial "71" of the
 Statute reference, e.g., Section 7116(a)(1) will be referred to, simply,
 as "16(a)(1)."
 
 
    /2/ Article XI of the parties' agreement provides:
 
          "The parties acknowledge the importance of resolving
       differences and disputes informally, at the lowest level of
       management.  Therefore, it is agreed that prior to filing a charge
       of Unfair Labor Practice with the Federal Labor Relations
       Authority, they will adhere to the following:
 
          The party alleging a violation under Title VII, 7116, shall
       notify the other party, in writing, of the alleged violation and
       the intent to file a formal charge at least ten (10) days prior to
       filing such a charge. The parties will meet to discuss and attempt
       resolution within this period of time." (Jt. Exh. 1, p. 13).
 
 By letter dated May 3, 1981 (G.C. Exh. 3), addressed to Mr. Harvey Ford,
 Deputy Administrator, Mr. Eddy, President of the National Association of
 Agriculture Employees (hereinafter referred to as "Union") advised
 Respondent of its intent to file an unfair labor practice charge.  Mr.
 Eddy's letter was received by Respondent on May 6, 1981 (Tr. 111), and
 was received by Mr. Robert H. Strong, then Respondent's Labor Relations
 Specialist (Tr. 106), on May 12, 1981.  Mr. Strong credibly testified
 that on May 12, 1981, he called for Mr. Eddy but ended up talking to Mr.
 Royal E. Sharp, Vice President of the Union, and discussed " . . .
 placing instream boarding on the agenda since we had already scheduled a
 meeting of May 28 at that time to satisfy the contract provision." (Tr.
 114);  that on May 15, 1981, he met with Mr. Eddy on general problems
 and that, "I think he brought it up to discuss it, and I again suggested
 that we not discuss it there in my office since we had already intended
 on putting it on the agenda for the consultation meeting.  He consented
 to it." (Tr. 115).  The meeting scheduled for May 28 was subsequently
 rescheduled for June 3, 1981 (Tr. 118);  "Instream boarding policy" was
 placed on the agenda for the June 3 meeting (Res. Exh. 3) and was
 discussed on June 3, 1981.  The Union, however, had filed its charge,
 which was dated May 22, on May 28, 1981.
 
    Not every breach of contract constitutes an unfair labor practice.
 General Services Administration, Region 5, Public Buildings Service,
 Chicago Field Offices, A/SLMR No. 528, 5 A/SLMR 424 (1975).  A clear,
 flagrant and persistent breach of contract may rise to the seriousness
 of a unilateral change in the contract and, therefore, constitute an
 unfair labor practice.  Food Safety and Quality Service, U.S. Department
 of Agriculture, Washington, D.C., 7 FLRA No. 103 (1982);  Watervliet
 Arsenal, U.S. Army Armament Command, Watervliet, New York, A/SLMR No.
 726, 6 A/SLMR 526 (1976);  but if there is no flagrant or patent breach
 constituting a unilateral change, differing and arguable interpretations
 of an agreement are not unfair labor practices, Food Safety and Quality
 Service, U.S. Department of Agriculture, Washington, D.C., supra;
 Watervliet Arsenal, supra;  Department of Army, Watervliet Arsenal,
 Watervliet, New York, A/SLMR No. 624, 6 A/SLMR 127 (1976).  Here, of
 course, the record would support:  a) notification by Respondent on May
 12 of its desire to discuss the matter, pursuant to Article XI, at an
 already scheduled consultation meeting on May 28;  b) a meeting on May
 15, 1981, at which the intended charge was brought up by the Union and
 Respondent again suggested that discussion be deferred until the
 consultation meeting to which Mr. Eddy, President of the Union,
 consented.  Without more, it is obvious that there was no flagrant or
 patent breach, indeed that there was no intent to violate Article XI in
 any manner.  I found Mr. Strong to be a wholly credible witness, and his
 recollection was confirmed by the conceded addition of "Instream
 boarding policy" to the agends for the consultation meeting.
 Accordingly, I fully credit Mr. Strong's testimony in this regard;  but
 even if it were assumed, contrary to the affirmative testimony of Mr.
 Strong that "He (Mr. Eddy) consented to it", that the Union had not
 specifically consented to deferral of the Article XI discussion until
 the scheduled consultation meeting, Respondent's deferral of the
 discussion until the consultation meeting would not have constituted so
 flagrant or patent a breach of contract as to constitute an unfair labor
 practice, as Respondent did not demonstrate any purpose or intent to
 vitiate its agreement to "meet to discuss and attempt resolution" of the
 Union's intended unfair labor practice charge promptly, albeit not
 within the 10 day period.
 
    I have reservations that a violation of Article XI by a failure to
 "meet to discuss and attempt resolution" within ten days would
 constitute a refusal to consult or negotiate, within the meaning of Sec.
 16(a)(5) of the Statute, cf., U.S. Department of Defense, Department of
 the Army, Army Materiel Command, Automated Logistics Management Systems
 Agency, A/SLMR No. 211, 2 A/SLMR 512 (1972) (unfair labor practice based
 on alleged failure of Respondent to respond to charge as provided in
 Section 203.2 of the Assistant Secretary's Regulations under E.O.
 11491);  nevertheless, as it is unnecessary to reach or to decide this
 question, I expre