19:1155(128)CA - Treasury, Customs Service and NTEU and All NTEU Customs Chapters -- 1985 FLRAdec CA



[ v19 p1155 ]
19:1155(128)CA
The decision of the Authority follows:


 19 FLRA No. 128
 
 DEPARTMENT OF THE TREASURY
 U.S. CUSTOMS SERVICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND ALL NTEU CUSTOMS CHAPTERS
 Charging Party
 
                                            Case No. 3-CA-30376
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent 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 General Counsel and the Charging Party filed
 exceptions to the Judge's Decision.  The Respondent filed an opposition
 to those exceptions and also filed cross-exceptions to the Judge's
 Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order, except as modified
 herein.
 
    The complaint alleges, in substance, that the Department of Treasury,
 U.S. Customs Service, violated section 7116(a)(1) and (5) of the Statute
 by issuing and subsequently implementing a manual supplement entitled
 "Minimal Passenger Baggage Revenue Collections," without providing the
 Charging Party with adequate notice and an opportunity to negotiate over
 the procedures to be observed and concerning appropriate arrangements
 for employees adversely affected.
 
    The National Treasury Employees Union (NTEU) represents a unit of
 Respondent's professional and nonprofessional employees at the regional
 and Headquarters offices which has been nationally consolidated since
 1978.  The parties were signatories to a national collective bargaining
 agreement at all times material herein.  Although, following
 consolidation, the level of exclusive recognition was at the national
 level, the agreement provided that bargaining may take place at the
 regional or district level if a proposed change will only apply to that
 level.
 
    On December 17, 1982, the Commissioner of Customs issued Manual
 Supplement 3300-21, "Minimal Passenger Baggage Revenue Collections"
 (Supplement).  This Supplement was issued pursuant to the Respondent's
 review of revenue collections at major airports wherein it determined
 that the collection of insignificant revenue was not cost effective and
 was diverting resources from other important Customs' functions.  The
 Supplement directed each Regional Commissioner to "identify those
 passenger processing locations and operational situations where
 collection actions, that are potentially not cost-effective, should be
 terminated." Each Regional Commissioner identified certain locations and
 established a dollar amount below which collection of duty would be
 waived.  The implementation of the Supplement's directive was monitored
 by the Respondent's program manager.
 
    The Respondent did not have a nationwide policy regarding duty
 waivers prior to the Supplement, although certain airports had local
 policies.  NTEU was not notified at the national level in advance of the
 Supplement announcing a nationwide policy.  The Judge noted that the
 policy was implemented at approximately 25 airports.  Among other
 matters, as a result of the implementation, cashiers at two of these
 airports were not routinely called upon to perform overtime work as they
 had been in the past.  During overtime hours, the inspectors on duty
 performed the cashiers' functions.  /1/ The Judge further found that
 seven cashiers had lost a total of $16,436.50 in overtime earnings from
 the date of the Supplement's implementation to the date of the unfair
 labor practice hearing.
 
    The Judge, in essence, concluded that the Respondent's failure to
 notify NTEU at the national level and afford it the opportunity to
 request negotiations concerning the procedures to be used in the
 implementation of the Supplement and any appropriate arrangements for
 employees adversely affected thereby violated section 7116(a)(1) and (5)
 of the Statute.  He determined that the issuance of the Supplement
 constituted a change that had a reasonably foreseeable impact which was
 more than de minimis in that it might lead to reductions in overtime,
 reductions in force, or classification changes for cashiers.  He
 concluded that there was an actual impact, noting the loss in overtime.
 He also found that such losses were precipitated by the national
 Supplement and that any bargaining should have taken place at the
 national level.  Finally, he did not order a status quo ante remedy
 relying on the factors set forth in Federal Correctional Institution, 8
 FLRA 604 (1982), and further denied a request for a backpay award.  The
 Union filed exceptions to the Judge's failure to grant a status quo ante
 remedy.  The Respondent filed cross-exceptions arguing, inter alia, that
 the General Counsel had failed to establish that the issuance of the
 Supplement had more than a de minimis impact on conditions of employment
 of unit employees.
 
    There is no allegation or contention that the Agency owed a duty to
 the Union to negotiate over the substance of its decision to issue the
 Supplement and it is not at issue herein.  Rather, the complaint alleges
 a failure to bargain over procedures and arrangements for adversely
 affected employees resulting from such issuance pursuant to section
 7106(b)(2) and (3) of the Statute.  The Authority has held that "where
 an agency in exercising a management right under section 7106 of the
 Statute, changes conditions of employment . . ., the statutory duty to
 negotiate comes into play if the change results in an impact upon unit
 employees or such impact was reasonably foreseeable." See U.S.
 Government Printing Office, 13 FLRA 203, 204-05 (1983).  The Authority
 thereafter held that "no duty to bargain arises from the exercise of a
 management right that results in an impact or a reasonably foreseeable
 impact on bargaining unit employees which is no more than de minimis."
 See Department of Health and Human Services, Social Security
 Administration, Chicago Region, 15 FLRA No. 174 (1984).  The Authority
 has also held that in determining whether the impact or reasonably
 foreseeable impact of the exercise of a management right on bargaining
 unit employees is more than de minimis, the totality of the facts and
 circumstances presented in each case must be carefully examined.  Thus,
 in Department of Health and Human Services, Social Security
 Administration, Region V, Chicago, Illinois, 19 FLRA No. 101 (1985), the
 Authority looked to such factors as the nature of the change (e.g., the
 extent of the change in work duties, location, office space, hours, loss
 of benefits or wages and the like);  the temporary, recurring or
 permanent nature of the change (i.e., duration and frequency of the
 change affecting unit employees);  the number of employees affected or
 foreseeably affected by the change;  the size of the bargaining unit;
 and the extent to which the parties may have established through
 negotiations or past practice procedures and appropriate arrangements
 concerning analogous changes in the past.  /2/ The Authority also
 emphasized therein that the factors considered in the circumstances of
 that case were not intended to constitute an all-inclusive list or to be
 applied in a mechanistic fashion.  Moreover, the Authority noted that a
 determination as to whether the exercise of a management right under
 section 7106(a) of the Statute gives rise to a duty to bargain under
 section 7106(b)(2) and (3) will not necessarily require in every case a
 determination as to whether the exercise of the management right results
 in a change in a condition of employment having an impact or a
 reasonably foreseeable impact on bargaining unit employees which is more
 than de minimis, especially where there is no indication that the nature
 and degree of impact is at issue in the case.  However, in cases where
 it must be determined whether the nature and degree of impact is more
 than de minimis, factors such as those listed above will be considered.
 
    Turning to the instant case, the Authority finds, in agreement with
 the Judge's conclusion, and based upon the totality of the facts and
 circumstances presented, that the issuance of the Supplement did have an
 impact or a reasonably foreseeable impact on the conditions of
 employment of unit employees and that such impact or reasonably
 foreseeable impact was more than de minimis.  Therefore, the Respondent
 was obligated to notify the Union and bargain upon request over the
 procedures it would observe in exercising its section 7106 rights and
 concerning appropriate arrangements for adversely affected employees.
 In reaching this result, the Authority notes with respect to the nature
 of the change that issuance of the Supplement resulted in the
 elimination of overtime for cashiers at a number of airport locations
 and the loss of overtime earnings for such employees.  Additionally, and
 as found by the Judge, such a change had a reasonably foreseeable impact
 on unit employees in terms of potential reductions-in-force, reductions
 in overtime, classification changes and other changes in the assignment
 of work.  The duration of the change as it affected unit employees was
 permanent insofar as the Supplement directed termination of certain
 collection actions and its impact on unit employees was immediate.  As
 to the number of employees affected and the size of the bargaining unit,
 the record indicates that a number of employees at about 25 airport
 locations were affected out of the nationwide unit, and that
 implementation of the Supplement was to occur in each of the
 Respondent's regions, thereby foreseeably impacting on the entire
 classification of cashiers throughout the agency.  Finally, while there
 was a practice of waiving certain duty collections at a few airports,
 issuance of the Supplement created a new, nationwide policy concerning
 which the parties had not previously negotiated on a nationwide basis.
 Accordingly, based on the totality of the facts and circumstances
 presented, the Authority finds, in agreement with the Judge, that there
 was more than a de minimis impact on unit employees and that the
 Respondent was obligated to notify and bargain with the Union pursuant
 to section 7106(b)(2) and (3) of the Statute.
 
    As the issuance of the Supplement had more than a de minimis impact
 upon bargaining unit employees, the Authority concludes, in agreement
 with the Judge, that the Respondent's failure to give appropriate and
 timely notice at the level of exclusive recognition to the national
 representative before issuing and implementing the Supplement violated
 section 7116(a)(1) and (5) of the Statute.  The unit of employees
 represented by the Union in this case is a nationally consolidated unit.
  As such, the appropriate level of exclusive recognition is with the
 national Union.  See Department of Health and Human Services, Social
 Security Administration, 6 FLRA 202 (1981).  /3/
 
    The Authority also adopts the Judge's remedial conclusions with
 regard to the status quo ante and backpay requests.  Thus, balancing the
 nature and circumstances of the violation against the degree of
 disruption in the Respondent's operations that would be caused by such a
 remedy, and taking into consideration the factors set forth in Federal
 Correctional Institution, 8 FLRA 604 (1982), the Authority concludes
 that an order giving the employees' exclusive representative an
 opportunity to bargain concerning the procedures and arrangements for
 employees adversely affected will remedy the violation in this case and
 will effectuate the purposes and policies of the Statute.  In this
 regard, it is noted that a status quo ante remedy would disrupt or
 impair the efficiency of Respondent's operation since the purpose of the
 Supplement was to increase efficiency and to redirect resources to
 necessary functions.  Furthermore, under the circumstances of this case,
 it cannot be shown that, but for Respondent's refusal to negotiate
 concerning procedures and arrangements for employees adversely affected,
 the employees would have received the overtime earnings.  Thus, the
 Authority concludes that a backpay remedy is not warranted.  See, e.g.,
 Federal Aviation Administration, Northwest Mountain Region, Seattle,
 Washington and Federal Aviation Administration, Washington, D.C., 14
 FLRA 644 (1984).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Department of the Treasury, U.S. Customs Service, shall:
 
    1.  Cease and desist from:
 
    (a) Any further implementation of Manual Supplement No. 3300-21 of
 December 17, 1982, subject, "Minimal Passenger Baggage Revenue
 Collections," without first notifying the National Treasury Employees
 Union, the employees' exclusive representative, and affording it an
 opportunity to negotiate on (1) the procedures to be observed in any
 further implementation, and (2) appropriate arrangements for employees
 who have been, or may be, adversely affected by the implementation of
 the manual supplement.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Upon request by the National Treasury Employees Union, the
 employees' exclusive representative, negotiate concerning (1) the
 procedures to be observed in implementing Manual Supplement No. 3300-21
 of December 17, 1982, subject, "Minimal Passenger Baggage Revenue
 Collection," and (2) appropriate arrangements for employees who have
 been, or may be, adversely affected by the implementation of the manual
 supplement.
 
    (b) Post at all facilities wherein there are bargaining unit
 employees represented by the National Treasury Employees Union, 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, or a 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 insure 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, Washington, D.C., 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., August 30, 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 further implement Manual Supplement No. 3300-21 of December
 17, 1982, subject, "Minimal Passenger Baggage Revenue Collections,"
 without first notifying the National Treasury Employees Union, the
 employees' exclusive representative, and affording it an opportunity to
 negotiate on (1) the procedures to be observed in any further
 implementation, and (2) appropriate arrangements for employees who have
 been, or may be, adversely affected by the implementation of the manual
 supplement.  WE WILL NOT, in any like or related manner, interfere with,
 restrain, or coerce employees in the exercise of their rights assured by
 the Federal Service Labor-Management Relations Statute.  WE WILL, upon
 request by the National Treasury Employees Union, the employees'
 exclusive representative, negotiate concerning (1) the procedures to be
 observed in implementing Manual Supplement No. 3300-21 of December 17,
 1982, subject, "Minimal Passenger Baggage Revenue Collections," and (2)
 appropriate arrangements for employees who have been, or may be,
 adversely affected by the implementation of the manual supplement.
                                       (Agency or 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 of the Federal
 Labor Relations Authority, Region III, whose address is:  1111 18th
 Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C.  20033-0758
 and whose telephone number is:  (202) 653-8500.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 3-CA-30376
 
    Drew W. Hatcher, Esquire
       For the Respondent
 
    John McEleney, Esquire
       For the Charging Party
 
    Ana de la Torre, Esquire
    Bruce D. Rosenstein, Esquire
       For the General Counsel
 
    Before:  GARVIN LEE OLIVER
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region III, Federal Labor Relations Authority,
 Washington, D.C. against the Department of the Treasury, U.S. Customs
 Service (Customs or Respondent), based on a charge filed by the National
 Treasury Employees Union (NTEU) and all NTEU Customs Chapters (Charging
 Party, NTEU, or Union).  The complaint alleged, in substance, that
 Respondent violated sections 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute),
 by issuing and, subsequently, implementing a Manual Supplement titled,
 "Minimal Passenger Baggage Revenue Collections," without providing the
 Union with adequate notice and an opportunity to negotiate over the
 impact and procedures for implementation of the Manual Supplement.
 
    Respondent's answer admitted the jurisdictional allegations relating
 to the charge, the Union, and Respondent, but denied any violation of
 the Statute.
 
    A hearing was held in Washington, D.C.  The Respondent, Charging
 Party, and the General Counsel were represented by counsel and afforded
 full opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  The parties
 filed helpful briefs, and the proposed findings have been adopted in
 whole or in substance where found material and supported by the record
 as a whole.  Based on the entire record, /4/ including my observation of
 the witnesses and their demeanor, I make the following findings of fact,
 conclusions of law, and recommendations.
 
                             Findings of Fact
 
    The Customs Service is a primary national subdivision of the
 Department of the Treasury.  Its overall mission includes the collection
 of revenue on goods entering the United States, enforcement of laws
 which prohibit the importation of narcotics, and enforcement of
 currency, export control, and related laws.  (Tr. 59-60).  The Customs
 Service is divided into seven Regions, each headed by a Regional
 Commissioner.  The Regions are:  Northeast, New York, Southeast, South
 Central, Southwest, Pacific, and North Central (Tr. 60).
 
    An appropriate unit of Respondent's employees assigned to the above
 Regional Offices and at Headquarters, Washington, D.C., are exclusively
 represented for the purpose of collective bargaining and representation
 before Respondent by the Union.  The unit which the Union represents is
 a nationally consolidated unit which was consolidated in the latter part
 of 1978.  One of the primary effects of this national consolidation has
 been to raise the appropriate level of bargaining from the local or
 regional level to the national level of both parties (Tr. 20-21).
 
    The Union and the Respondent are signatories to a national collective
 bargaining agreement which became effective on June 30, 1980 and
 continues in effect.  The parties have provided in Article 37, Section 6
 of their National Agreement, as follows, as to the appropriate levels
 for negotiations related to impact bargaining whenever there is a
 proposed change in unit employees' working conditions:
 
          A. The parties agree that proposed changes which apply on a
       nationwide basis shall be negotiated at the National Office.
 
          B.  Proposed changes which apply only within one Region or the
       Headquarters office will be negotiated at the Regional, or
       Headquarters office, or upon mutual agreement, at another
       organizational office.
 
          C. Proposed changes which apply only to one District, Area,
       Headquarters Division or subdivision thereof will be negotiated at
       the District, Area, or Headquarters Division office or upon mutual
       agreement, at another organizational office.
 
          D.  Proposed changes which apply to more than one Region or the
       Headquarters office and one Region-- but are less than nationwide
       in application will be negotiated at the National office, or, upon
       mutual agreement, at the Regional office(s).  (Joint Exh. 3, p.
       220).
 
    The parties' national agreement also addresses in Article 22
 assignment of overtime work.  Section 2(A) of that Article recognizes
 that the "performance of assigned overtime is a condition of
 employment." Article 6 of the parties' national agreement titled
 "Protections Against Prohibited Personnel Practices" includes in Section
 1(B)(9) "a decision concerning pay" as a "personnel action." (Joint Exh.
 3, pp. 17, 132).
 
    In November 1982, Respondent's Office of Inspection and Control
 conducted a review of passenger baggage revenue collections at major
 airports and determined that inspectors were spending a great deal of
 time calculating and collecting insignificant amounts of monies.  The
 Office determined that this work was not cost effective and diverted
 resources from more important Customs functions, such as the
 interception of narcotics and other contraband.  (Tr. 74-75).
 Accordingly, on December 17, 1982, the Commissioner of Customs issued
 Manual Supplement 3300-21, "Minimal Passenger Baggage Revenue
 Collections." The manual supplement provided in part as follows:
 
          1.  PURPOSE
 
          To enhance the cost-effectiveness of Customs passenger baggage
       operations by redirecting resources involved in processing minimal
       collections, when the revenue return is insufficient to justify
       further processing and the passenger volume interferes with
       enforcement and facilitation imperatives.
 
          2.  BACKGROUND
 
          The processing of minimal collections from non-commercial
       passenger baggage has not been found to be cost-effective.
       Furthermore, resources expended in this pursuit affect our ability
       to obtain increased enforcement, facilitation and revenue returns.
        Customs managers require the flexibility to employ practical,
       cost-effective measures in dealing with specific operational
       situations.
 
          3.  ACTION
 
          In accordance with the provisions of 4 CFR 104.3(c), which
       permits the termination of collection activity when the cost of
       collection will exceed the amount recoverable, regional
       commissioners will identify those passenger processing locations
       and operational situations where collection actions, that are
       potentially not cost-effective, should be terminated.
 
          Any directive implementing this procedure should specify that
       the decision to terminate minimal non-commercial passenger baggage
       collection actions is made during or prior to the primary phase of
       inspection.  To ensure uniformity, the Customs Declaration (CF
       6059B) will be annotated "collection waived-- 4 CFR 104.3(c)." /5/
       (G.C. Exh. 2).
 
    The new Manual Supplement did not identify or designate the specific
 locations for the introduction of the new duty waiver policy, nor did it
 establish or set the amount of duty to be waived (Tr. 75).  Pursuant to
 the Manual Supplement, each of the seven Regional Commissioners of the
 Customs Service designated locations and established dollar amounts
 below which the collection of duty on passenger baggage would be waived
 (Tr. 77), 79, 89;  Joint Exh. 1 & 2).  John H. Heinrich, Program
 Manager, Office of Inspections and Control, monitored the implementation
 of the waiver policy by the Regional Offices (Tr. 76-77).
 
    Prior to the issuance of Manual Supplement 3300-21, Respondent did
 not have a nationwide policy regarding the waiving of collections of
 minimal amounts of revenue from baggage declarations.  However, local
 management at approximately seven airport locations had policies which
 permitted the waiver of small amounts (.04-$3).  Miami had a
 discretionary policy permitting the waiver of $10 or less when necessary
 to facilitate passenger processing.  (Tr. 78, 89;  G.C. Exh. 2;  Joint
 Exh. 1(1);  Joint Exh. 2(2)).
 
    Phillip Spayd, Director of Labor Relations for the Customs Service,
 reviewed the manual supplement prior to issuance and decided that it did
 not need to be sent to the national office of the Union.  He concluded
 that the manual supplement did not mandate any action or implementation
 and there would be nothing to bargain (Tr. 188-190).
 
    The NTEU National Office did not receive advance notice or an
 opportunity to bargain prior to the issuance of the Manual Supplement
 (Tr. 24, 188).  Instead, John McEleney, NTEU Director of Negotiations,
 first learned of the Manual Supplement from unit employees in various
 locations around the country.  These employees were concerned that
 implementation of the manual supplement would mean fewer cashiers and
 result in possible reductions in force, reduced overtime, or
 classification changes (Tr. 24-25).
 
    Beginning as early as January 28, 1983, the Pacific Region began its
 implementation of the Headquarters manual supplement with its issuance
 of a Regional Manual Supplement which established a $25.00 duty waiver
 (Tr. 170-171;  Jt. Exh. 1).  The Pacific Regional Supplement cited the
 Headquarters Manual Supplement 3300-21 of December 17, 1982 as its
 authority, and its purpose was stated to be:  "to implement Headquarters
 policy regarding the waiving of collections on passenger declarations
 where such collections are deemed not to be cost-effective" (Jt. Exh.
 1).
 
    Honolulu
 
    Following instructions from the Pacific Regional Office to begin
 implementation of a $25.00 waiver, Respondent, at the Honolulu Airport,
 instructed the cashiers stationed there to review duty collections made
 during four days in January, 1983 (Resp. Exh. No. 11 and Tr. 172-175).
 On February 19, 1983, Lawrence Barone, the Chief at Honolulu Airport,
 notified the local Chapter 151 Union President, Neal Yoshimura, of
 Respondent's intention to effect implementation of Headquarters Manual
 Supplement 3300-21 and Regional Supplement 3113-04.  The Union was told
 that the impact of this implementation would entail "changes to the
 cashier call out procedure effective Sunday, February 27, 1983.  From
 that date on cashiers will no longer be called out for scheduled CO, CPA
 and SPIA flights arriving during overtime periods." (Resp. Exh. No. 12;
 Tr. 176-177).
 
    The local Chapter 151 Union Vice-President, Richard Tannahill,
 replied to Barone on March 19, 1983 requesting a delay in the newly
 established March 21, 1983 implementation date in view of the filing by
 the Union of an unfair labor practice charge.  (Resp. Exh. No. 13).
 
    On March 21, 1983, Barone issued orders effective that day changing
 the call out policy for cashiers at Honolulu Airport by establishing
 that cashiers would no longer be routinely called to work overtime /6/
 between the hours of 1700 to 0600 hours (Resp. Exh. No. 14).  As a
 result of this action, Joyce Yoda had an overtime earnings reduction of
 $2,624.40 from March 21, 1983 through September 21, 1983;  Jean Kawamura
 lost $2,273.92 from March 22, 1983 through September 20, 1983;  Florence
 Murata had an overtime earnings reduction of $2,574.88 from March 30,
 1983 through August 30, 1983;  and Ms. Jean Tokunaga lost $2,574.88 from
 March 30, 1983 through September 20, 1983 (Jt. Exh. 1).  During the
 period when no cashier was on duty, any required collections were made
 by the inspectors (Tr. 170, 180).
 
    Minneapolis
 
    On or about the afternoon of February 9, 1983, one month before the
 North Central Regional Manual Supplement would issue on March 9, 1983,
 implementing the Headquarters Manual Supplement, the Minneapolis
 District Director informed Customs management personnel at the
 Minneapolis Airport to immediately implement the policy of the national
 manual supplement by not collecting under $10.00 or less (Tr. 136, 143
 and Jt. Exh. 2).  Customs management personnel at the airport realized
 that implementation of such an order would significantly impact upon
 excess baggage duty collections then being made and upon the overtime
 the cashiers were then working (Tr. 137;  143-144).  Consequently,
 Donald E. Jokinen, Chief Inspector, notified the chief steward for NTEU,
 Herman Kelgenberg, of these new orders and arranged a meeting with him.
 (Tr. 136-137 and 143-144).  Kelgenberg was the Union official normally
 contacted by Jokinen concerning the implementation of local airport
 changes (Tr. 147-148).  No efforts were made to contact the local
 (Chapter 170) Union President, John Schmahl, regarding this matter (Tr.
 145).
 
    At the meeting, management representatives and chief steward
 Kelgenberg discussed the national manual supplement and the parties
 signed a document indicating that agreement had been reached on how the
 duty waiver policy would be implemented at the airport (Tr. 137,
 139-141;  Resp. Exh. 7).  The principal change brought about by the
 agreement was that cashier/aides would not normally be called out to
 service flights arriving during the overtime period between 5:00 p.m.
 and 8:00 a.m. (Tr. 133-134, 137, 139, 142).  Any required collections
 thereafter were made by the inspectors on duty (Tr. 133).
 
    A few days thereafter, on February 14, 1983, Mr. Schmahl, the local
 union president, wrote to the District Supervisory Customs Inspector
 disavowing any "agreement" and "negotiations which took place on
 February 9, 1983" (G.C. Exh. No. 4).  The letter claimed that the $10.00
 waiver had regional, if not national, impact and that the national
 headquarters of NTEU would be requesting bargaining.  (G.C. Exh. 4).
 
    Three cashiers, Zelda Christian, Ione M. Olson, and Darlene Bulov,
 who had in the past worked overtime making excess baggage duty
 collections at the Minneapolis Airport immediately experienced reduced
 overtime earnings.  (Tr. 142, 144 and Jt. Exh. No. 2).  From February 9,
 1983, through September 30, 1983, these cashiers were not assigned to
 work overtime on approximately 127 flights that they would have had the
 opportunity to work prior to the change.  They lost $6,388.42 in
 traditional overtime earnings (Tr. 142, 144 and Jt. Exh. No. 2).
 
    Chicago
 
    Chicago's O'Hare Airport is also part of the North Central Region and
 became subject to the same Regional efforts to implement the
 Headquarters Manual Supplement as was experienced at the Minneapolis
 Airport (Jt. Exh. No. 2(1);  Tr. 160).  Instructions for implementation
 of the duty waiver were received in Chicago on or about February 14,
 1983, initially establishing a $25.00 waiver (Tr. 154;  159-160).
 Implementation of that policy at Chicago O'Hare airport took effect on
 or about February 14, 1983.  However, the one cashier at O'Hare did not
 experience any change in overtime assignments or loss of overtime
 earnings as a result of the implementation (Tr. 154-157).
 
    Miami
 
    From March 6, 1981, to February 10, 1983, Miami International Airport
 had a local discretionary waiver policy in effect whereby Customs
 Inspectors were authorized to waive the collection of duty and taxes
 when the combined amount was under $10.00.  The purpose of the
 discretionary waiver was to facilitate the passenger processing flow.
 Supervisors exercised a great deal of discretion.  If the airport was
 full, supervisors would make sure lesser amounts were not collected.  If
 the airport was only moderately full, the duty was collected.  (Tr. 102,
 126-127;  195-196;  Resp. Exh. 6).  Prior to March 1983, the largest
 volume of duty came from collections of amounts under $10.00 (Tr. 197).
 
    On February 10, 1983, the Southeast Region, of which Miami
 International Airport is a part, issued orders implementing the
 Headquarters Manual Supplement by enacting a $10.00 excess baggage duty
 waiver (Tr. 98;  G.C. Exh. No. 3).  The Southeast Region Telex
 instructed the Regions that revenue collections less than $10.00 "will
 be waived" and, in apparent reference and conformance with the
 annotation instructions of the Headquarters Manual Supplement,
 instructed the local airports that "Customs Declarations (CF-6059 B)
 will be annotated 'collection waiver-- 4 CFR 104.3(c)' when a waiver is
 granted."
 
    At about the same time the mandatory policy waiver directive was
 implemented in Miami, there also occurred a change in the amount of
 overtime assignments and earnings by cashiers as a result of a decision
 made by local airport management in March 1983 to make call-out
 assignment policy more compatible with the logistics of the airport and
 the arrival of flights.  (Tr. 110).
 
    Prior to this change in assignment policy, cashiers were routinely
 called out on overtime at 5:45 a.m. with inspectors and supervisors as
 part of the Customs team assigned to service Pan Am Flight 440 arriving
 from South America (Tr. 110).  Cashiers earned 3 overtime periods for
 working from 5:45 a.m. to 8:00 a.m. when the regular shift began.  One
 overtime period was earned for working the two hours from 6:00 a.m. to
 8:00 a.m. and two overtime periods were earned for the 15 minutes from
 5:45 a.m. to 6:00 a.m.  Under the 1911 overtime law, employees called
 out before 6:00 a.m. earn two overtime periods if they work any part of
 an hour (Tr. 41).
 
    Customs officials decided that since the distance between the
 international arrival area and the Customs area in the airport satellite
 building was more than a mile, it was virtually impossible for
 passengers to disembark the plane, clear immigration, pick up baggage,
 go to the Customs area, have an inspector calculate the duty, and be
 referred to a cashier all before 6:00 a.m.  Therefore, Customs officials
 decided it would be more prudent and cost-effective to assign cashiers
 at 6:00 a.m. instead of 5:45 a.m., the scheduled arrival time for Pan Am
 Flight 440.  (Tr. 110-112).
 
    After this change in March 1983, Mr. Johnson and the two other
 employees performing the cashier function at MIA frequently earned only
 one overtime period for working between 6:00 a.m. and 8:00 a.m. instead
 of three overtime periods they had earned when called out at 5:45 a.m.
 For example, after the change Mr. Ronald Johnson earned $28.28 for one
 overtime period instead of $84.84 for three overtime periods.  /7/ The
 change in assignment policy covered Customs inspectors as well.  Instead
 of calling out 10 inspectors at 5:45 a.m., after the policy change, only
 two inspectors were called at 5:45 a.m. (Tr. 111).
 
    The manual supplement was implemented at approximately 21 other
 locations (Tr. 79).  The record does not reflect any specific impact on
 conditions of employment at these locations.
 
                Discussion, Conclusions and Recommendations
 
    The initial issues presented for determination are (1) whether
 issuance of the manual supplement had an impact or reasonably
 foreseeable impact on the conditions of employment of unit employees,
 and (2) if so, whether Respondent's negotiations with local Union
 officials in Honolulu and Minneapolis fulfilled its obligations under
 the Statute.
 
    The Authority has emphasized that where an agency is exercising a
 management right under section 7106 of the Statute, changes conditions
 of employment of unit employees, the statutory duty to negotiate comes
 into play if the change results in an impact upon unit employees or such
 impact was reasonably foreseeable.  U.S. Government Printing Office and
 Joint Council of Unions, GPO, 13 FLRA No. 39, 13 FLRA 203 (1983).  I
 conclude that issuance of the manual supplement here did have a
 reasonably foreseeable impact on the conditions of employment of unit
 employees.  A nationwide policy regarding the waiving of collections of
 minimal amounts of revenue from baggage declarations did not exist prior
 to issuance of the manual supplement.  Thus, the institution of such a
 policy represented a change.  The expressed purpose of the issuance was
 to "redirect resources" involved in processing minimal passenger baggage
 revenue collections.  The determination was made that such processing
 "has not been found to be cost-effective." Regional commissioners were
 directed to "identify those passenger processing locations and
 operational situations where collection actions, that are potentially
 not cost-effective, should be terminated." The regions were expected to
 implement the policy, and the implementation was monitored from Customs
 headquarters.  Since no revenue was to be collected in such situations,
 and resources were to be "redirected," it was reasonable to anticipate a
 decrease in the volume of work for cashiers which could lead to
 reductions in overtime, reductions in force, or classification changes
 among the cashiers and other changes in the assignment of work.  The
 record shows that some unit employees did lose overtime following the
 issuance of the manual supplement and that such loss was precipitated by
 the manual supplement.  Thus, management's action had an impact on unit
 employees and, in addition, it was reasonably foreseeable that the
 issuance of the manual supplement would have an impact on the conditions
 of employment of unit employees which was more than de minimus.
 Therefore, Respondent was required to provide adequate prior notice of
 its decision to the exclusive representative of its employees so as to
 provide an opportunity to negotiate concerning the procedures to be
 followed in implementing the decision (section 7106(b)(2) or appropriate
 arrangements for adversely affected employees (section 7106(b)(3)).
 
    The Authority has held that following a certification for a
 consolidated unit, the appropriate unit then established for bargaining
 is at the national level.  Department of Health and Human Services,
 Social Security Administration, 6 FLRA 202 (1981).  The Statute provides
 in section 7103(a)(12) that collective bargaining over conditions of
 employment is a mutual obligation that exists between "the
 representative of an Agency and the exclusive representative of
 employees in an appropriate unit . . .." Thus, the legal effect of
 national unit consolidation is to terminate the local union's existence
 as the exclusive representative and the appropriate unit for bargaining
 and replace it with the national union.  American Federation of
 Government Employees, Local 1164, AFL-CIO and the Social Security
 Administration, 6 FLRA 324 (1981).
 
    Parties to a collective bargaining agreement may, of course, agree to
 negotiations at a level below the level of exclusive recognition.  Here,
 the parties did agree to such a provision making bargaining appropriate
 at a sub-level when the change in working conditions is local and thus
 will "apply only within one Region." However, the record has established
 that the duty waiver applied to more than one Region.  As noted, Customs
 headquarters did not merely advise the Regions to consider terminating
 the collection of minimal passenger baggage revenue, but, in effect,
 directed them to take action to terminate minimal collections.  Cf.
 Kansas Army National Guard and National Guard Bureau, 10 FLRA 303, 10
 FLRA No. 56 (1982).  The role of the Regions was limited to taking
 actions to implement the headquarters directive, i.e. to identify those
 locations within their Regions where collection actions should be
 terminated in accordance with the national policy.  Cf. Department of
 Health and Human Services, Social Security Administration, 10 FLRA 77,
 10 FLRA No. 20 (1982).  Customs headquarters monitored the
 implementation, and the seven Regions took steps to comply with the
 headquarters mandate.  Accordingly, the change clearly involved more
 than one region.  In my view, there is no legitimate issue of an
 arguable interpretation of Article 37 of the agreement on the theory
 that bargaining only became appropriate when the Regions identified the
 locations and set the amounts of the waiver.  The local union chapters
 herein were not the appropriate units for bargaining over this
 headquarters policy which had nationwide impact.  Thus, any notice or
 negotiations which may have occurred at the local level was without
 legal significance.  In fact, this type of conduct, where the agency
 refuses to provide notice and engage in negotiations at the level of
 exclusive recognition and where the local activities below the level of
 exclusive recognition attempt to engage the local unions in
 negotiations, has previously been found by the Authority to have
 "undermined the very purpose of consolidation", thereby causing a
 violation of section 7116(a)(1) and (5) of the Statute.  Social Security
 Administration, 11 FLRA No. 76, 11 FLRA 390, 409 (1983).  Respondent's
 failure to give appropriate and timely notice at the level of exclusive
 recognition before issuing and implementing the manual supplement
 violated section 7116(a)(1) and (5) of the Statute, as alleged.
 Department of Health and Human Services, Social Security Administration,
 10 FLRA 77, 10 FLRA No. 20 (1982);  Department of the Interior, U.S.
 Geological Survey, Conservation Division, Gulf of Mexico Region,
 Metairie, Louisiana, 9 FLRA 543, 9 FLRA No. 65 (1982).
 
    Balancing the nature and circumstances of the violation against the
 degree of disruption in government operations that would be caused by a
 status quo ante remedy, and taking into consideration the various
 factors set forth in Federal Correctional Institution, 8 FLRA No. 111
 (1982), including the requirement that the Act be interpreted in a
 manner consistent with the requirement of an effective and efficient
 Government, it is concluded that an order requiring the Respondent to
 bargain upon request about impact and implementation will best
 effectuate the purposes and policies of the Statute.  A status quo ante
 remedy would seriously disrupt the efficiency of Customs operations
 since one purpose of the manual supplement was to redirect resources to
 more important law enforcement functions.  A status quo remedy would
 also increase costs assessed against airlines at the affected airports.
 
    The General Counsel and the Charging Party also request a backpay
 award for those employees who lost the opportunity to work overtime
 following the unilateral implementation of the manual supplement.  The
 record does reflect the actual amount of overtime lost by employees at
 the Honolulu and Minneapolis locations.  Inasmuch as it has not been
 established herein that, but for the Respondent's improper refusal to
 negotiate over the impact and implementation of the manual supplement,
 the employees would not have suffered a loss of pay, recent Authority
 precedent does not allow for an award of backpay under the Backpay Act,
 5 U.S.C. 5596.  See Federal Aviation Administration, Northwest Mountain
 Region, Seattle, Washington, 14 FLRA No. 89, 14 FLRA 644, 649-650
 (1984);  Department of the Air Force, Air Force Systems Command,
 Electronic Systems Division, 14 FLRA No. 63, 14 FLRA 390, 392 (1984).
 But see United States Department of the Treasury, Internal Revenue
 Service, Dallas District, 13 FLRA No. 82, 13 FLRA 459 (1983).
 
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Order:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Department of the Treasury, U.S.
 Customs Service shall:
 
          1.  Cease and desist from:
 
          (a) Any further implementation of Manual Supplement No. 3300-21
       of December 17, 1982, subject, "Minimal Passenger Baggage Revenue
       Collections," without first notifying the National Treasury
       Employees Union, the employees' exclusive representative, and
       affording it an opportunity to negotiate on (1) the procedures to
       be observed in any further implementation, and (2) appropriate
       arrangements for employees who have been, or may be, adversely
       affected by the implementation of the manual supplement.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
          2.  Take the following affirmative action in order to
       effectuate the purposes and policies of the Statute.
 
          (a) Upon request by the National Treasury Employees Union, the
       employees' exclusive representative, negotiate concerning (1) the
       procedures to be observed in implementing Manual Supplement No.
       3300-21 of December 17, 1982, subject, "Minimal Passenger Baggage
       Revenue Collection," and (2) appropriate arrangements for
       employees who have been, or may be, adversely affected by the
       implementation of the manual supplement.
 
          (b) Post at all facilities wherein there are bargaining unit
       employees represented by the National Treasury Employees Union
       copies of the attached Notice marked "Appendix" on forms to be
       furnished by the Authority.  Upon receipt of such forms, they
       shall be signed by the Commissioner, 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 insure that such notices are not altered,
       defaced, or covered by any other material.
 
          (c) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director,
       Region III, Federal Labor Relations Authority, Washington, D.C.,
       in writing, within 30 days from the date of this order, as to what
       steps have been taken to comply herewith.
 
                                       GARVIN LEE OLIVER
                                       Administrative Law Judge
 
 Dated:  July 12, 1984
         Washington, D.C.
 
 
 
                                APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT further implement Manual Supplement No. 3300-21 of December
 17, 1982, subject, "Minimal Passenger Baggage Revenue Collections,"
 without first notifying the National Treasury Employees Union, the
 employees' exclusive representative, and affording it an opportunity to
 negotiate on (1) the procedures to be observed in any further
 implementation, and (2) appropriate arrangements for employees who have
 been, or may be, adversely affected by the implementation of the manual
 supplement.  WE WILL NOT in any like or related manner, interfere with,
 restrain, or coerce employees in the exercise of their rights assured by
 the Federal Service Labor-Management Relations Statute.  WE WILL, upon
 request by the National Treasury Employees Union, the employees'
 exclusive representative, negotiate concerning (1) the procedures to be
 observed in implementing Manual Supplement No. 3300-21 of December 17,
 1982, subject, "Minimal Passenger Baggage Revenue Collections," and (2)
 appropriate arrangements for employees who have been, or may be,
 adversely affected by the implementation of the manual supplement.
                                       (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 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, N.W., Suite 700, Post Office Box 33758, Washington,
 D.C. 20033-0758 and whose telephone number is:  (202) 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The General Counsel excepted, in part, to the Judge's failure to
 find that inspectors at the Miami airport performed a Cashier's function
 when no cashier was on duty.  This finding was made in regard to the
 Honolulu and Minneapolis airports.  The Authority finds no error in the
 Judge's findings of fact.  As the Supplement was not responsible for the
 loss of overtime earnings at the Miami airport, it was not necessary to
 determine whether the inspectors performed cashiers' functions.
 
 
    /2/ Additionally, Member McGinnis indicated in a separate concurring
 opinion that he would also consider, in determining de minimis issues,
 when the implementation of a change would involve or adversely affect
 unit employees in assessing the totality of the facts and circumstances
 presented.
 
 
    /3/ Though the parties could agree to allow negotiations at a level
 below the level of exclusive recognition, id. at 204 n. 2, and though
 the parties in the instant case did agree to local negotiations if a
 proposed change only applied at the local level, the Authority agrees
 with the Judge's conclusion that the proposed change here