17:0843(114)CA - Customs Service, Region 1, Boston, MA and NTEU and NTEU Chapter 133 -- 1985 FLRAdec CA



[ v17 p843 ]
17:0843(114)CA
The decision of the Authority follows:


 17 FLRA No. 114
 
 U.S. CUSTOMS SERVICE, REGION I 
 BOSTON, MASSACHUSETTS 
 Respondent
 
 and 
 
 NATIONAL TREASURY EMPLOYEES UNION 
 AND NTEU CHAPTER 133 
 Charging Party
 
                                            Case No. 1-CA-30181
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent, U.S. Customs
 Service, Region I, Boston, Massachusetts, had engaged in the unfair
 labor practices alleged in the complaint and recommending that it be
 ordered to cease and desist therefrom and take certain affirmative
 action.  Thereafter, the Respondent filed exceptions with respect to the
 Judge's Decision and the General Counsel filed an opposition.
 
    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.
 
    In agreement with the Judge, the Authority finds that the Respondent
 violated section 7116(a)(1) and (5) of the Statute /1/ when it
 unilaterally increased the number of screeners per shift and enlarged
 the duties of the position of screener /2/ to include the active search
 for prime narcotics suspects without affording the exclusive
 representative, National Treasury Employees Union and NTEU Chapter 133
 (NTEU), prior notice and thereafter rejected NTEU's request to bargain
 concerning the impact and implementation of the change.  In so finding,
 the Authority emphasizes that where an agency in exercising a management
 right under section 7106 of the Statute changes conditions of employment
 of unit employees, there exists a statutory duty to negotiate if such
 change results in more than a de minimis impact upon unit employees or
 such impact is reasonably foreseeable.  See U.S. Government Printing
 Office, 13 FLRA 203 (1983) and Department of Health and Human Services,
 Social Security Administration, Chicago Region, 15 FLRA No. 174 (1984).
 
    However, the Authority finds that the Judge's recommended status quo
 ante remedy is not warranted.  Thus, balancing the nature and
 circumstances of the violation against the degree of disruption in
 government operations that would be caused by such a remedy, and taking
 into consideration the various factors set forth in Federal Correctional
 Institution, 8 FLRA 604 (1982), the Authority concludes that such remedy
 would not effectuate the purposes and policies of the Statute.  In this
 regard, the Authority concludes that while no notice of the foregoing
 changes was given to NTEU, the Respondent's refusal to bargain with NTEU
 as requested concerning a change in the number of screener positions to
 be assigned per shift was not willful in nature, but instead was based
 upon the Respondent's good faith but erroneous belief that there had
 been no change in preexisting practice with respect to determining such
 numbers and that NTEU's bargaining request did not extend to the
 additional duties to be performed by such screeners.  Indeed, the record
 demonstrates that supervisory customs inspectors work under an
 established and published schedule which sets forth a numerical ratio of
 customs inspectors to incoming passengers and that this practice was
 unaffected by the Respondent's decision to increase the number of
 screeners within this predetermined ratio.  The record also indicates
 that supervisory customs inspectors historically determine, on a
 unilateral basis, which of the four possible duty assignments any
 particular customs inspector will perform on any given shift, further
 substantiating that the Respondent's belief that there had been no
 change in preexisting practice was in good faith.
 
    Moreover, the record establishes that the changes in both the number
 and duties of the screeners were announced subsequent to a meeting
 attended by one of the Respondent's supervisory officials at customs
 headquarters in Washington, D.C., where the Respondent was informed that
 the headquarters office was not satisfied with the number of narcotics
 seizures being made in the Boston area.  In addition, the record shows
 that in November 1982, four months prior to the changes herein, the
 Respondent sponsored a training course on observational techniques held
 by inspectors from the headquarters office, the purpose of which was to
 increase the number of narcotics seizures.  Clearly, the change in
 duties of the screeners was but one part of a comprehensive nationwide
 effort to increase narcotics seizures which had previously been
 announced by President Reagan at the highest level of the Federal
 Government.  /3/ The Authority recognizes the significance of this
 nationwide effort to increase narcotics seizures and concludes that this
 important stated policy objective is likely to be disrupted and impaired
 by a return to the status quo ante.  See, e.g., Department of the
 Treasury, Internal Revenue Service, Jacksonville, Florida, 15 FLRA No.
 187 (1984).  See also Federal Aviation Administration, Washington, D.C.,
 17 FLRA No. 26 (1985).
 
    Finally, the Judge found that the foreseeable impact of the
 Respondent's action upon bargaining unit employees would occur by
 diminishing the future opportunities of primary customs inspectors in
 achieving acceptable yearly performance appraisals, and hence their
 future career development and opportunities.  The Authority notes in
 this regard that a prospective bargaining order would provide the
 parties an opportunity to address any concerns about the future career
 development and opportunities of primary customs inspectors, and
 concludes that an order requiring the Respondent to bargain with NTEU
 upon request concerning such foreseeable future impact will provide a
 meaningful remedy for the violation found to have been committed and
 will fully effectuate the purposes and policies of the Statute.
 Therefore, the Judge's recommended Order shall be modified accordingly.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority hereby orders that the
 U.S. Customs Service, Region I, Boston, Massachusetts shall:
 
    1.  Cease and desist from:
 
    (a) Changing the number of screeners assigned to any given shift and
 changing the assigned duties of the customs inspectors serving in
 screener positions, without first giving the National Treasury Employees
 Union and NTEU Chapter 133, the exclusive representative of its
 employees, prior notice of the change and the opportunity to negotiate
 on the impact and the manner of implementation of such change.
 
    (b) In any like or related manner interfering with, restraining or
 coercing employees in the exercise of the rights accorded them by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
    (a) Upon request, negotiate with National Treasury Employees Union
 and NTEU Chapter 133 on the impact and implementation of any changes in
 both the number of screeners assigned per shift and the duties assigned
 customs inspectors serving as screeners.
 
    (b) Notify the National Treasury Employees Union and NTEU Chapter 133
 prior to effecting any further changes in both the number of screeners
 assigned per shift and the duties assigned customs inspectors serving as
 screeners, and upon request bargain concerning the impact and
 implementation of such changes.
 
    (b) Post at the Logan International Airport, Boston, Massachusetts
 copies of the attached Notice on forms to be furnished by the Federal
 Labor Relations Authority.  Upon receipt of such forms they shall be
 signed by an appropriate official of the U.S. Customs Service, Region I,
 Boston, Massachusetts, and shall be posted and maintained for 60
 consecutive days thereafter, in conspicuous places, including bulletin
 boards and other places where Notices to employees are customarily
 posted.  Reasonable steps shall be taken to insure that such Notices are
 not altered, defaced or covered by any other material.
 
    (d) Notify the Regional Director for Region I, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., May 8, 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 change the number of screeners assigned to any given shift
 and change the assigned duties of customs inspectors serving in screener
 positions without first giving the National Treasury Employees Union and
 NTEU Chapter 133, the exclusive representative of our employees, prior
 notice of the change and the opportunity to negotiate on 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 notify the National Treasury Employees Union
 and NTEU Chapter 133 prior to effecting any future changes in both the
 number of screeners assigned per shift and the duties assigned customs
 inspectors serving as screeners and, upon request, negotiate on the
 impact and implementation of any such changes.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) This Notice must remain posted for 60
 consecutive days from the date of posting, and must not be altered,
 defaced, or covered by any other material.  If employees have any
 questions concerning this Notice or compliance with its provisions, they
 may communicate directly with the Regional Director, Region I, Federal
 Labor Relations Authority, whose address is:  441 Stuart Street, 9th
 Floor, Boston, Massachusetts 02116, and whose telephone number is:
 (617) 223-0920.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Mr. William P. Milton
    For the Charging Party
 
    Carol Waller Pope, Esquire
    For the General Counsel
 
    Dennis J. Cronin, Esquire
    For the Respondent
 
    Before:  BURTON S. STERNBURG, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5
 U.S.C.Section 7101, et seq., and the Rules and Regulations issued
 thereunder.
 
    Pursuant to an amended charge first filed on April 22, 1983, by the
 National Treasury Employees Union, (hereinafter called the Union or
 NTEU), a Complaint and Notice of Hearing was issued on June 23, 1983, by
 the Regional Director for Region I, Federal Labor Relations Authority,
 Boston, Massachusetts.  The Complaint, which was amended at the hearing,
 alleges that the U.S. Customs Service, Region I, Boston, Massachusetts,
 (hereinafter called the Respondent or Customs Service), violated
 Sections 7116(a)(1) and (5) of the Federal Service Labor-Management
 Relations Statute, (hereinafter called the Statute), by virtue of its
 action in unilaterally changing the percentage and/or number of
 inspectors assigned to "screener" and "primary inspector" positions on
 any given shift without first giving the Union notice of the change and
 an opportunity to bargain with respect to the impact and the manner of
 implementation of the change.
 
    A hearing was held in the captioned matter on September 26, 1983, in
 Boston, Massachusetts.  All parties were afforded the full opportunity
 to be heard, to examine and cross-examine witnesses, and to introduce
 evidence bearing on the issues involved herein. The General Counsel,
 Respondent and Charging Party submitted post-hearing briefs which to the
 extent they are responsive to the allegations of the Complaint, have
 been duly considered.  /4/
 
                             Findings of Fact
 
    The Union, with certain named exceptions, is the certified collective
 bargaining representative of all Respondent's non-professional
 employees, including, among others, the approximately fifty-three
 Customs Inspectors employed in the Port of Boston of Region I.  The
 Customs Inspectors are assigned on a rotational basis to duty stations
 located at Logan Airport and various seaports within the jurisdiction of
 Region I.  When assigned to Logan Airport the Customs Inspectors perform
 the following duties:  primary inspector, secondary inspector, screener
 or coordinator.  Assignments to the aforementioned duties are made on a
 daily basis by Supervisory Customs Inspectors.
 
    When assigned to the position of primary inspector, the Customs
 Inspector works at one of the twenty modular conveyer belt stations
 equipped with a Treasury Enforcement Communication Systems Computer
 (TECS).  In performance of his duties as a primary inspector the Customs
 Inspector examines the hand-carried luggage of the arriving
 international passengers and reviews their respective passports and
 declarations.  Additionally, the primary inspector elicits certain
 information from the deplaning passengers and inputs same into the TECS
 system.  Thereafter, if the primary inspector determines that a further
 examination of the passenger and/or his baggage is not warranted, the
 passenger is cleared and allowed to leave the terminal.  However, if the
 primary inspector determines that a further investigation or examination
 of the passenger is in order he may take the passenger to the rear of
 the inspection module or to a private room for a more thorough
 examination.  There is no limit on the amount of time the primary
 inspector is allowed to spend on the optional secondary thorough
 passenger examination.
 
    When assigned to the position of secondary inspector the Customs
 Inspector works at the end of the modular conveyer belt behind the
 primary inspector and primarily acts as a backup to the primary
 inspector in that he is available to take over the primary inspector's
 position in the event that the primary inspector has to leave the
 forward position on the conveyer belt for purposes of conducting a more
 thorough inspection of a deplaning passenger's luggage.  Given the
 configuration of the inspection station, up to ten Customs Inspectors
 can be assigned to the position of secondary inspector at any given
 time.
 
    When assigned to the position of coordinator the Customs Inspector is
 responsible for assigning arriving flights a specific gate position and
 luggage carousel.
 
    When assigned to the position of screener, the position here in
 dispute, the Customs Inspector was prior to March 17, 1983, charged with
 the responsibility of facilitating the flow of passengers, answering
 questions and clearing passengers requiring special attention.  This
 latter group of passengers includes the elderly, unaccompanied minors
 and handicapped individuals.
 
    Assignment of Customs Inspectors to incoming flight is predicated
 upon the number of passengers arriving at the airport within a 30-minute
 period.  Thus, according to the record evidence, the ratio of Customs
 Inspectors to incoming passengers is to be no less than 30 to 1, i.e.
 one Customs Inspector to be assigned for every 30 arriving passengers.
 The record further establishes that the Supervisory Customs Inspectors
 work under an established and published schedule which sets forth a
 numerical ratio of Customs Inspectors per total amount of "incoming
 passengers and crew on flights with an ETA within a 30-minute period."
 According to the schedule, the 30 to 1 ratio of Customs Inspectors to
 arriving passengers, holds constant until such time as the amount of
 incoming passengers exceeds 240 passengers, thereafter one additional
 Customs Inspector is always added to the 30 to 1 ratio.  /5/ The record
 also establishes that the Supervisory Customs Inspectors historically
 determine, on a unilateral basis, which of the four duties, i.e. primary
 inspector, secondary inspector, coordinator, or screener, any particular
 Customs Inspector will perform on any given shift he is assigned to.
 
    In making the assignments to the various positions, the Supervisory
 Customs Inspector, other than insuring that the 30 to 1 ratio of Customs
 Inspectors to passengers is maintained, are under no restrictions
 whatsoever with respect to the number of Customs Inspectors to be
 assigned to the various positions.  Thus, the Supervisory Customs
 Inspector may in his discretion not assign any Customs Inspector to the
 position of screener on any given shift.  Additionally there appears to
 be no set ratio with respect to the number of Customs Inspectors
 assigned to the primary and secondary positions on the belts.  In this
 latter connection the record evidence indicates that there have been
 times when no Customs Inspectors were assigned to the positions of
 screener or secondary inspector on a particular shift.  At other times
 there were only two secondary inspectors assigned to back up eighteen
 primary inspectors.  On another day ten Customs Inspectors were assigned
 to the position of secondary inspectors behind twenty primary
 inspectors.
 
    With respect to the yearly performance appraisals of the Customs
 Inspectors, the record indicates that one of the elements considered in
 such appraisals is the number of narcotic seizures made by the Customs
 Inspectors.
 
    According to the testimony of Union President Pacewicz, Mr. Stephan
 Emmanuel and Mr. Lawrence Byrd, all of whom are Customs Inspectors who
 have worked one time or another at Logan Airport, prior to approximately
 March 17, 1983, Respondent never assigned more than two Customs
 Inspectors to the position of screener on any particular shift.  Their
 testimony in this respect is supported by a number of daily and/or shift
 belt assignments which indicate that on such days no more than two
 Customs Inspectors were assigned to the position of screener.  These
 latter exhibits further show that on a number of other days no Customs
 Inspectors were assigned to the position of screener.  /6/ Further,
 according to the testimony of Mr. Pacewicz, Mr. Emmanuel and Mr. Byrd,
 subsequent to May 17, 1983, Respondent changed its policy and began
 assigning more than two Customs Inspectors per shift to the position of
 screener.  Again, their testimony in this respect is supported by
 documentary evidence which consists of a number of daily and/or shift
 assignments which lists the names of the Customs Inspectors and their
 respective duty assignments.  /7/
 
    Mr. Pacewicz further testified that Customs Inspectors assigned to
 primary positions are expected to process thirty passengers per minute.
 Mr. John Holzman, a supervisory inspector, and Respondent's only
 witness, did not specifically deny the existence of such a standard.
 Thus, when asked whether a primary inspector on the belt "always
 inspects thirty passengers every half hour?", he merely replied "no."
 When asked if it could take longer, he replied that "it could."
 
    On or about March 17, 1983, the Customs Inspectors at Logan Airport
 were informed of a staff meeting to be held that morning.  Upon learning
 of the meeting from another employee, Union President Pacewicz contacted
 Supervisory Customs Inspector Holzman and inquired as to the purpose of
 the meeting and why the Respondent had failed to give the Union formal
 advanced notice of the meeting.  Mr. Holzman replied that the purpose of
 the meeting was to inform the Customs Inspectors of the substance of his
 recent trip to Customs Headquarters in Washington, DC.  Whereupon, Mr.
 Pacewicz told Mr. Holzman that Customs Inspector Richard Stevens would
 serve as the Union representative at the meeting.
 
    During the course of the subsequent meeting, attendance at which was
 voluntary, Mr. Holzman informed the employees that the headquarters
 office was not satisfied with the number of narcotic seizures being made
 in the Boston area and that henceforth he would be assigning additional
 Customs Inspectors to the position of screener on each shift.  The
 additional screeners would be responsible for performing, in addition to
 their current responsibilities, the additional duty of screening out
 arriving passengers who appeared to be good prospects and/or suspects
 for narcotic arrests.  Mr. Holzman further informed the Customs
 Inspectors that the assignment to the additional screener positions
 would be on a voluntary basis.  According to the uncontradicted
 testimony of Mr. Holzman, in the absence of a volunteer, there would be
 no additional screeners added to the floor.
 
    Following the close of the meeting, Mr. Pacewicz was informed by Mr.
 Stevens of the substance of the meeting and the fact that additional
 Customs Inspectors would be assigned to screener positions on each
 shift.  Upon receiving the aforementioned information from Mr. Stevens
 Mr. Pacewicz contacted Mr. Holzman and asked why the Union had not been
 given prior notice of the change and an opportunity to negotiate
 thereon.  Mr. Holzman replied that there was not a change in procedure
 and therefore Respondent was under no obligation to bargain.  Mr.
 Pacewicz then contacted Mr. Ralph Batchelder, Division Director of
 Inspection and Control, and asked him the same questions that he had
 earlier presented to Mr. Holzman.  Mr. Batchelder replied that there had
 not been any change.
 
    As noted above, subsequent to the meeting of March 17, 1983,
 Respondent has admittedly been assigning at least one more Customs
 Inspector to the position of screener on any given shift than had been
 the practice prior to the March 17, 1983 meeting.  On August 25, 1983,
 Respondent assigned seven Customs Inspectors to the position of
 screener.
 
                        Discussion and Conclusions
 
    The General Counsel takes the position that Respondent's action in
 unilaterally, without prior notice to the Union, changing both the job
 content of the screener position and the number of Customs Inspectors
 assigned to the position of screener on any given shift violated
 Sections 7116(a)(1) and (5) of the Statute.  In support of its position,
 the General Counsel contends that the assignment of additional Customs
 Inspectors to screener positions impacts on the remaining Customs
 Inspectors assigned to primary and secondary position in that this
 latter group of Customs Inspectors is forced to take up the slack and
 process additional passengers, namely those passengers that would have
 been processed by the Customs Inspectors who had been removed from the
 conveyer belt and assigned to the floor as screeners.  /7/ Additionally,
 according to the General Counsel, inasmuch as the amount of narcotics
 arrests enter into an employee's yearly appraisal those Customs
 Inspectors remaining in the primary and secondary positions would be at
 a disadvantage since they would not have the luxury afforded to the
 screeners to select in a leisurely or unhurried manner potential
 narcotics carriers and thereafter conduct a thorough inspection of the
 suspect's luggage.
 
    The Respondent takes the position that assignment of additional
 Customs Inspectors to screener positions had no significant impact on
 the remaining Customs Inspectors assigned to primary and secondary
 positions on the conveyor belt.  Further, according to Respondent in the
 absence of any showing of impact, it was under no obligation to give the
 Union prior notice and an opportunity to bargain.  In support of its
 position the Respondent argues that the record is barren of any evidence
 indicating that but for their assignment to the position of screener the
 additional Customs Inspectors would have been assigned to primary
 positions on the belt.  Additionally, Respondent takes the position that
 there is no requirement that an inspector process thirty passengers per
 minute while assigned to a primary position on the belt and points out
 that a primary position inspector may leave his position at any time to
 conduct a further inspection of any passenger thereby making it
 impossible to process passengers at such a pace.
 
    In view of the above stated positions of the General Counsel and the
 Respondent, and since it is well settled that a Union is entitled to
 advanced notice and an opportunity to bargain concerning the impact and
 the manner of implementation of any changes in working conditions
 unilaterally made by an agency pursuant to its rights accorded by
 Section 7106(a) of the Statute, /9/ and since Respondent admits, and I
 so find, that there had been a change in the number of Customs
 Inspectors assigned to screener positions after March 17, 1983, /10/ it
 is obvious that resolution of the instant complaint turns on whether the
 assignment of the additional Customs Inspectors to screener positions on
 any particular shift had a significant impact on the working conditions
 of the unit employees.
 
    The General Counsel, as noted above, would find that the change
 impacted significantly upon the unit employees for the following
 reasons:  (1) Those Customs Inspectors remaining in primary positions on
 the belt would be forced to process additional passengers, namely, those
 passengers who would have been normally processed by the Customs
 Inspectors who had been removed from primary positions on the belt and
 assigned to the new additional screener positions, and (2) the Customs
 Inspectors assigned to screener positions would have a distinct
 advantage in the area of arresting narcotic smugglers since they would
 have the first opportunity to select prime suspects from the arriving
 passengers and the luxury of conducting a leisurely, but thorough,
 search of such passengers without having the time constraints
 customarily faced by those Customs Inspectors serving in primary
 positions on the belt.  In this latter connection, it is the General
 Counsel's position that inasmuch as narcotics seizures play an important
 role in an employees yearly appraisal, those employees not having the
 opportunity to serve as additional screeners on any given shift would
 have a harder time achieving the minimum number of seizures necessary to
 meet their yearly appraisal requirements.  /11/
 
    Contrary to the General Counsel, upon the basis of the record
 evidence, I can not conclude that the assignment of additional Customs
 Inspectors to screener positions would necessarily result in a larger
 passenger processing load being imposed upon the Customs Inspectors
 remaining in primary belt positions.  Thus, there is no probative
 evidence, whatsoever, in the record which indicates that the Customs
 Inspectors assigned to the additional screener positions on any given
 shift would have, but for such assignments, served at primary inspector
 positions on the belt.  Both the testimony of Mr. Holzman, which is
 credited in this respect, as well as the daily belt assignments
 submitted as exhibits, make it clear that other than one coordinator per
 shift, there was no set formula utilized for purposes of dividing the
 Customs Inspectors among the remaining shift positions, namely,
 screener, primary inspector or secondary inspector.  Rather, as noted in
 the factual portion of this decision, all assignments to the remaining
 three positions were made at the sole unrestricted discretion of the
 Supervisory Customs Inspector on duty.
 
    The General Counsel has relied heavily on the shift or belt
 assignment for August 25, 1983 which indicates that on such day seven
 Customs Inspectors were assigned to screener positions.  This same
 document indicates that all twenty of the available primary inspection
 positions had been assigned to other Customs Inspectors.  In such
 circumstances, and since there were only twenty primary inspection
 positions at Logan Airport, I question how the assignment of additional
 Customs Inspectors to screener positions could have imposed, as
 contended by the General Counsel, an additional passenger processing
 burden upon the Customs Inspectors serving in primary inspection
 positions.  There being no further openings at primary inspection
 positions, it would have been impossible to place the additional or new
 screeners on any position other than that of secondary inspector or as
 additional screeners.  Inasmuch, as a secondary inspector merely serves
 as a back up to a primary inspector, the assignment of the additional
 screeners to back up positions would not appear to have resulted in a
 diminution of the primary inspector's passenger processing load.
 
    In view of the above considerations, and particularly the absence of
 any probative evidence establishing that but for their assignment to the
 new screener positions such Customs Inspectors would have been assigned
 to primary positions on the belt where they would be responsible for
 processing part of the passenger load, I find that Respondent's action
 in assigning additional Customs Inspectors to screener positions did not
 add any significant additional passenger processing burden upon those
 Customs Inspectors then working at, or assigned to, primary inspection
 positions.
 
    However, aside from the foregoing conclusions, I do find that by
 assigning the new additional screeners, as well as the existing
 screeners, expanded duties, i.e. the specific responsibility of
 searching for prime narcotics carrier suspects, Respondent has
 instituted a change which has a foreseeable impact on the working
 conditions of unit employees.  /12/ As the amount or number of narcotics
 seizures is an element to be considered in an employees yearly appraisal
 any advantage given to one group of Customs Inspectors to achieve same,
 foreseeably serves as a detriment to, and impacts upon, the remaining
 Customs Inspectors not included in the select group.  While, it might
 well be true that one of the basic responsibilities of a Customs
 Inspector is always that of stopping any suspected narcotics carrier,
 here, Respondent decided to specifically add such duty to the new
 screeners responsibilities and give them the opportunity to be the first
 to observe deplaning passengers, select prime suspects and, if
 circumstances warrant, conduct a leisurely search of the suspect.
 Although Customs Inspectors in primary positions have an opportunity to
 stop prime suspects and search for narcotics, by virtue of the fact that
 they are at belt positions and working under the stress of processing
 many passengers, their opportunity for being successful in the area of
 narcotics seizures is of a second rate nature.  Stated another way, the
 screener gets the prime suspects and the primary position Customs
 Inspector gets the dregs.  Having diminished the opportunities of the
 primary position Customs Inspectors to achieve the requisite amount of
 narcotics seizures needed for an acceptable yearly appraisal, Respondent
 was under an obligation to give the Union prior notice of the change and
 an opportunity to request bargaining on the impact of the change and the
 manner of its implementation.  Inasmuch as the record supports the
 conclusion that Union was not given such notice and opportunity, I find
 that Respondent violated Sections 7116(a)(1) and (5) of the Statute.
 
    Applying the standards set forth by the Authority in Federal
 Correctional Institution, 8 FLRA 111, I further find that a status quo
 ante remedy is in order.  In this latter connection, the record
 indicates and I find, that the Respondent gave no notice to the Union
 prior to the change, immediately upon learning of the change the Union
 requested negotiations, Respondent refused to negotiate on the ground
 that there had been no change in conditions of employment, and an order
 requiring a return to the status quo existing on March 17, 1983, would
 not create undue hardship on Respondent or disrupt or impair its
 operations.
 
    Having concluded that Respondent violated Sections 7116(a)(1) and (5)
 of the Statute by virtue of its actions in increasing the number of
 screeners per shift and enlarging the duties of the screeners to include
 the active search for prime narcotics suspects, it is recommended that
 the Federal Labor Relations Authority adopt the following order designed
 to effectuate the purposes and policies of the Statute.
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
 Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
 2423.29(b)(1), the Authority hereby orders that the U.S. Customs
 Service, Region I, Boston, Massachusetts, shall:
 
    1.  Cease and desist from:
 
          (a) Changing the number of screeners assigned to any given
       shift and/or changing the assigned duties of the Customs
       Inspectors serving in screener positions, without first giving the
       National Treasury Employees Union prior notice of the change and
       the opportunity to negotiate, to the extent consonant with law and
       regulations, on the impact and the manner of implementation of
       such change.
 
          (b) In any like or related manner, interfering with,
       restraining or coercing employees in the exercise of the rights
       accorded them by the Federal Service Labor-Management Statute.
 
    2.  Take the following affirmative action:
 
          (a) Rescind and withdraw the changes effected March 17, 1983,
       with respect to both the additional number of screeners assigned
       per shift and the additional duties to be performed by Customs
       Inspectors serving as screeners.
 
          (b) Notify the National Treasury Employees Union prior to
       effecting any changes in both the number of screeners assigned per
       shift and the duties assigned Customs Inspectors serving as
       screeners and, upon request negotiate, to the extent consonant
       with law and regulations, on the impact and the manner of
       implementation of any such changes.
 
          (c) Post at the Logan International Airport, Boston,
       Massachusetts, copies of the attached Notice marked "Appendix" on
       forms to be furnished by the Regional Director for Region I,
       Federal Labor Relations Authority.  Upon receipt of such forms
       they shall be signed by the Director, Boston District, and shall
       be posted and maintained by him for 60 consecutive days
       thereafter, in conspicuous places, including all bulletin boards
       and other places where Notices are customarily posted.  The
       Director shall take reasonable steps to insure that such Notices
       are not altered, defaced or covered by any other material.
 
          (d) Notify the Regional Director for Region I, 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.
 
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
 Dated:  February 16, 1984
         Washington, DC
 
 
 
                                 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
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT change the number of screeners assigned to any given shift
 and/or change the assigned duties of Customs Inspectors serving in
 screener positions, without first giving the National Treasury Employees
 Union prior notice of the change and the opportunity to negotiate, to
 the extent consonant with law and regulations, on the impact and the
 manner of 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 rescind and withdraw the changes effected
 March 17, 1983, with respect to both the additional number of screeners
 assigned per shift and the duties to be performed by Customs Inspectors
 serving as screeners.
                                       (Agency or Activity)
 
 Dated:  . . .  (Signature) This Notice must remain posted for 60
 consecutive days from the date of posting, and must not be altered,
 defaced, or covered by any other material.  If employees have any
 question concerning this Notice or compliance with its provisions, they
 may communicate directly with the Regional Director of the Federal Labor
 Relations Authority, Region I, whose address is:  441 Stuart Street, 9th
 Floor, Boston, Massachusetts 02116;  and whose telephone number is
 617-223-0920.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (5) of the Statute provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (a) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
 
 
    /2/ The Authority adopts the Judge's finding that the complaint,
 alleging a violation by the Respondent's unilateral change in the number
 of inspectors assigned to screener and primary inspector positions
 without giving the Union the opportunity to bargain on impact and
 implementation, encompassed the change in duties of the screeners.
 Thus, as found by the Judge, and supported by the record, the change in
 the number of screeners was integrally related to the change in duties,
 as both were part of a plan to increase narcotics seizures in the Boston
 area. Moreover, the matter was fully litigated at the hearing, without
 objection by the Respondent.
 
 
    /3/ See, e.g., President Reagan's "Remarks on Signing Executive Order
 12368, Concerning Federal Drug Abuse Policy Functions," where he noted
 the importance of mobilizing "all our forces to stop the flow of drugs
 into this country. . . ." Public Papers of the Presidents, Ronald Regan,
 1982, Vol. I, p. 813 (June 24, 1982).
 
 
    /4/ In the absence of any objection, the General Counsel's motion to
 correct the transcript is hereby granted.
 
 
    /5/ The published schedule indicates, for example, that when the
 arriving planes have between 271-300 passengers there must be eleven
 Customs Inspectors assigned to the shift.
 
 
    /6/ Supervisory Customs Inspector John Holzman, Respondent's only
 witness, testified that prior to March 17, 1983, he had assigned three
 Customs Inspectors to the position of screener on a shift.  Upon further
 questioning, however, he acknowledged that he could not remember how
 many Customs Inspectors were assigned to screener positions on any given
 shift.
 
 
    /7/ The events leading up to the alleged change in policy with regard
 to assigning additional Customs Inspectors to screener positions on each
 arriving flight will be discussed infra.  However, with respect to
 whether or not there was an increase in the number of Customs Inspectors
 assigned to screener positions on any given shift after March 17, 1983,
 Mr. Holzman admitted that there had been an increase of at least one
 more screener per shift.  In this latter connection, the record,
 particularly the shift assignment schedule for August 25, 1983
 establishes that seven Customs Inspectors had been assigned to screener
 positions on that date.  The August 25, 1983 shift assignment schedule
 further discloses that