[ 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 all twenty primary positions had been fully
staffed with Customs Inspectors. Three Inspectors were listed in
secondary positions.
/8/ The aforementioned contention of the General Counsel appears to
be premised on the assumption that Customs Inspectors assigned to
screener positions would have otherwise been assigned to primary
positions on the conveyer belt.
/9/ United States Department of Justice, INS, El Paso, Texas, 11 FLRA
27; Department of Health and Human Service, SSA, 11 FLRA 78.
/10/ See testimony of Supervisor Holzman, supra.
/11/ This latter argument of the General Counsel appears to be
predicated on the fact that the screeners, after March 17, 1983, were
assigned the further duties of seeking out and processing high risk
narcotic suspects.
/12/ Inasmuch as the change in the number of screeners per shift was
integrally related to, and the reason for, the change in duties of the
screeners, I find the change in duties of the screener to be encompassed
by the outstanding complaint.