24:0773(76)CA - Customs Service, Washington, DC and NTEU -- 1986 FLRAdec CA



[ v24 p773 ]
24:0773(76)CA
The decision of the Authority follows:


 24 FLRA No. 76
 
 U.S. CUSTOMS SERVICE 
 WASHINGTON, D.C.
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 9-CA-50404
 
                     DECISION AND ORDER REMANDING CASE
 
    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 Respondent filed exceptions to the
 Judge's Decision and the Charging Party filed a response to the
 Respondent's exceptions.  /*/
 
    We adopt the Judge's conclusion that the temporary details of
 employees Beebe and Thomas were based upon their participation in
 protected activities and that the reasons given by the Respondent for
 the details were pretextual.  Therefore, we adopt his conclusion that
 the Respondent's conduct constituted a violation of section 7116(a)(1)
 and (2) of the Federal Service Labor-Management Relations Statute (the
 Statute), as alleged in the complaint.
 
    The Judge, in addition to a cease and desist order, recommended that
 the Respondent be ordered to make whole employees Beebe and Thomas for
 any loss of overtime pay they would have earned but for their temporary
 details.  As the Authority has previously held, in order for backpay to
 be authorized under the Back Pay Act, 5 U.S.C. Section 5596, there must
 be a determination not only that an employee has been adversely affected
 by an unjustified or unwarranted personnel action, but also that but for
 the improper action the employee would not have suffered a loss or
 reduction in pay, allowances, or differentials.  Federal Aviation
 Administration, Northwest Mountain Region, Seattle, Washington and
 Federal Aviation Administration, Washington, D.C., 14 FLRA 644 (1984).
 
    In this case, the Judge made his recommendation without applying the
 test.  It is not clear from the record before us whether the Judge's
 recommendation meets the required standard.
 
    Accordingly, we remand this case to the Judge for the limited purpose
 of applying the standard to the facts of this case to determine, based
 on the existing record, whether backpay is warranted.
 
                                   ORDER
 
    The complaint in Case No. 9-CA-50404 is remanded for action
 consistent with the above.
 
    Issued, Washington, D.C., December 23, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 9-CA-50404
 
    U.S. CUSTOMS SERVICE, WASHINGTON, D.C.
         Respondent
 
                                and
 
    NATIONAL TREASURY EMPLOYEES UNION
         Charging Party
 
    R. Timothy Shiels, Esquire
    For the General Counsel
 
    Patricia Olson, Esquire
    For the Respondent
 
    William Corman, Esquire
    For the Charging Party
 
    Before:  BURTON S. STERNBURG
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101 et seq. and the Rules and Regulations issued thereunder.
 
    Pursuant to an amended charge first filed on August 22, 1985, by the
 National Treasury Employees Union (hereinafter called the NTEU or
 Union), a Complaint and Notice of Hearing was issued on October 18,
 1985, by the Regional Director for Region IX, Federal Labor Relations
 Authority, San Francisco, California.  The Complaint alleges that the
 U.S. Customs Service, Washington, D.C. (hereinafter called the
 Respondent or Customs), violated Sections 7116(a)(1) and (2) of the
 Federal Service Labor-Management Relations Statute (hereinafter called
 the Statute), by temporarily transferring unit employees Loran Beebe and
 Donald Thomas to different work locations because they had filed
 grievances against Respondent under the negotiated grievance procedure.
 
    A hearing was held in the captioned matter on November 18, 1985, in
 Seattle, Washington.  All parties were afforded the opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel and the
 Respondent submitted post-hearing briefs on December 18, 1985, which
 have been duly considered.  /1/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions, and recommendations.
 
                             Findings of Fact
 
    The NTEU has been the exclusive representative in a nationwide
 consolidated unit of the Respondent's employees.  The unit includes,
 among other employees, the custom inspectors working in the various
 ports within Respondent's Seattle, Washington District.
 
    At all times material herein the NTEU and the Respondent have been
 parties to a collective bargaining agreement which contains a negotiated
 grievance procedure applicable to unit employees.
 
    Mr. Loren Beebe, one of the alleged discriminatees, has worked in the
 Seattle District's Anacortes port as an inspector since 1971.  He has
 served as president of the Seattle Chapter of NTEU.  His most recent
 participation in protected activities was in connection with grievances
 challenging the Respondent's failure to award him overtime work during
 the fiscal year 1984.  In February 1985, the NTEU elevated one of his
 grievances to arbitration.  /2/ The grievance challenged Respondent's
 staffing practice at the Anacortes port which resulted in Mr. Beebe
 being deprived of overtime work opportunities.  In addition to the
 grievance which was elevated to arbitration, Mr. Beebe filed 21
 additional grievances between June 25 and July 31, 1985, contending that
 he has lost overtime work opportunities because of the use of
 intermittent inspectors.  These latter grievances are currently at the
 second step of the grievance procedure, awaiting a decision by District
 Director Robert Hardy.
 
    Mr. Donald Thomas, the other alleged discriminiatee, has worked in
 the District's Seattle port for the past 12 years.  He has formerly been
 the Chief Steward for the Seattle Chapter of the NTEU.  Like Mr. Beebe,
 he felt that his overtime earning for the 1984 fiscal year had been
 improperly limited by Respondent and, like Mr. Beebe, he filed a
 grievance concerning such limitation.  In April 1985 the NTEU invoked
 arbitration on Mr. Thomas' grievance.  Subsequently, in October 1985,
 the parties entered into a settlement of the grievance, wherein the
 Respondent agreed to pay Mr. Thomas the sum of $820.96.  Mr. Robert
 Hardy, the District Director, served as the hearing official at the
 second step of the grievance procedure on Mr. Thomas' grievance.
 
    In connection with the filing of grievances by other employees within
 the unit, the only evidence bearing thereon appears in the testimony of
 Mr. Robert Hardy and Senior Customs Inspector Gerald Bergquist.  Thus,
 Mr. Hardy testified that "lots of other inspectors" have filed
 grievances, "fifty percent" of which "concerned the denial of overtime."
 Mr. Bergquist, who was currently at the Harbour Island Port testified
 that he filed a grievance in August of 1985 concerning the "denial of
 overtime assignment." The grievance at the time of the hearing herein
 was at the 3rd step of the grievance procedure.
 
    Other than the grievances of Mr. Beebe and Mr. Thomas, there is no
 record evidence indicating that any other grievances had been elevated
 to the final step of the grievance procedure, i.e. arbitration.
 
    The record further reveals that overtime earnings represent a
 considerable portion of a custom inspector's income.  Each year an
 inspector is entitled to earn up to $25,000 in overtime, a figure that
 is calculated on the fiscal year ending on September 30.  Both Mr. Beebe
 and Mr. Thomas are high overtime earners.  Thus, as of early September,
 1985, Mr. Beebe had earned approximately $19,000 to $20,000 in overtime
 while Mr. Thomas had earned approximately $23,500 in overtime wages.
 
    In order to insure that no inspector exceeds the $25,000 statutory
 overtime "cap" the Seattle District keeps daily records of each
 inspector's overtime earnings, using a daily "cap" of $68 to gauge the
 pace of each inspector's overtime earnings, since $68 x 365 equals
 $24,820, approximately the yearly salary overtime "cap." As a
 consequence, an inspector's opportunity to earn overtime increases as
 the year progresses.  Thus, the first day of the fiscal year an
 inspector is not allowed to earn more than $68 in overtime.  The second
 day, assuming that he has not worked overtime, his daily cap would have
 doubled to $136.  The record further indicates that overtime
 opportunities in the Seattle District increase as the fiscal year
 progresses because the District's busiest season begins in June, with
 August and September the last two months of the fiscal year, being the
 busiest months.
 
    The Seattle District overtime assignments are made on a daily basis.
 Each day an inspector informs his supervisor as to whether he wants to
 work overtime that day, making himself either "available" or "not
 available." The assignments are then distributed inversely to the
 inspectors' cumulative overtime overtime earnings, that is, the top
 earner is at the bottom of the list.
 
    Every two weeks the Respondent issues a "1911 Overtime Report" for
 each inspector, showing the inspector's overtime assignments and his
 overtime earnings for that two week period.  The report also shows the
 port where the inspector worked during that two weeks and the
 inspector's hourly overtime rate, a rate that remains the same
 regardless of the port where the inspector maybe working.
 
    During July and August, 1985, while NTEU was pushing Mr. Beebe and
 Mr. Thomas' arbitrations and while Mr. Beebe was filing his new overtime
 grievances, Mr. Robert Hardy instituted an "inter-port awareness
 program," which eventually sent Mr. Beebe and Mr. Thomas on temporary
 assignments.  The program, announced in an August 2, 1985 memo, called
 for the detailing of inspectors to different ports to enhance their
 experience and to promote uniformity within Respondent's Seattle
 District.  Mr. Beebe was temporarily traded for Charles Bowen of the
 Seattle port, while Mr. Thomas was traded for Bruce Hasselbrock of the
 Blaine port.  The assignments began on September 3, 1985 and lasted
 three weeks.  /3/ These four employees were selected from a pool of more
 than 80 inspectors working in the Seattle District. According to Mr.
 Hardy, when he was informed that there would be surplus funds available
 he decided to institute the transfer training program.  The record
 reveals that this was first such program in to Seattle District.  In the
 past, it appears that there had only been temporary transfers within the
 Seattle District to cover employee absentees.
 
    Neither Mr. Beebe nor Mr. Thomas had any desire to go on their
 respective assignments.  Mr. Beebe's was an unhappy experience that
 forced him to spend two weeks 90 miles away from home, separated from
 his wife, and living in a Seattle motel.  Mr. Thomas has an eight year
 old son who spends two or three nights each week with him.  During the
 three weeks he spent in Blaine, 125 miles from his home in Seattle, he
 was separated from his son and his community.  When Mr. Thomas found out
 he was being sent to Blaine, he even tried to get an alternative
 assignment in Los Angeles where, at least, he would be near relatives.
 Their assignments were given to them without any prior warning or
 discussion.
 
    On the other hand, even before Mr. Hardy issued his August 2, 1985
 memo, management knew that both Mr. Bowen and Mr. Hassebrock would
 welcome the temporary transfer.  Mr. Bowen had already attempted to fill
 a job vacancy in Anacortes and his supervisor, Mr. Tom Coleman, admitted
 that he wanted to go to Anacortes.  While Bowen did not volunteer, in
 the strictest sense of the word, the record indicates that he would have
 if he had been given a chance.  Mr. Hassebrock's supervisor also knew
 that he was interested in being sent to Seattle.  In July, 1985, before
 he left on his three week vacation, Mr. Hassebrock told his supervisor,
 Mr. Eberhardt, that he was "definitely interested" in a temporary
 assignment to Seattle.
 
    This difference in treatment continued once these employees arrived
 at their temporary assignments.  In Seattle, Mr. Beebe found himself
 restricted by supervisors Mr. Jack Lopez and Mr. Terry Millhouse as to
 the amount of "cargo discharge" work and "entering or clearing of
 vessels" work he was allowed to do on overtime, even though he had
 fourteen years of experience in that type of work and had been allowed
 by Mr. Lopez and Mr. Millhouse to do that work during regular hours.
 Mr. Hassebrock did not face similar limits on the type of overtime work
 he was allowed to do, testifying that "I could work any overtime that
 was available that I could do." Although Mr. Hassebrock testified that
 he, too, did not do any "vessel and cargo discharges" it was only
 because he did not have sufficient expertise for such assignments.
 Moreover, even though both Mr. Beebe and Mr. Thomas were available to
 work overtime every night, while Mr. Hassebrock was not available the
 entire first week, both earned less overtime during their details than
 either Mr. Bowen or Mr. Hassebrock.
 
    NTEU challenged Respondent's discriminatory assignments of Mr. Beebe
 and Mr. Thomas, filing the present unfair labor practice on August 23,
 1985.  On behalf of Respondent, Mr. Hardy replied to the charges in an
 October 2, 1985 letter to Region 9 of the Authority, in which he offered
 the "specific reasons for the temporary reassignment of each employee."
 Mr. Hardy asserted that Beebe had been selected for the assignment so
 that he could train Seattle employees on aspects of the "oil program,"
 while Mr. Thomas, as the inspector commanding the "greatest knowledge"
 of the Automated Commercial System (ACS), /4/ had been selected to shar
 this expertise with employees in Blaine, Washington.  That same month
 Mr. Hardy also met with NTEU Chapter 164 President, Mr. William Keown,
 and again asserted the some reasons for the assignments.
 
    Mr. Beebe was never informed of any alleged training duties and his
 assignment to Seattle port involved absolutely no training of other
 employees on the oil program.  In fact, during Beebe's two-week
 assignment his only involvement with the Oil Program was a one and one
 half hour meeting with Customs Import Specialist Mr. Yamata wherein the
 oil program was discussed.  Mr. Beebe himself had requested the meeting
 after he had learned of the temporary reassignment.
 
    Mr. Thomas, like Mr. Beebe, did no training in his alleged area of
 expertise, the ACS, while on assignment to Blaine.  During his three
 weeks in Blaine, Mr. Thomas spent only 30 minutes even discussing ACS
 with Blaine employees.
 
    Moreover, the evidence further establishes that Mr. Thomas was not an
 expert on ACS and that, in fact, if such expertise were required, there
 were more qualified inspectors available, including Inspectors Mr.
 Barry, Mr. Bjork, and Mr. Bergquist.  Mr. Thomas' first experience with
 ACS (or its predecessor "ACCEPT") came in April, 1985 and he had a total
 of only 15 minutes of on-the-job experience by September 3, 1985, when
 he went to Blaine.  During that time Mr. Thomas was the "outside man" at
 Respondent's "transiplex" facility at the SEA-TAC airport.  As both Mr.
 Thomas and, later Inspector Mr. Jack Bjork testified, the "outside man"
 's ACS responsibilities are limited to one day every other week, when he
 relieves the "inside man," who is the one primarily responsible for ACS.
  Mr. thomas had never been to any ACS training classes.  /5/
 
    Inspectors Mr. Robert Barry, Mr. Gerald Bergquist, and Inspector Mr.
 Bjork, on the other hand, had a great deal of experience and training in
 ACS and ACCEPT.  /6/ Three years ago Respondent sent Mr. Barry to San
 Diego for ACS training.  He then returned to Seattle where he set up the
 ACS program and trained the first journeymen inspectors.  Mr. Barry had
 also been the Seattle District's "training officer" from June 1983 to
 January, 1985, coordinating the District's training programs and often
 running specific training sessions.  Because of his vast experience and
 training in ACS, Mr. Barry needed only minutes to reacquaint himself
 with ACS after being away from the system for two years.  Inspector
 Bjork has attended an ACS training session in May, 1985 along with 15
 other inspectors and had been working since that time as the "inside
 man" with Mr. Thomas at Transiplex.  As noted earlier, it is the inside
 man who has primary responsibility for, and handles, the bulk of ACS
 work.
 
    Inspector Bergquist has worked at Respondent's Harbour Island
 facility as the Senior Inspector of the Harbour Island ACS unit from
 June, 1985 to the present.  Prior to becoming Senior Inspector, Mr.
 Bergquist spent three weeks as acting supervisor of the ACS unit.  At
 Harbour Island, the ACS unit places between 6000-7000 monthly entries
 into ACS.  /7/ As Senior Inspector of the ACCEPT unit Mr. Bergquist's
 responsibility included reviewing all ACS entries, and supervising the
 inspectors and the sides who work on the ACS computer.
 
    Following the testimony of Mr. Barry, Mr. Bjork and Mr. Bergquist in
 the above respect, Mr. Hardy was recalled to the stand and offered new
 explanations for selecting Mr. Beebe and Mr. Thomas for the temporary
 details.  With respect to Mr. Thomas, Mr. Hardy claimed that he had
 important supervisory skills.  Mr. Hardy also referred to Thomas'
 "airport operation" experience, pointing out that it would be useful at
 a border port.  However, Mr. Thomas was instructed to work simply "as a
 Senior Inspector in the Cargo Area." Moreover, with respect to knowledge
 of airport operations, both Mr. Bjork and Mr. Barry, who appear to have
 better ACS qualifications, also had working experience at the Sea-Tac
 Airport.
 
    With respect to Mr. Beebe, at the hearing, Mr. Hardy no longer
 contended that Mr. Beebe was an oil expert, and instead claimed that
 Beebe had been sent to Seattle to improve his allegedly poor performance
 in a number of areas.  However, Mr. Beebe received no training at all
 while in Seattle.  Mr. Hardy also claimed that Beebe's high overtime
 earnings were causing a problem in staffing at Anacortes, suggesting
 that Mr. Beebe might reach the $25,000 cap in September, making it
 difficult to spread the overtime assignments.  However, the evidence
 establishes that Mr. Beebe had only $19,000-$20,000 in overtime when he
 arrived in Seattle in September.  Moreover, Mr. Hardy admitted that he
 had begun a program in 1985 at Anacortes using intermittent inspectors
 to handle overtime assignments in lieu of regular inspectors.  There is
 no evidence that the intermittent inspectors were unavailable in
 September, 1985.  However, Mr. Hardy further testified that the
 intermittents were not qualified for all jobs.
 
    Mr. Hardy's only explanation for failure to include these new reasons
 in his October letter to the Region was that he had dictated the letter
 rather hurriedly.
 
                        Discussion and Conclusions
 
    The General Counsel, citing, among other things, the protected
 activity of Mr. Beebe and Mr. Thomas, the timing of their details, the
 fact that Mr. Hardy's reasons for their selection do not withstand
 scrutiny, and the availability of more qualified teachers than Mr.
 Thomas, takes the position that the details of Mr. Beebe and Mr. Thomas
 were based solely on union animus and were therefore in violation of
 Section 7116(a)(1) and (2) of the Statute.
 
    The Respondent on the other hand takes the position that the General
 Counsel has not established a prima facie case and therefore the
 complaint should be dismissed in its entirety.  Additionally, the
 Respondent claims that the General Counsel has not established that the
 reasons proffered for the selection of Mr. Beebe and Mr. Thomas were
 "pretextual." Finally, the Respondent takes the position that even if it
 is established that Mr. Beebe and Mr. Thomas' grievances and that Mr.
 Hardy, the Distrtct Director, the person responsible for selecting Mr.
 Beebe and Mr. Thomas for the temporary inter-port awareness program, was
 well aware of their respective protected activities.
 
    The record further establishes that Mr. Hardy made the decision to
 select Mr. Beebe and Mr. Thomas for the temporary details without any
 consultation with Mr. Beebe and Mr. Thomas concerning such details.  In
 contrast to the treatment accorded Mr. Thomas and Mr. Beebe, Mr. Hardy
 sought input from the supervisors in the Seattle and Blaine Ports
 relative to which employees should be detailed to the permanent
 locations of Mr. Beebe and Mr. Thomas.  /8/ Thus, while the swap was
 voluntary as to Mr. Beebe and Mr. Thomas' temporary replacements, it was
 mandatory as to Mr. Beebe and Mr. Thomas and resulted in undue hardships
 upon them.
 
    The record further reveals, that, according to Mr. Hardy, he selected
 Mr. Beebe and Mr. Thomas for the inter-port transfers in order to
 utilize their expertise in the ports of Blaine and Seattle.  Thus, Mr.
 Beebe was to train employees in Seattle on the "oil program" while Mr.
 Thomas was to train the Blaine Port employees on the ACS system.
 However, in practice, neither Mr. Beebe nor Mr. Thomas was programmed to
 impart their alleged respective knowledge of the oil program and ACS
 system to the employees working in the Seattle and Blaine Ports.  In
 fact the record further establishes that Mr. Beebe only contact with the
 oil program while in Seattle was a one and one half hour discussion with
 an import oil specialist which he requested after he had been informed
 of his temporary assignment.
 
    With respect to Mr. Thomas, who was allegedly selected for a
 temporary detail to Blaine because of his ACS expertise, the record
 reveals that he was far from an ACS expert, having had only fifteen
 minutes on-the-job training on ACS.  The record further reveals that
 other employees were much more versed in the ACS system and that such
 employees has actually undergone formal training on the ACS system.
 
    Finally, with regard to Mr. Hardy's testimony that one of the reasons
 for the temporary transfers of Mr. Beebe and Mr. Thomas was their
 proximity to the $25,000 overtime cap, the record reveals that Mr. Beebe
 as of September 3, had only earned nineteen or twenty thousand dollars
 in overtime.  Accordingly, multiplying $68 by 27, the remaining days of
 the fiscal year, would therefore only give him less than $22,000 in
 overtime earning for the entire fiscal year, several thousand dollars
 less than $25,000 the overtime cap.
 
    Based upon the record as a whole and particularly the foregoing
 considerations, I find, contrary to the contention of the Respondent,
 that the preponderance of the evidence supports the conclusion that the
 temporary details of Mr. Beebe and Mr. Thomas were based upon their
 participation in activities protected by the Statute, namely the filing
 of grievances.  I further find that the reasons assigned by Respondent
 for their respective details were a pretext and that but for Mr. Beebe
 and Mr. Thomas' participation in protected activities they would not
 have been involuntarily detailed to the Blaine and Seattle Ports.  In
 such circumstances, I further find that the Respondents selection of Mr.
 Beebe and Mr. Thomas for their respective details was based upon union
 animus and hence violative of Section 7116(a)(1) and (2) of the Statute.
 
    Accordingly, it is hereby recommended that the Federal Labor
 Relations Authority issue the following Order designed to effectuate the
 purposes and policies of the Statute.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Statute, the
 Authority hereby orders that the U.S. Customs Service, Washington, D.C.
 shall:
 
    1.  Cease and desist from:
 
          (a) Discriminating against Donald Thomas, Loren Beebe, or any
       other unit employees with regard to temporary assignments,
       details, or other conditions of employment because of their action
       in filing grievances or participating in other activities
       protected by the Statute. (b) In any like or related manner
       interfering with, restraining, or coercing employees in the
       exercise of their rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 pruposes and policies of the Statute.
 
          (a) Make whole Donald Thomas and Loren Beebe for any loss of
       overtime pay they would have earned but for their temporary
       details during the period September 3, 1985 to September 21, 1985.
 
          (b) Post at all its locations within the Seattle, Washington
       District copies of the attached notice marked "appendix" on forms
       to be furnished by the Federal Labor Relations Authority.  Upon
       receipt of such forms they shall be signed by the District
       Director, and shall be posted and maintained by him for 60
       consecutive days thereafter, in conspicuous places, including all
       bulletin boards and other places were notices to employees are
       customarily posted.  Reasonable steps shall be taken to insure
       that said 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 for Region IX, in
       writing, within 30 days from the date of this Order, as to what
       steps have been taken to comply herewith.
 
                                       /s/ Burton S. Sternburg
                                       Administrative Law Judge
 
    Dated:  January 31, 1986
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (*) The General Counsel's motion to disregard the Respondent's
 exceptions and attached opposition to the Respondent's exceptions have
 not been considered because they were filed untimely.  Therefore, it is
 unnecessary to consider the Respondent's response to the General
 Counsel's motion.
 
    (1) In the absence of any objection, General Counsel's Motion to
 Correct Hearing Transcript, should be, and hereby is, granted.
 
    (2) This arbitration is still pending.
 
    (3) Mr. Beebe's assignment lasted only two weeks because of an
 earlier scheduled vacation.
 
    (4) ACS and its predecessor, ACCEPT, are computer systems which
 Respondent uses to determine the extent to which an importer's shipment
 will be inspected.
 
    (5) Concerning Mr. Thomas' alleged ACS qualifications, Mr. Hardy
 mistakenly recalled an ACS computer "demonstration" that Mr. Thomas had
 given to him.  However, Mr. Thomas testified that he never even
 discussed ACS with Mr. Hardy and that the computer he had acquainted Mr.
 Hardy with was the Sealand System, which is totally unrelated to ACS.
 Mr. Thomas denied receiving any such ACS training and his denial stands
 uncontradicted on the record.
 
    (6) Unless otherwise noted, "ACS" will be used for all future
 references of both ACS and ACCEPT.
 
    (7) At the Transiplex, where Thomas gained his limited ACS
 experience, there are only 2,000 entries each month.
 
    (8) The supervisors indicated that they had employees under their
 supervision who had indicated a desire for such training details.
 
 
 
 
 
 
 
                                 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 TH