18:0263(34)CA - Customs Service and NTEU and All NTEU Chapters -- 1985 FLRAdec CA



[ v18 p263 ]
18:0263(34)CA
The decision of the Authority follows:


 18 FLRA No. 34
 
 U.S. CUSTOMS SERVICE 
 Respondent
 
 and 
 
 NATIONAL TREASURY EMPLOYEES
 UNION AND ALL NTEU CHAPTERS 
 Charging Party
 
                                            Case No. 3-CA-30160
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent, U.S. Customs
 Service, 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 thereto.
 
    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.
 
    Thus, in agreement with the Judge, the Authority concludes that the
 Respondent satisfied its obligation to give timely notice to the Union
 of its intention to implement its National Inspectional Contraband
 Enforcement Team Policy (CET) by mailing such notice to the Union on
 August 31, 1982, even though the Union never received such notice.  As a
 result, the Respondent did not violate section 7116(a)(1) and (5) of the
 Statute /1/ when it proceeded to take the necessary steps to implement
 the policy on September 16, absent any request to bargain by the Union
 within the contractual notice period.
 
    However, also in agreement with the Judge, the Authority concludes
 that the Respondent's subsequent refusal to negotiate upon request by
 the Union concerning procedures and appropriate arrangements for
 adversely affected employees prior to the issuance of the plan did
 violate section 7116(a)(1) and (5) of the Statute. Thus, the Authority
 notes that the Union's request to bargain, immediately upon its
 discovery of the Respondent's intended change in policy, was more than
 two weeks before the actual issuance of the plan.  Also in agreement
 with the Judge, the Authority finds that the Respondent's actions at
 that time, including its assertion that the Union had waived the right
 to bargain, effectively precluded the Union from submitting written
 proposals as required by the parties' agreement, and therefore such
 failure cannot be raised by the Respondent as a defense to its refusal
 to negotiate.  Accordingly, in all the circumstances of this case, the
 Authority finds, in agreement with the Judge, that the Respondent
 violated section 7116(a)(1) and (5) of the Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the U.S. Customs Service shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to negotiate in good faith with the National Treasury
 Employees Union concerning procedures and appropriate arrangements for
 unit employees adversely affected by its National Inspectional
 Contraband Enforcement Team Policy, issued October 19, 1982, as Manual
 Supplement No. 3290-04.
 
    (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 Statute:
 
    (a) Upon request and perfection of a bargaining proposal, as required
 by the parties' current collective bargaining agreement, negotiate in
 good faith with the National Treasury Employees Union concerning
 procedures and appropriate arrangements for unit employees adversely
 affected by its National Inspectional Contraband Enforcement Team
 Policy, issued October 19, 1982.
 
    (b) Post at each of its facilities, including its Headquarters Office
 in Washington, D.C., and each Regional Office, and at all places where
 notices to employees of the U.S. Customs Service are customarily posted,
 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 the Commissioner, U.S. Customs Service, or his designee, and
 shall be posted and maintained for 60 consecutive days thereafter, in
 conspicuous places, including all bulletin boards and other places where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken to ensure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, 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 24, 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 refuse to negotiate with the National Treasury Employees
 Union concerning procedures and appropriate arrangements for unit
 employees adversely affected by our National Inspectional Contraband
 Enforcement Team Policy, issued October 19, 1982, as Manual Supplement
 No. 3290-04.
 
    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 and perfection of a bargaining proposal, as
 required by our current collective bargaining agreement, negotiate in
 good faith with the National Treasury Employees Union concerning
 procedures and appropriate arrangements for unit employees adversely
 affected by our National Inspectional Contraband Enforcement Team
 Policy, issued October 19, 1982.
                                       (Activity)
 
    Dated:  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 III, Federal Labor Relations Authority, whose address
 is:  1111 18th Street, N.W., Room 700, P.O. Box 33758, Washington, D.C.
 20033-0758, and whose telephone number is:  (202) 653-8500.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Alfonso Robles, Esquire
    For the Respondent
 
    Mr. John McEleney
    For the Charging Party
 
    Carolyn J. Dixon, Esquire
    For the General Counsel
 
    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., /2/ and the Final Rules and Regulations issued thereunder, 5
 C.F.R. 2423.1, et seq., involves Respondent's asserted failure and
 refusal "to negotiate in good faith with the Union over the impact and
 the procedures relating to the implementation of the issuance entitled
 'National Inspectional Enforcement Team Policy'" (Complaint, Paragraph
 9, G.C. Exh. 1(c)).  In actuality, two principal issues are presented:
 First, did Respondent lawfully proceed with the issuance of the above
 policy when it had mailed to the Union timely notice, addressed to the
 designated person, which fixed a date for response;  the Union did not
 respond and denies receipt of Respondent's notice;  and the Union
 asserts that it learned of the policy, and its imminent implementation,
 after its approval by top management of Respondent?  Second, if
 Respondent lawfully proceeded with the issuance of the above policy, did
 it lawfully refuse to negotiate with the Union concerning "procedures
 which management officials . . . will observe in exercising any
 authority under this section" (Sec. 6(b)(2)) and/or "appropriate
 arrangements for employees adversely affected by the exercise of any
 authority under this section by some management officials" (Sec.
 6(b)(3))?
 
    This case was initiated by a charge filed on December 14, 1982 (G.C.
 Exh. 1(a)), which alleged violations of Secs. 16(a)(1), (5) and (8) of
 the Statute.  The Complaint and Notice of Hearing issued on March 23,
 1983;  alleged a violation only of Secs. 16(a)(1) and (5) of the
 Statute;  and set the hearing for May 18, 1983, pursuant to which a
 hearing was duly held on May 18, 1983, in Washington, D.C., before the
 undersigned.
 
    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, June
 20, 1983, was fixed as the date for mailing post hearing briefs, which
 time was extended to July 8, 1983, by Order issued June 7, 1983, on the
 Motion of Respondent and for good cause shown;  and subsequently, on the
 Motion of the Charging Party and for good cause shown, was further
 extended to July 29, 1983, by Order dated July 1, 1983.  Each party has
 timely filed a brief received on, or before, July 29, 1983, which have
 been carefully considered together with closing arguments.  Upon the
 basis of the entire record, /3/ including my observation of the
 witnesses and their demeanor, I make the following findings and
 conclusions:
 
                                 FINDINGS
 
    1.  By letter dated August 31, 1982 (Res. Exh. 2), addressed to Mr.
 Vincent L. Connery, National President of National Treasury Employees
 Union (hereinafter referred to as "NTEU"), the recognized exclusive
 representative, nationwide, of Respondent's employees, with certain
 exceptions more fully set forth in Paragraph 5 of the Complaint,
 Respondent transmitted a proposed Customs issuance entitled "National
 Inspectional Contraband Enforcement Team Policy" (CET).  The enclosed
 policy was General Counsel Exhibit No. 2.  This was to be issued as a
 "Manual Supplement".
 
    2.  Respondent's covering letter of August 31, 1982, stated, in part,
 that:
 
          " . . . This issuance will be implemented September 14, 1982 .
       . . ." (Res. Exh. 2).
 
    3.  Mr. Phillip Spayd, Chief, Collective Bargaining and Contract
 Administration, United States Customs Service, testified, without
 contradiction, that the period prior to date of intended implementation,
 here August 31 to September 14, is the notice period for NTEU to request
 negotiations;  that, pursuant to Article 37, Section 4 of the parties'
 agreement (Res. Exh. 3), an impact bargaining demand is effected only by
 the submission of written proposals (Tr. 62);  and that this is the
 practice in all cases (Tr. 62).  Mr. Spayd further stated that a
 proposed issuance is suspended for the duration of the notice period
 (here to September 14) or until completion of negotiations (Tr. 76).
 
    4.  Mr. Robert M. Smith, in 1982 Chief, Labor Disputes in Fields
 Branch of Respondent's Office of Labor Relations and currently Acting
 Director, Employment and Compensation, signed Respondent's Exhibit 2 for
 Mr. Dana as he was Acting Director of the Office of Labor-Management
 Relations on that date (Tr. 42).  Mr. Smith testified that "All of our
 letters are normally sent to Mr. Connery" (Tr. 42);  and that he had the
 letter mailed to Mr. Connery.  Ms. Diane Flood, who typed Respondent's
 Exhibit 2, testified that she placed the letter in a franked envelope,
 which had the printed return address of the U.S. Customs Service;  that
 she either placed the letter on the mail cart (Tr. 90) or she placed it
 in the mailbox (Tr. 91);  that she did not recall whether she had
 personally placed this particular letter in the mailbox or whether she
 had placed it on the mail cart (TR. 91, 92);  that, by one procedure or
 the other, she had "mailed" this letter (Tr. 89);  and this letter was
 never returned by the Post Office (Tr. 89;  see, also, Tr. 78).
 
    5.  Mr. Spayd testified that, even though no response had been
 received from NTEU by September 14, he waited until September 16, "to
 see if something was mailed", and still having no response, called Mr.
 Victor G. Weeren, Director of Law Enforcement Liaison, on September 16
 and told him that "he could continue implementation, that implementation
 which was suspended during the notice period" (Tr. 77).  Mr. Spayd on
 the same date, September 16, "signed off" by initialing the yellow file
 copy (Tr. 60, 61).  Mr. Weeren testified that Mr. Spayd told him that,
 "the opportunity to bargain had expired and that apparently the Union
 chose not to bargain" (Tr. 95, 109).  Mr. Weeren further testified that
 with that news he "started the machinery in place to have it fully
 implemented" (Tr. 95).  This meant that this policy issuance first went
 to the issuance office to insure that it had the right format;  then to
 the Chief Counsel;  then to the Commissioner's Office for signature;
 and then to printing for printing and distribution (Tr. 95).  Mr. Weeren
 stated that this policy was urgent (Tr. 96, 97);  that it was signed by
 the Commissioner "within a week" after he received notification that
 "NTEU chose not to ask for bargaining" (Tr. 113), i.e., by, or about
 September 23, 1982.
 
    6.  Mr. Howard F. Swinimer, a Senior Customs Inspector at J. F.
 Kennedy Airport, while on assignment as Instructor at the U.S. Customs
 Academy, Federal Law Enforcement Training Center, Glynco, Georgia, on
 the evening of September 27, 1982, upon his return to Glynco, learned
 from associates of the CET policy which they understood was to go into
 effect October 1 (Tr. 32).  His associates had been shown a copy and had
 been told that "the Union had been notified and agreed to the manual
 supplement" (Tr. 32).
 
    7.  The following day, September 28, 1982, Mr. Swinimer testified
 that he obtained a copy of the CET policy and called Mr. John McEleney,
 Assistant Director of Negotiations for NTEU who handles labor relation
 for NTEU with Customs (Tr. 17), and asked if he were familiar with the
 Manual Supplement and whether he had received notice and had negotiated
 on it (Tr. 32-33).  Mr. Swinimer stated that Mr. McEleney stated that he
 had not received a copy of the Manual Supplement, that, so far as he
 knew, no one had but " . . . that he would check, he would ask around,
 check with other people in the office, see that it might have been
 misrouted or something . . ." (Tr. 33) and that he, McEleney would call
 back.  Mr. Swinimer stated that Mr. McEleney did call back later in the
 day and told him no one had any record of having received such a
 supplement.
 
    8.  Mr. Swinimer testified that he mailed Mr. McEleney a copy of the
 Manual Supplement on September 28 (Tr. 38).
 
    9.  Mr. McEleney testified that he first learned of the Manual
 Supplement when Mr. Swinimer called him on September 28.  There is no
 dispute that Mr. McEleney called Mr. Robert M. Smith;  but there is a
 dispute as to the date that he called Mr. Smith.  Mr. McEleney testified
 that he called Mr. Smith immediately after the call from Mr. Swinimer
 (Tr. 19).  Mr. McEleney stated that he called Mr. Smith and ". . . asked
 him if he knew of the supplement and why he hadn't received notice and
 an opportunity to bargain.  He explained to me . . . that they had
 notified us by letter sometime in August, that the letter had a specific
 date by which proposals should be received.  That date had come and
 gone.  And it was their position that we waived our right to bargain on
 it.  He told me that he didn't know whether they had been put into
 effect on October 1, but he would check and find out for me" (Tr.
 19-20).
 
    10.  Mr. McEleney further testified that after talking to Mr. Smith
 he ". . . checked about my office to be certain that there wasn't
 something that I overlooked and I didn't discover anything.  I then went
 down and spoke to Vincent Connery who is our national president and
 asked him if he had received a copy of the Manual Supplement that dealt
 with contraband enforcement and he told me that he had no recollection
 of that, and also checked some of his files to be certain it wasn't
 there . . ." (Tr. 20).  Mr. McEleney stated that he asked Mr. Smith to
 send him a copy" of the document as well as a cover letter that he said
 was attached to it" (Tr. 20), which Mr. Smith did (Tr. 20, 21).  Mr.
 McEleney stated that Mr. Smith called back, either late that day or
 first thing the next morning, ". . . and explained that the manual
 supplement was not issued, but he believed it was somewhere in the
 system and there wasn't any plans to have it implemented on October 1st.
  He said he didn't know when it would be implemented" (Tr. 21).
 
    11.  Mr. Smith testified that he received a call from Mr. McEleney on
 September 30 (Tr. 43, 51);  that he was sure of the date, "Because I
 wrote a note to the file when I received a call from Mr. McEleney" (Tr.
 44);  that Mr. McEleney, ". . . told me that he had been speaking to
 some of his regional people and that he had a copy of this policy and he
 was, wanted to know whether or not we had formally sent it to him . . .
 I told him that I would check, ran to the files, pulled out our file and
 read to him . . . the letter to Mr. Connery" (Tr. 44);  that "I think I
 put John on hold at the time, yes, and checked our records" (Tr. 51).
 Mr. Smith called Mr. Spayd and subsequently talked to Mr. McEleney and
 ". . . told John that the policy was on the way to the print shop for
 distribution and John again asked what can we do about this.  I really
 didn't know what we could do about it.  He didn't have any suggestions,
 nor did I and the conversation pretty much ended" (Tr. 45).  Mr. Smith
 stated, "When a policy is at the printer, it is implemented as soon as
 it comes off the presses.  As to a specific exact date, no, I didn't
 know that and I don't think anybody did" (Tr. 55);  " . . . I told him
 (Mr. McEleney) it was signed and at the printer" (Tr. 56).
 
    12.  Mr. Connery was asked about a conversation with Mr. John
 McEleney at "the end of September, 1982," and testified, in part, as
 follows:
 
          "A.  Well I recall a discussion and a subsequent brief time
       therein John called me, came down to tell me that he wanted to
       talk to me about a letter, asked me if I had received a letter
       which I had no recollection of receiving and we talked about the
       letter.  I told him that there was no letter around.  We made a
       look around the desk area, went all through one of the drawers of
       my desk where it might possibly have been.  That was it.
 
          "Q.  Do you know what the contents of the letter was that you
       were looking for?
 
          "A.  Well, John told me that there was some matter which I
       don't recall at this time.
 
          "Q.  Would that have been the contraband enforcement team
       policy?
 
          "A.  Yes.
 
          "Q.  And do you recall about when the conversation took place?
 
          "A.  Yes, it was in September of last year" (Tr. 138).
 
 After being handed Respondent's Exhibit 2 (erroneously referred to as
 Respondent's Exhibit 1 (Tr. 138)), Mr. Connery stated:
 
          ". . . I have no recollection of receiving this before" (Tr.
       139).
 
    13.  Mr. McEleney testified that in his conversation with Mr. Smith,
 either on September 28 or on September 30, he ". . . told him (Smith)
 that we were interested in bargaining, that we hand't waived anything
 inasmuch as we hadn't received the document" (Tr. 20A);  that sometime
 in the first part of October, he spoke to Mr. Spayd at the Holiday Inn
 in Georgetown and ". . . asked him if he was familiar with issuance and
 our request to bargain and if he knew the status and he said he wasn't
 aware of the situation.  He didn't know the status of the request.  He
 knew that the matter was being discussed but he wasn't deeply involved
 with it since he was involved primarily in negotiations of the national
 contract.  I asked him if he would check it out and let me know the
 status and he told me that he would" (Tr. 21-22);  that the following
 week, he again spoke to Mr. Spayd who again responded, ". . . that he
 didn't know, wasn't aware of what the decision was or if a decision had
 been made" (Tr. 22);  that he heard nothing further until October 26,
 1982, when he received a call from Mr. Smith who stated, " . . . they
 had decided they weren't going to bargain and that the manual supplement
 had been implemented on October 19th" (Tr. 22, 23).
 
                                CONCLUSIONS
 
    The record shows and I find that Respondent mailed the letter of
 notification (Res. Exh. 2) to President Connery on August 31, 1982, with
 a copy of the proposed Manual Supplement (G.C. Exh. 2).  When NTEU
 failed to request negotiations within the notice period (September 14,
 1982), Respondent, in accordance with established practice, proceeded
 with implementation.  Department of the Treasury, U.S. Customs Service,
 Region 1, Boston, Massachusetts, 1 FLRA No. 49, 1 FLRA 397 (1979)
 (hereinafter referred to as the "Region 1" case or decision), which
 arose under Executive Order 11491, as amended, involved not only the
 same parties-- Customs and NTEU-- but a strikingly similar issue,
 namely, timely notice mailed to the Union, no request for negotiations
 until after the proposed grooming standards had been implemented, and a
 denial of receipt of the notice letter by the Union.  In affirming the
 Administrative Law Judge's decision, that the Respondent had not
 violated sections 19(a)(1) and (6) of the Order when it issued new
 grooming standards, the Authority stated, in part, as follows:
 
          "In reaching our conclusion that issuance of the new grooming
       standards did not violate the Order, it is noted that the
       Respondent did all that could reasonably be expected in order to
       provide adequate, timely notice of the proposed new standards to
       the Union.  Thus, it precisely followed the Union's instructions
       and the past practice between the parties, in timely mailing
       notice of the proposed change to the Union's mailing notice of the
       proposed change to the Union's designated official in Washington,
       D.C." (1 FLRA at 339 n.1).
 
    I find the Region 1 decision persuasive.  Here, as in Region 1,
 Respondent did all that could reasonably be expected in order to provide
 adequate, timely notice of the CET policy to NTEU and followed the
 established past practice of sending the notice of nationwide policy
 issuances to President Connery.  (See, also, Res. Exh. 3, Art. 37,
 Section 3).  Issuance of a nationwide policy is immeasurably more
 complex than issuance of a policy change which is not so all
 encompassing.  Here, after the notice period to NTEU had expired and no
 request to negotiate (by the submission of written proposals, pursuant
 to Res. Exh. 3, Art. 37, Section 4) had been received, the policy first
 went to the issuance office, to insure that the format was proper;  then
 to the Chief Counsel;  then to the Commissioner for signature;  and then
 to printing for printing and distribution.  Prior to issuance, officials
 in the various Regions had to be advised.  As the CET policy had been
 signed by the Commissioner on, or about, September 23, 1982, and
 substantial expenditure of money was required for equipment for the
 Contraband Enforcement Teams, Respondent committed funds available to it
 from its 1982 budget.  I have weighed the testimony carefully and
 conclude that Mr. McEleney initially called Mr. Smith on September 30,
 1982, as Mr. Smith testified, rather than on September 28, 1982, as Mr.
 McEleney testified.  I reach this conclusion for several reasons.
 First, Mr. Smith's recollection of the date was supported by his written
 note to the file.  Second, Mr. Swinimer, who was a very credible
 witness, testified that he mailed a copy of the Manual Supplement (CET)
 to Mr. McEleney on September 28.  Third, Mr. McEleney made no reference
 to the Manual Supplement mailed to him by Mr. Swinimer.  Fourth, Mr.
 Smith very credibily testified that when Mr. McEleney called him on
 September 30, Mr. McEleney told him he "had a copy of the policy."
 Fifth, Mr. Connery's testimony is as consistent with one date as the
 other.  Sixth, Mr. McEleney's testimony as to the sequence of events is
 not wholly convincing.  Thus, in view of Mr. Swinimer's testimony that
 he had been told "the Union had been notified and agreed", which he
 relayed to Mr. McEleney, it is more logical that Mr. McEleney would have
 contacted President Connery prior to calling Mr. Smith, rather than
 after calling Mr. Smith, especially as Mr. Swinimer testified that Mr.
 McEleney called back and told him, "no one had any record of having
 received such a supplement."
 
    The record shows that Respondent committed FY 82 funds for equipment
 sometime after the CET policy issuance was signed and prior to the end
 of FY 82-- September 30, 1982.  As I find that Mr. McEleney initially
 called Mr. Smith on September 30, 1982, I conclude that all of the steps
 set forth above, including the expenditure of FY 82 funds, had occurred
 prior to Mr. McEleney's call. I fully understand that "implementation"
 means, and meant, different things to different people.  Thus, to Mr.
 Spayd, it meant signing-off by the labor-management relations office
 upon expiration of the notice period to NTEU without a request to
 negotiate.  To Respondent, it meant clearance to proceed with issuance
 of the policy, including signature by the Commissioner, the advising of
 Regional officials of the forthcoming issuance, commitment of funds,
 etc.  To NTEU it meant issuance.
 
    In partial agreement with Respondent, I conclude that Respondent did
 not violate Secs. 16(a)(5) or (1) of the Statute by the issuance, on
 October 16, 1982, of the CET policy (Jt. Exh. 1).  However, I do not
 agree with Respondent that it lawfully refused NTEU's request to
 negotiate impact and implementation pursuant to Sec. 6(b)(2) and/or (3),
 either because the policy had been substantially implemented prior to
 NTEU's request to negotiate or because NTEU did not, after notice of the
 proposed issuance, on September 28, 1982, when Mr. Swinimer called
 Mr.McEleney, submit written proposals.
 
    In short, I conclude that Respondent could, and did, lawfully issue
 the Manual Supplement with respect to its CET policy.  Respondent had
 taken all steps to implement this policy prior to NTEU's request to
 negotiate except formal issuance, which meant the fixing of an issuance
 date, printing and distribution.  Ordinarily, in full agreement with the
 established practice and the specific provision of the parties'
 agreement, /4/ I would concur with Respondent that NTEU did not perfect
 a proper impact bargaining request by submitting written proposals
 within a reasonable period after conceded notice, on September 28, 1982,
 of Respondent's CET policy (Respondent's Brief, pp. 26-27);  however,
 under the circumstances of this case I conclude that Respondent
 effectively precluded the submission of written proposals and
 accordingly, Respondent may not assert NTEU's failure to submit written
 proposals as a defense to its refusal to negotiate.  Thus, as Mr.
 McEleney testified, Mr. Smith told him on September 30 that, ". . . it
 was their (Respondent's) position that we (NTEU) waived our right to
 bargain on it" (Tr. 20).  Mr. Smith's testimony is wholly consistent and
 confirms Mr. McEleney's testimony.  Mr. Smith testified that he read to
 Mr. McEleney the letter to Mr. Connery;  that he called Mr. Spayd and ".
 . . we felt that we gave Mr. McEleney reasonable advance notice and an
 opportunity for bargaining and he did not request negotiations and there
 wasn't anything we could do.  It was out of our hands" (Tr. 46);  that
 after his first conversation with Mr. McEleney he talked to Mr. McEleney
 again and ". . . told John that the policy was on the way to the print
 shop for distribution and John again asked what can we do about this.  I
 really didn't know what we could do . . . .  He didn't have any
 suggestions, nor did I . . . " (Tr. 45).
 
    On September 30, 1982, when NTEU requested impact negotiations,
 Respondent had not issued the Manual Supplement relative to its CET
 policy and with notice that NTEU asserted that Respondent's notice of
 August 31, 1982, had not been received, Respondent refused to negotiate.
  Unlike the Region 1 case, Respondent's CET policy had not been fully
 implemented at the time NTEU demanded impact negotiations and
 Respondent's obligation to negotiate was neither satisfied nor
 extinguished by its notice of August 31, receipt of which NTEU
 specifically denied.  /5/ Upon notice of the non-receipt of the August
 31, 1982, notification, Respondent, prior to implementation of its CET
 Manual Supplement, was obligated to treat NTEU's demand to negotiate
 after actual notice, /6/ on September 28, 1982, as a timely demand to
 negotiate prior to implementation.  This, Respondent refused to do and
 asserted that NTEU had already waived its right to negotiate.  Because I
 find that Respondent had lawfully proceeded with implementation of its
 CET Manual Supplement, /7/ NTEU's right to negotiate on, and after,
 September 30, 1982, was more limited than if it had requested
 negotiations during the notice period.  NTEU must accept the CET Manual
 Supplement /8/ and its right to negotiate, and Respondent's obligation
 to negotiate, is limited essentially to "appropriate arrangements for
 employees adversely affected," pursuant to Sec. 6(b)(3) of the Statute,
 although there may also be "procedures which management . . . will
 observe," pursuant to Sec. 6(b)(2) of the Statute, subject to
 negotiation notwithstanding that the form of the Manual Supplement was a
 fait accompli as of September 30, 1982.  Although NTEU testified as to
 areas of interest in impact bargaining, no particular proposal was
 presented, and I express no opinion whatever concerning the
 appropriateness of any bargaining demand or of any expressed area of
 interest.
 
    Having found that Respondent refused to negotiate, prior to
 implementation, on impact of its CET Manual Supplement, after notice of
 the non-receipt of Respondent's prior notice, in violation of Secs.
 16(a)(5) and (1) of the Statute, it is recommended that the Authority
 issue the following:
 
                                   ORDER
 
    Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and
 Sec. 2423.29 of the Regulation, 5 C.F.R. 2423.29, the Authority hereby
 orders that the U.S. Customs Service shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to consult or negotiate in good faith with the
       National Treasury Employees Union concerning the impact of its
       National Inspectional Contraband Enforcement Team Policy, issued
       October 19, 1982, as Manual Supplement No. 3290-04.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing unit employees in the exercise of their
       rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request and perfection of an impact bargaining
       request, as required by the parties' current collective bargaining
       agreement, meet and consult or negotiate in good faith with the
       National Treasury Employees Union concerning the impact of its
       National Inspectional Contraband Enforcement Team Policy, issued
       October 19, 1982.
 
          (b) Post at each of its facilities, including its Headquarters
       Office in Washington, D.C. and each Regional Office, and at all
       places where notices to employees of the U.S. Customs Service are
       customarily posted, 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 the Commissioner, U.S.
       Customs Service, and they shall be posted and maintained for 60
       consecutive days thereafter in conspicuous places, including all
       places where notices to employees are customarily posted.  The
       Commissioner shall take reasonable steps to insure that such
       notices are not altered, defaced, or covered by any other
       material.
 
          (c) Pursuant to Sec. 2423.30 of the Regulation, 5 C.F.R.
       2423.30, notify the Regional Director of Region III, Federal Labor
       Relations Authority, whose address is:  1111 18th Street, NW.,
       Room 700, P.O. Box 33758, Washington, DC 20033-0758, in writing
       within 30 days from the date of this Order, as to what steps have
       been taken to comply herewith.
 
 
                                       William B. Devaney
                                       Administrative Law Judge
 
    Dated:  August 8, 1983
    Washington, DC
 
 
 
 
                          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 refuse to consult or negotiate in good faith with the
 National Treasury Employees Union concerning the impact of our National
 Inspectional Contraband Enforcement Team Policy, issued October 19,
 1982, as Manual Supplement No. 3290-04.
 
    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
 Statute.
 
    WE WILL, upon request and perfection of an impact bargaining request,
 as required by our current collective bargaining agreement, meet and
 consult or negotiate in good faith with the National Treasury Employees
 Union concerning the impact of our National Inspectional Contraband
 Enforcement Team Policy, issued October 19, 1982.
                                       (Agency or Activity)
 
    Dated:  By:  (Signature)
 
    This Notice must remain posted for sixty (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 any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region III,
 whose address is:  1111 18th Street, NW., Room 700, P.O. Box 33758,
 Washington, D.C. 20033-0758, and whose telephone number is:  (202)
 653-8507.
 
 
 
 
 
 
 --------------- 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--
 
          (1) 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/ 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., Sections 7116(a)(5) will be referred to,
 simply, as Sec. 16(a)(5).
 
 
    /3/ Respondent has filed a Motion to Correct Transcript, to which no
 opposition was filed, which I find wholly meritorious and hereby grant.
 The transcript is hereby corrected as fully set forth in the Appendix
 hereto.
 
 
    /4/ Article 37, Section 4, provides, in part, that:
 
          "If the union wishes to negotiate concerning the implementation
       or impact on employees of the proposed change(s), the union will
       submit written proposals to the employer within a reasonable
       period after notification of the proposed change(s) . . . ." (Res.
       Ex. 3).
 
    I am aware that the Agreement was effective June 30, 1980;  was for a
 term of 2 years;  and that, by its terms the Agreement expired June 30,
 1982;  however, as the Authority held in U.S. Nuclear Regulatory
 Commission, 6 FLRA No. 9, 6 FLRA 18 (1981),
 
          ". . . In the Authority's opinion, the purposes and policies of
       the Statute are best effectuated by a requirement that existing
       personnel policies, practices, and matters affecting working
       conditions continue, to the maximum extend possible, upon the
       expiration of a negotiated agreement, absent an express agreement
       to the contrary or unless modified in a manner consistent with the
       Statute.  Such a result fosters stability in Federal
       labor-management relations, which is an underlying purpose of the
       Statue . . . ." (6 FLRA at 20).
 
    See, also, Internal Revenue Service, Ogden Service Center, et al.
 FLRA Nos. 77A-40 and 77A-92, 6 FLRC 310 (1978).  General Counsel's
 contention that because Article 37 concerns permissive subjects of
 bargaining, Article 37 did not survive the expiration of the contract
 (Tr. 67), is rejected.  I am not aware of any Authority decision that
 has treated this question;  but I am aware that the Council in the Ogden
 Service Center, case, supra, did.  There, the Council stated, in part,
 as follows:
 
          "Of course, just as in the situation where no collective
       bargaining agreement has previously existed, agency management,
       upon the expiration of a negotiated agreement, retains the right
       to unilaterally change provisions contained therein relating to
       'permissive' subjects of bargaining, i.e., those matters which are
       excepted from the obligation to negotiate by section 11(b) of the
       Order, and either party may change matters which are outside the
       scope of such obligation under section 11(a) of the Order.
       Consequently, absent the parties' agreement to the contrary, the
       parties are not obligated to maintain those matters upon the
       expiration of the agreement.  (Footnote omitted) 6 FLRC at 319;
       see, also 6 FLRC at 321-322).
 
    Although I have serious reservations that Article 37 contains
 "permissive" subjects of bargaining within the meaning of Sec. 6(b)(1)
 of the Statute, and I expressly make no such determination, even if it
 were assumed that Article 37 constituted a permissive subject of
 bargaining and if it were further assumed that the Council's statement
 were applicable under the Statute, nevertheless, Mr. Spayd testified
 that, "Both sides have proposals to amend Article 37 at this time . . ."
 (Tr. 79) which does not indicate that either party had refused to
 maintain these provisions pending completion of negotiations.  To the
 contrary, Respondent testified that it was complying with all provisions
 of the Agreement, notwithstanding its expiration (Tr. 64), and Mr.
 McEleney, NTEU's Chief negotiator, presented no testimony to the
 contrary.  Nor, for that matter, neither Respondent nor NTEU presented
 any evidence or testimony concerning the notice given, i.e., whether to
 terminate the Agreement or to notify the agreement, (Article 40, Section
 B) or whether there was any written agreement to extend the agreement
 pursuant to Article 40, Section 2C.  Indeed, where, as here, the parties
 are renegotiating, as the Council also stated in Ogden Service Center,
 supra,
 
          ". . . a party may not effect changes in otherwise negotiable
       personnel policies and practices and matters affecting working
       conditions without first providing the other party with sufficient
       notice of its intent to implement the change . . . so that the
       other party is afforded a reasonable opportunity . . . to invoke
       the processes of the Panel . . . ." (6 FLRC at 332).
 
    Accordingly, since the parties had not negotiated to impasse,
 Respondent had not refused to bargain as to Article 37 because of any
 perceived management right, and NTEU had not given notice of its intent
 to implement any change of Article 37, NTEU could not unilaterally
 change the otherwise negotiable personnel policies and practices and
 matters affecting working conditions as described in Article 37.  I
 conclude that Article 37 continued, despite the expiration of the
 Agreement, until terminated or modified in a manner consistent with the
 Statute.
 
 
    /5/ Collective bargaining is a continuing process, Conley v. Gibson,
 355 U.S. 41 (1957), and, notwithstanding language of Judge Mason in the
 Region 1 case, I am not fully persuaded that the duty to bargain as to
 6(b)(3) is wholly extinguished by lawful implementation.  For example, a
 union might conclude that a proposed management action would have no
 adverse effect and, accordingly, decline to request negotiation;  but
 thereafter become aware of serious adverse impact and long after
 implementation and request negotiations.  cf., Library of Congress, 9
 FLRA No. 51, 9 FLRA 421 (1982);  Library of Congress, 9 FLRA No. 52, 9
 FLRA 427 (1982).  Nevertheless, I neither reach nor decide this issue,
 since, here, Respondent had not fully implemented its CET policy at the
 time NTEU demanded negotiations.  In accordance with the Region 1
 decision, I hold merely that Respondent satisfied its obligation to give
 timely notice by its notice of August 31, 1982, properly mailed to the
 designated official of NTEU;  but Respondent was obligated to negotiate,
 prior to issuance of the CET Manual Supplement, upon notice of
 nonreceipt of the August 31 notice and the demand of NTEU for
 negotiations.
 
 
    /6/ The manner of giving notice is, of course, wholly relegated to
 the parties.  In view of the continuing problems experienced by the
 parties, as evidenced by this case and by the Region 1 case, each party
 may be well advised to consider the mutual benefit of the use of
 registered mail, at least with respect to policy issuances having
 nationwide scope.
 
 
    /7/ Normally, the appropriate remedy for a refusal to negotiate prior
 to implementation (issuance) of a policy change would be withdrawal of
 the change.  I do not hold, nor should it be inferred by anyth