25:0032(3)CA - Justice, INS, El Paso District Office and AFGE Local 1210 -- 1987 FLRAdec CA



[ v25 p32 ]
25:0032(3)CA
The decision of the Authority follows:


 25 FLRA No. 3
 
 DEPARTMENT OF JUSTICE 
 UNITED STATES IMMIGRATION AND 
 NATURALIZATION SERVICE 
 EL PASO DISTRICT OFFICE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1210, AFL-CIO
 Charging Party
 
                                            Case No. 6-CA-50166
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the Respondent and the General Counsel to the attached Decision
 of the Administrative Law Judge.  The Respondent also filed an
 opposition and cross-exceptions to the General Council's exceptions.
 The complaint alleged that the Respondent failed to provide the Charging
 Party proper notice and an opportunity to negotiate in good faith when
 it unilaterally changed an established past practice and working
 condition by implementing a one-hour rotation of unit employees on the
 inspection lanes at the El Paso port of entry, in violation of section
 7116(a)(1) and (5) of the Federal Service Labor-Management Relations
 Statute (the Statute).  For the reasons stated below, we find that the
 Respondent violated section 7116(a)(1) and (5) of the Statute.
 
                                II.  Facts
 
    The American Federation of Government Employees (AFGE), National
 Immigration and Naturalization Service Council, is the exclusive
 representative for all personnel of the Immigration and Naturalization
 Service (INS), except employees assigned to Border Patrol Sectors and
 those excluded from coverage by Civil Service Reform Act.  AFGE, Local
 1210 (Charging Party/Union) is the local representative for AFGE for
 bargaining unit employees in the El Paso District.
 
    There are approximately 70 Immigration Inspectors at the El Paso
 District who are responsible for inspecting vehicles and individuals
 entering the United States from Mexico via three bridges.  The bridges
 are covered on a 24-hour basis.  Inspectors rotate through various
 shifts as well as assignments in the vehicular lanes, the pedestrian
 areas, and behind the counter at the secondary inspection functions.
 
    Carbon Monoxide and other fumes from automobile engines have posed a
 problem to the inspectors' health when inspectors have worked on the
 vehicular inspection lanes for long periods of time.  In October 1979,
 the Respondent's District Director and the local Union president entered
 into an agreement regarding the rotation of employees on the vehicular
 inspection lanes.  /1/ The agreement stated:
 
          Since management is ever mindful of the safety and health of
       its employees and since the carbon monoxide and other gas levels
       have not diminished at the ports of entry, it is agreed that the
       Immigration Inspectors on vehicular primary inspection at Bridge
       of the Americas and Paso del Norte Bridge will continue to be
       rotated every 30 minutes.
 
          This policy will be in effect until such time as the gas levels
       in the vehicular primary inspection areas decrease to a more
       tolerable level.
 
    Under this agreement, the inspectors worked the primary vehicular
 inspections at the two bridges for 30 minutes at a time;  after the 30
 minutes, they then rotated away from primary vehicular inspections and
 worked either the pedestrian area or secondary inspections inside the
 main building for 30 minutes to an hour.  During an eight-hour shift the
 inspectors spent about four hours on primary vehicular inspections.
 
    On November 2, 1983, the El Paso District Director advised the Union
 that he proposed to change the rotation time from 30 minutes to
 approximately one hour.  Following meetings with the Union, the District
 Director advised the Union that in deference to concerns about
 inspectors' safety, implementation of the change would be delayed until
 a new study on carbon monoxide levels could be conducted and the test
 results analyzed.
 
    Between December 1983 and December 1984, several tests of the carbon
 monoxide level were conducted by INS, the Occupational Safety and Health
 Administration (OSHA), and the City of El Paso.  The tests indicated
 that carbon monoxide did not exceed the OSHA permissible exposure limit
 for the employees sampled.  The Union was provided copies of the test
 results.
 
    On November 13, 1984, the Respondent advised the Union by letter that
 it proposed to implement the change of rotating inspectors from
 30-minute periods to approximately one-hour periods, in order to improve
 the efficiency of operations.  The letter stated that this change would
 not expose inspectors to pollution levels exceeding the OSHA standards.
 The letter also stated that the Union should arrange a meeting if it
 wished to present its views regarding this matter.  At the Union's
 request, the parties met on November 27, 1984 to discuss the proposed
 change.  The Respondent informed the Union that it would implement the
 change by December 10.  The Union asked that it be allowed to meet with
 the people who made the last study of the pollution levels, and the
 Respondent stated that it would try to arrange this.
 
    On November 28, 1984, the Union requested formal negotiations in
 accordance with the parties' agreement and made some preliminary
 proposals regarding the proposed change.  The parties exchanged
 correspondence and met again to negotiate on December 6, 1984,
 discussing the 1979 agreement that was keyed to a reduction of pollution
 levels before any changes in rotation would be made.
 
    On December 17, 1984, the Union received in the mail a letter from
 the Respondent dated December 12 advising the Union that the change
 would be implemented on December 17.  The change was implemented on
 December 17.  The Union protested the Respondent's implementation and
 again requested formal negotiations.  The Union submitted several
 proposals for the Respondent's consideration and negotiated with the
 Respondent on December 24 and December 27, 1984, and January 9, 1985.
 During the January 9 meeting the Respondent declared certain Union
 proposals to be nonnegotiable, and the Union stated that parties were at
 impasse.  The Respondent confirmed its position of nonnegotiability by
 letter of January 22, 1985.  Neither party requested assistance from the
 Federal Service Impasses Panel.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge found that the Respondent was not obligated to negotiate
 over the substance of its decision to change the amount of time
 employees serve on primary vehicular inspection duty from 30 minutes at
 a time to one hour at a time, because management's right to assign work
 under the Statute included the right to allocate specific amounts of
 time within which specific tasks would be accomplished.  The Judge also
 found that although the Respondent did not have to negotiate on the
 substance of the change, it was required to negotiate over the
 procedures to be observed in the exercise of management's authority and
 over appropriate arrangements for adversely affected employees under
 section 7106(b)(2) and (3) of the Statute because the change resulted in
 more than a de minimis impact on unit employees.
 
    The Judge also found that the Respondent failed to provide the Union
 with proper notice and an opportunity to negotiate and violated section
 7116(a)(1) and (5).  The Judge found that the Respondent's December 12
 notice to the Union (received by the Union on December 17) that the
 change would take effect December 17 did not acknowledge the Union's
 request for negotiations and allowed insufficient time for the Union to
 reiterate its bargaining request and for the parties to complete
 negotiations prior to implementation.  The Judge also found that the
 master agreement did not give management the sole right to make changes
 in conditions of employment prior to completion of the bargaining
 process.
 
    Finally, the Judge found that the Respondent's continued refusal to
 negotiate since the implementation of the change on Union proposals that
 were within the duty to negotiate violated section 7116(a)(1) and (5) of
 the Statute.  The Judge denied the General Counsel's request for a
 status quo ante order.
 
                       IV.  Positions of the Parties
 
    A.  Respondent's Exceptions to the Judge's Decision
 
    The Respondent contends that:  (1) the Judge lacked jurisdiction to
 hold a hearing in this case because at the time of the hearing the Union
 had a negotiability petition pending with the Authority on the same
 issue;  (2) the Respondent had no duty to negotiate because the change
 of the amount of time of the rotations was not a change of practice;
 (3) it gave the Union adequate notice and opportunity to bargain prior
 to implementation;  (4) the Union's proposals which were submitted after
 the implementation were nonnegotiable;  (5) it had no duty to bargain
 after the Union stated on January 9, 1985 that the parties were at
 impasse;  and (6) the impact of the change was not more than de minimis.
 
    B.  General Counsel's Exceptions to the Judge's Decision
 
    The General Counsel contends that the Respondent was obligated to
 negotiate with the Union over the substance of its decision to change
 the time on primary vehicular inspection duty as well as the impact and
 implementation of the change.  The General Counsel also argues that the
 Judge erred by failing to give a status quo ante remedy.
 
    C.  Respondent's Opposition to General Counsel's Exceptions and
 Cross-exceptions
 
    In response to the General Counsel's exceptions, the Respondent
 argues that the Judge correctly found that the Respondent had no duty to
 bargain over the change itself.  The Respondent contends that even if a
 duty to bargain on the change existed, the Judge erred in finding a duty
 to engage in impact and implementation bargaining, because these two
 obligations are mutually exclusive.  Moreover, the Respondent contends
 that because the complaint was limited to charging the Respondent with
 not providing an opportunity to bargain over the change, the Judge was
 without authority to consider the issue of a refusal to engage in impact
 bargaining.
 
                               V.  Analysis
 
    We find that the Judge had jurisdiction to hold a hearing.  Although
 the complaint and negotiability petition were temporarily pending at the
 same time, the Union's request for withdrawal of the negotiability
 petition filed with the Authority prior to the hearing was, in effect,
 its selection under section 2423.5 of the Authority's Rules and
 Regulations.  We find that the Respondent has not demonstrated that it
 was prejudiced by the temporary pendency of the two proceedings.  The
 Agency's exception in this regard provides no basis to dismiss the
 complaint.
 
    We find, contrary to the Judge, that the Respondent was obligated to
 negotiate over the substance of its decision to change the amount of
 time employees serve on primary vehicular inspection duty from 30
 minutes at a time to one hour at a time.  The change clearly affected
 conditions of employment of unit employees.  The Respondent's change
 from a 30-minute rotation to a one-hour rotation on vehicular inspection
 lanes changed a past practice in working conditions that existed from
 1979 to 1984.  Moreover, the change did not involve the exercise of
 management's rights under the Statute.  The record does not support the
 Judge's finding that the mere change in the length of the rotation --
 from 30 minutes to one hour -- involves the assignment of work.  The
 change to a one-hour rotation on vehicular traffic did not change the
 inspectors' duties.  The same inspectors continued to perform the same
 type of duties of their position at their normal duty stations and were
 assigned the same amount of time working on the vehicualr lanes per
 shift.  The change concerns only when employees will perform the
 previously assigned duties of their positions.  See American Federation
 of Government Employeed, AFL-CIO, Meat Grading Council of Locals and
 Department of Agriculture, Meat Grading and Certification Branch, 22
 FLRA No. 52 (1986) (Proposal 2) and American Federation of Government
 Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
 Department of Agriculture, Food Safety and Quality Service, Washington,
 D.C., 9 FLRA 663 (1980).  Therefore, we find that the change does not
 involve the exercise of Respondent's rights under the Statute and was a
 "mandatory" subject of bargaining.
 
    The Authority has consistently held that agency management may
 implement such changes only if (1) the parties have reached agreement,
 (2) there is no timely invocation of the services of the Federal Service
 Impasses Panel after impasse following good faith bargaining (unless
 implementation is consistent with the necessary functioning of the
 agency), or (3) the union has waived its bargaining rights.  See, for
 example, Department of the Treasury, Bureau of Alcohol, Tobacco and
 Firearms, 18 FLRA No. 61 (1985) and Office of Program Operations, Field
 Operations, Social Security Administration, San Francisco Region, 9 FLRA
 73 (1982).  Here, where the matter involved a mandatory subject of
 bargaining -- the length of the rotation -- the Respondent's action in
 implementing the change violated section 7116(a)(1) and (5) of the
 Statute.  The parties met on December 6, 1984, at which time the Union
 stated that it wanted formal negotiations, that it had already made some
 proposals, and that it intended to make additional proposals.  The
 implementation date was not discussed at the December 6 meeting.  The
 change was implemented on December 17, which was the same day the Union
 received a letter from the Respondent stating that implementation would
 occur on that day.  The parties had not reached agreement, there was no
 impasse about which to request the services of the Panel, and no waiver
 is alleged or otherwise apparent.  Accordingly, we find that the
 Respondent implemented the change before it fulfilled its bargaining
 obligation.
 
    However, in agreement with the Respondent, we conclude that the Judge
 erred in finding a violation based on the Respondent's failure to
 bargain on the impact and implementation of the change.  The complaint
 in this case only alleged an unfair labor practice based on the
 Respondent's failure to bargain over the change, not over its impact and
 implementation.  The General Counsel did not seek to amend the complaint
 at the hearing, as permitted by section 2423.12(d) of the Authority's
 Rules and Regulations.  Accordingly, inasmuch as an allegation of
 failure to bargain over impact and implementation is not properly before
 us, we do not adopt the Judge's descussion of any impact and
 implementation bargaining obligations.  See Library of Congress, 15 FLRA
 589, 591 (1984).  /2/
 
    Therefore, we find that the Respondent's failure to bargain over the
 change in the rotation of inspectors on vehicular traffic from 30
 minutes to one hour constituted a violation of section 7116(a)(1) and
 (5) of the Statute.  Consistent with our practice in cases where
 management makes a unilateral change regarding a negotiable term and
 condition of employment, we find that effectuation of the purposes and
 policies of the Statute requires the imposition of a status quo ante
 remedy, absent special circumstances, in order not to render meaningless
 the mutual obligation under the Statute to negotiate concerning changes
 in conditions of employement.  See Veterans Administration, West Los
 Angeles Medical Center, Los Angeles, California, 23 FLRA No.37 (1986).
 There are no such special circumstances in this case.
 
                              VI.  Conclusion
 
    Pursuant to section 2423 of the Authority's Rules and Regulations and
 section 7118 of the Statute, we have reviewed the rulings of the Judge
 made at the hearing and find that no prejucicial error was committed,
 and thus affirm those rulings.  We have considered the Judge's Decision
 and the entire record, including the parties' contentions, and adopt the
 Judge's findings and conclusions only to the extent consistent with the
 above.  We therefore conclude that the Respondent violated section
 7116(a)(1) and (5) of the Statute by failing to bargain on the
 Respondent's change of rotating inspectors on vehicular inspection from
 30 minutes to one hour.  We conclude further that the Judge's finding of
 a violation based on the Respondent's failure to notify and bargain with
 the Union on the impact and implementation of the change must be
 reversed as that allegation was not encompassed by the complaint before
 the Authority.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulation and section 7118 of the Federal Service
 Labor-Management Relations Statute, the Authority hereby orders that the
 Department of Justice, United States Immigration and Naturalization
 Service, El Paso District Office, shall:
 
    1.  Cease and desist from:
 
    (a) Instituting changes in the rotation periods for employees working
 on primary vehicular inspection lanes at the El Paso port of entry
 without affording the American Federation of Government Employees,
 AFL-CIO, Local 1210, the designated representative of its employees in
 the El Paso District, an opportunity to bargain concerning such changes.
 
    (b) In any like or related manner, interfering with, restraining, or
 coercing its 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) Rescind the decision to change to a one-hour rotation schedule
 implemented on December 17, 1984, and restore the previously existing
 30-minute rotation schedule.
 
    (b) Upon request negotiate in good faith with the American Federation
 of Government Employees, AFL-CIO, Local 1210, the designated
 representative of its employees, concerning the December 17, 1984 change
 in the rotation period for employees working on primary vehicular
 inspection lanes at the El Paso port of entry to the extent that
 negotiations are not inconsistent with applicable Federal law or
 Government-wide regulation.
 
    (c) Post at its facilities copies of the attached Notice on forms to
 be furnished by the Authority.  Upon receipt of such forms, they shall
 be signed by the District Director 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.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VI, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with this Order.
 
    Issued, Washington, D.C., January 6, 1987
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, 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 institute changes in the rotation period for employees
 working on primary vehicular inspection lanes at the El Paso port of
 entry without affording the American Federation of Government Employees,
 AFL-CIO, Local 1210, the designated representative of our employees in
 the El Paso District, an opportunity to bargain concerning such changes.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL rescind the change to a one-hour rotation schedule
 implemented on December 17, 1984, and restore the previously existing
 30-minute rotation schedule.
 
    WE WILL upon request negotiate in good faith with the American
 Federation of Government Employees, AFL-CIO, Local 1210, the designated
 representative or our employees, concerning the December 17, 1984 change
 in the rotation period for employees working on primary vehicular
 inspection lanes at the El Paso port of entry to the extent that
 negotiations are not inconsistent with applicable Federal law or
 Government-wide regulation.
                                       (Activity)
 
    Dated:
                                       District Director, El Paso Office
 
    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, Region VI, Federal Labor Relations Authority, whose
 address is:  525 Griffin Street, Suite 926, Dallas, Texas 75202, and
 whose telephone number is:  (214) 767-4996.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 6-CA-50166
 
 DEPARTMENT OF JUSTICE, UNITED STATES 
 IMMIGRATION AND NATURALIZATION
 SERVICE, EL PASO DISTRICT OFFICE
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1210
    Charging Party
 
    Shirley A. Epperson
    For the Respondent
 
    Mike Milligan, Esquire
    For the Charging Party
 
    Susan E. Jelen, Esquire
    For the General Counsel, FLRA
 
    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 Six, Federal Labor Relations Authority,
 Dallas, Texas against the Department of Justice, United States
 Immigration and Naturalization Service, El Paso District Office
 (Respondent), based on charges filed by the American Federation of
 Government Employees (AFGE), AFL-CIO, Local 1210 (the Charging Party 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. Section 7101 et seq. (the Statute), by
 implementing a one-hour rotation of bargaining unit employees on the
 inspection lanes at the El Paso port of entry (Bridge of the Americas
 and the Paso del Norte Bridge), since on or about December 17, 1984, and
 continuing to date, without providing the Union proper notice and the
 opportunity to negotiate over this alleged unilateral change in an
 established past practice and working condition.
 
    Respondent's answer admitted the jurisdictional allegations as to the
 Respondent, Charging Party, and the charge, and admitted that it had
 implemented a one-hour rotation policy on the inspection lanes, but
 denied that it had refused to negotiate or otherwise violated the
 Statute.
 
    A hearing was held in El Paso, Texas.  The Respondent, Charging
 Party, and the General Counsel were represented and afforded full
 opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  Based on the
 entire record, 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 American Federation of Government Employees (AFGE), National
 Immigration and Naturalization Service Council, is the exclusive
 representative for all personnel of the Immigration and Naturalization
 Service (INS), except those assigned to Border Patrol Sectors and those
 excluded from coverage by the Civil Service Reform Act.  AFGE, Local
 1210 is and has been the local representative for AFGE for bargaining
 unit employees in the El Paso District.
 
    The El Paso District of the United States Immigration and
 Naturalization Service covers an area from Columbus, New Mexico to
 Presidio, Texas.  Alfred H. Giugni has been the district director at El
 Paso for approximately five years.
 
    El Paso contains three bridges between Mexico and the United States.
 These bridges are called Ysleta, Bridge of the Americas (BOA), and Paso
 del Norte Bridge.  Immigration employees assigned to work these ports of
 entry are responsible for inspecting vehicles and individuals desiring
 to enter the United States.
 
    There are approximately 70 Immigration inspectors at El Paso.  The
 bridges are covered on a 24-hour basis.  Employees rotate through
 various shifts as well as assignments.  Employees at the bridges work
 the vehicular lanes, the pedestrian areas, and behind the counter at the
 secondary inspection functions.
 
    Both the Paso del Norte Bridge and the Bridge of the Americas have
 similar designs.  The Paso del Norte Bridge is a one-way bridge to the
 United States from Juarez, Mexico.  Each bridge has a covered shed-like
 area where the vehicular lanes are located.  There are overhead fans in
 the convered area, but they do not always work.  There is no real
 exhaust system in use.  There are eight vehicular lanes through which
 the traffic must pass.  There are four lanes on each side of the Customs
 head house.  Immigration is assigned four lanes and employees of the
 U.S. Customs Service are assigned to work the other four lanes.  The
 cars line up for the inspection.  When one car is cleared, another
 drives up to take its place.  Since June 1984 cars waiting to be
 inspected line up behind a stop sign about 25 feet from the car being
 inspected.  As a vehicle pulls up to the garita, or booth, the inspector
 begins the inspection.  The inspector determines the citizenship of the
 driver and passengers and asks what they are bringing into the United
 States from Mexico. Immigration inspectors are cross-trained to fulfill
 the functions of Customs and Agriculture employees.  There is only one
 inspector assigned to a lane at one time.  In certain cases, the
 inspector may need to inspect the trunk or check under the hood of the
 vehicle.  Most vehicles remain with their motors running during this
 inspection.  Each inspector checks approximately 130 to 140 cars each
 hour, according to counts maintained by the Customs Service.  As many as
 1,000 cars per hour can pass through this covered area.  Trafic has
 increased in recent years.  The vehicles coming from Mexico burn leaded
 fuel which increases the pollution.  The city of El Paso itself has not
 met Federal pollution standards for several years, although there has
 been some continuing improvement in the ambient pollution level.
 
    Over the years, since at least 1968, carbon monoxide and other fumes
 from the automobile engines have posed a problem to the inspectors'
 health when inspectors have worked on the vehicular inspection lanes for
 long periods of time.  As a result, in October 1979, Respondent's
 district director and the local Union president entered into an
 agreement regarding the rotation of employees on the vehicular
 inspection lanes.  The agreement stated:
 
          Since management is ever mindful of the safety and health of
       its employees and since the carbon monoxide and other gas levels
       have not diminished at the ports of entry, it is agreed that the
       Immigration Inspectors on vehicular primary inspection at Bridge
       of the Americas and Paso del Norte Bridge will continue to be
       rotated every 30 minutes.
 
          This policy will be in effect until such time as the gas levels
       in the vehicular primary inspection areas decrease to a more
       tolerable level.
 
    From 1979 until December 17, 1984, Immigration inspectors worked the
 primary vehicular inspections at the two bridges for 30 minutes at a
 time.  Then the inspectors rotated away from primary vehicular
 inspections and worked either the pedestrian area or secondary
 inspections inside the main building for 30 minutes to an hour.  During
 an eight hour shift the inspectors spent about four hours on primary
 vehicular inspections.  On June 13, 1979, INS and AFGE reached agreement
 on a new master contract.  Article 5B provided that the "agreement is
 not intended to abolish, solely by exclusion therefrom, any local or
 regional understandings or agreements which have been mutually
 acceptable at the local or regional level." Article 17I provided, in
 part, that "Consistent with operational needs, Immigration Inspectors
 assigned to vehicular inspections at ports-of-entry shall be rotated on
 a fair and equitable basis from the vehicular inspections to a
 non-vehicular inspection assignment." Article 3G provided, as follows:
 
          The parties recognize that from time to time during the life of
       the agreement, the need will arise for management to change
       existing Service regulations covering personnel policies,
       practices, and/or working conditions not covered by this
       agreement.  The Service shall present the changes it wishes to
       make to existing rules, regulations, and existing practices to the
       Union in writing.  The Service recognizes that this obligation
       exists at the national, Regional, and District level when such
       changes are to be made.  The Union will present it views (which
       must be responsive to either the proposed change or the impact of
       the proposed change) within a set time after receiving notice from
       management of the proposed change.  The time will be:
 
          22 Work Days at National Level
 
          10 Work Days at Regional Level
 
          10 Work Days at District Level
 
          If disagreement exists, either the Service or the Union may
       serve notice on the other of its interest to enter into formal
       negotiations on the subject matter.  The Union will request
       negotiations within 5 work days of receipt of the Service
       response.  Such negotiations must begin within 5 work days of
       receipt by the other party of a request to negotiate.  Reasonable
       extensions of these time limits may be granted on request.
       Nothing in the foregoing shall require either party to negotiate
       on any matter it is not obligated to negotiate under applicable
       law.
 
    The 1979 contract expired in 1982.  However, the parties continued to
 abide by its basic provisions pending negotiation of a new contract.
 /3/ The 30 minute rotation procedure continued to be followed.
 
    On November 2, 1983, the District Director, El Paso, advised the
 Union that he proposed to change the rotation time from 30 minutes to
 periods of approximately one hour.  This notice was provided pursuant to
 Article 3G of the 1979 contract.  Following meetings with the Union and
 the threatened filing by the Union of a request for a temporary
 restraining order in District Court, the District Director advised the
 Union that, in deference to concerns about the safety of inspectors,
 implementation of the change would be delayed until a new study could be
 conducted and the test results analyzed.
 
    Thereafter, between December 1983 and December 1984 three or four
 tests of the carbon monoxide level were conducted by INS, the
 Occupational Safety and Health Administration (OSHA), and the City of El
 Paso.  The OSHA test was conducted in December 1983 -- January 1984.
 The tests indicated that, during the test period, carbon monoxide did
 not exceed the OSHA permissible exposure limit for the employees
 sampled.  The Union was provided copies of the test results.
 
    On November 13, 1984, Respondent had a letter, addressed to Union
 president Ginger Chavez and signed by District Director Giugni,
 personally delivered to Chavez at her work assignment, the El Paso
 International Airport.  It has been the usual practice for Respondent to
 hand deliver correspondence to the union.  The letter stated, in part:
 
          In accordance with Article 3G of the negotiated agreement this
       is to advise you that I am proposing to change the existing
       practice of rotating officers working on primary inspections at
       the El Paso Port of Entry from 30 minutes to periods of
       approximately one hour.
 
          The reason for this change is to improve the efficiency of the
       operations by better utilization of available manpower.
       Implementation of this change will provide the District with
       additional flexibility in the assignment of personnel to better
       facilitate the movement of vehicular traffic and improve the
       overall quality of inspections.  This change will not expose
       inspectors to levels of pollution exceeding the OSHA standards.
 
          If you wish to present your views regarding this matter please
       contact my secretary to arrange an appointment to meet with me
       within ten work days from receipt of this notice as set by Article
       3G of the negotiated agreement.
 
    At the Union's request, representatives of the Respondent and the
 Union met on November 27, 1984.  District Director Giugni stated that he
 intended to implement the change to one hour rotations by December 10.
 Attorney Mike Milligan who was representing the Union, asked that the
 Union be allowed to meet with the people who made the last study
 regarding the pollution levels of the El Paso bridges.  Giugni stated
 that they would try to arrange this.  The parties made arrangement for
 another meeting on December 6, 1984.
 
    On November 28, 1984, Milligan sent a letter to Giugni which covered
 what happened at the November 27 meeting.  In this letter, in accordance
 with Article 3G of the Collective Bargaining Agreement, Milligan made a
 formal request for negotiations "(b)ecause of my uncertainty about
 whether disagreement exists." The Union also made some preliminary
 proposals regarding the proposed change, as follows:
 
          First, it is unclear to me and the Union exactly what you are
       trying to accomplish by the change from half hour to one hour
       rotation.  If we knew what the objective as, we would be happy to
       explore other ways of accomplishing it without endangering the
       health of the Immigration Inspectors.  Also, we would consider
       agreeing to one-hour rotations, coupled with continuous monitoring
       of the pollution levels, so that the rotation intervals could be
       changed as soon as the pollution levels become unhealthful.  I
       understand your regional office already has monitoring devices
       that the inspectors can wear.  Also, we would consider agreeing to
       be bound by the results of a new study by the Occupational Safety
       and Health Administration (which conducted the original study in
       1979), provided you would agree to delay implementation of 60
       minute rotations until they have completed their study.
 
          Along these same lines, I believe it would be valuable for both
       sides to have more information about this entire problem.  That is
       why I proposed the meeting with someone who conducted the latest
       study, and there are other avenues we could explore as well.  For
       instances, last summer's data suggests that, at least then,
       concentrations of carbon monoxide was somewhere between the
       minimum standard set by OSHA and that set by the National
       Institute for Occupational Safety and Health.  Since there are
       apparently different standards, it might be helpful to have the
       data evaluated by a toxicologist who could tell us in practical
       terms what the various concentrations of carbon monoxide would
       mean to the health of the Immigration Inspectors.  We would prefer
       that the toxicologist be someone connected with neither the
       Government nor the union, and we would be willing to consider
       paying part of his fees.  Also, I have seen no measurement of
       other pollutants associated with engine exhaust, such as lead.
       Because of the high consumption of leaded fuel in this area, there
       could very well be some risk from that sort of pollution as well.
 
          Finally, I want to emphasize that we are willing to discuss and
       bargain concerning all of the above matters, either individually
       or in combination with any proposals you may have.  And we also
       reserve the right to bargain, add to, amend or delete proposals.
 
    On December 3, 1984, a letter, addressed to the Union attorney, Mike
 Milligan, and signed by Respondent, was hand delivered by Respondent to
 Milligan's office.  The letter stated, in part:
 
          I am puzzled by your request to enter into negotiations on
       December 6, 1984, since I am still waiting to hear the Union's
       views on the proposed change or the impact of the proposed change,
       in accordance with Article 3G of the negotiated agreement.
 
          In my proposal to you of November 13, 1984, I clearly set forth
       my intention to change the rotation schedule from 30 minutes to a
       period of approximately one hour, set forth the reason as to why I
       felt this change necessary, and asked the Union to present its
       views.  I am assuming in our meeting of December 6, 1984, your
       views will be presented and I will have the opportunity to
       consider your views and then give you my decision on this matter.
       At this point, I know of no disagreement which exists that would
       warrant our entering into negotiations as you requested.
 
    On December 6, 1984, the parties met again to discuss the proposed
 one-hour rotation.  During the meeting, the parties discussed the 1979
 agreement.  The Union stated that the agreement was keyed to a reduction
 of pollution levels and that the latest studies were insufficient
 evidence of such a reduction.  The Union also indicated that it was
 willing to look more closely at the July-August pollution study.  The
 Union stated if a disagreement existed between the parties, the Union
 wanted formal negotiations, and noted that they had already made some
 proposals and intended to offer additional proposals.  The
 implementation date was not discussed.  Mr. Giugni indicated that he
 would give the Union his decision in writing.
 
    At approximately 2:45 p.m. on December 17, 1984, Milligan received a
 letter signed by District Director Giugni and dated December 12, 1984.
 This letter was not hand delivered as were the previous letters, but was
 sent through the mail.  The letter stated, in part, as follows:
 
          The views of the Union presented to me in our meeting of
       November 27, 1984 and December 6, 1984, in response to my proposal
       to change the rotation of Immigration Inspectors on primary
       vehicular duty at the El Paso Port of Entry, have been considered.
 
          I agree that there is an agreement between Management and Local
       1210, AFGE, that Immigration Inspectors at the El Paso Port of
       Entry (Bridge of the Americas and the Paso del Norte Bridge) on
       primary vehicular duty will be rotated every 30 minutes.  However,
       I disagree that no evidence exists that pollution levels have
       decreased to a more tolerable level.  The studies which were
       furnished to you on December 6, 1984 indicate that a one-hour
       rotation shcedule will not expose the Immigration Inspectors to
       levels of pollution that exceed the acceptable OSHA level of 50
       parts per million.
 
          Your suggestion that a toxicologist be hired to evaluate the
       studies that have been completed and that his cost be shared by
       the agency is not acceptable.  Your suggestion that further
       studies be conducted prior to implementation of any change to the
       rotation schedule is also rejected.  These suggestions are
       rejected because numerous pollution studies have already been
       conducted since the agreement of 1979 and these studies have shown
       that the Immigration Inspectors would not be exposed to levels of
       pollution exceeding the the acceptable OSHA level.
 
          I intend to implement the one-hour rotation at the Bridge of
       Americas and the Paso del Norte Bridge beginning December 17,
       1984.  The individual assignment of inspectors and the pollution
       levels to which they will be exposed will be closely monitored by
       both supervisors and representatives from the Southern Regional
       Office the week of December 17, 1984, while the change is being
       implemented.  I would hope that this would ensure that the
       Immigration Inspectors will not be exposed to pollution levels
       exceeding the OSHA standard.
 
    Prior to Milligan's receipt of the letter, he was advised by Union
 president Chavez on the morning of December 17, 1984 that the change had
 been implemented that day.  The one-hour rotation for employees on
 primary vehicular inspection was implemented at both the Paso del Norte
 and the Bridge of Americas at 8:00 a.m. on December 17, 1984.
 
    By letter dated December 17, 1984 Union attorney Milligan protested
 Respondent's implementation, demanded that the one hour rotations be
 stopped, and requested formal negotiations by December 19, 1984 that it
 was willing to negotiate on the change and requested that the Union
 submit specific written proposals.  The Respondent did not respond to
 the Union's request that the change in rotation be rescinded.  The
 change was not rescinded and contiunes in effect.
 
    On December 19, 1984, the Union responded to the Respondent's letter
 and provided several proposals for the Respondent's consideration:
 
          1.  To provide for employee safety and health, the Service and
       the Union agree to rotate employees performing the inspectional
       functions through the various phases of work available within the
       function during each shift on a fair and equitable bases (sic).
 
          2.  In determining the rate at which employees assigned shall
       rotate through the vehicular inspection function, the Service
       agrees to consider, among other factors, the number of employees
       available on a given shift, the air quality at the port of entry
       and pertinent weather factors in the area as determined by the
       U.S. Occupational Health and Safety Administration;  the need, or
       lack thereof, for the utilization of available employees on other
       functions;  and any other factor appropriate to the performance of
       the services mission.
 
          3.  The Service and the Union agree that, consistent with the
       Service needs except in cases of emergency, the Service show (sic)
       observe the recommended exposure guidelines of the Occupational
       Safety and Health Administration in determining how frequently to
       rotate employees through the various inspectional functions.  The
       Service agrees to make every effort to maintain exposure levels
       for vehicle exhaust at or within levels designated as safe.
 
          4.  The Service agrees that it will make every reasonable
       effort to relieve from the vehicular inspection function, on a
       temporary bases (sic), any employee who becomes ill, nauseas
       (sic), or otherwise suffers ill effects as a result of exposure to
       vehicle exhaust or fumes.  The Service agrees that such employees
       shall be assigned to other duties as may be available in a prompt
       manner.
 
          5.  The Service and the Union agree that, on or before March 1,
       1985, the data collected by the Occupational Safety and Health
       Administration in accordance with proposal Number 2 above, will be
       submitted to Dr. Walter Decker, a toxicologist with offices in El
       Paso, Texas.  Dr. Decker will review the data and make a report to
       the Occupational Safety and Health Administration concerning the
       impact of one-hour rotations on immigration inspectors.  The
       Service and the Union agree to share equally the costs of Dr.
       Decker's study and report.
 
          6.  The Service and the Union agree to abide by the
       recommendations of the Occupational Safety and Health
       Administration made after that agency has reviewed Dr. Decker's
       report.
 
    On December 14, 1984, the parties met to discuss the proposals
 regarding the one-hour rotations.  During this meeting, the Respondent's
 representatives met separately to discuss the Unions' proposals.  When
 they returned to the meeting with the Union, there was no further
 discussion since the Union was informed that they would have to talk
 with District Director Giugni regarding the proposals.  At this meeting
 the Respondent furnished proposals to the Union, as follows:
 
          1.  The District agrees to the extent possible to provide for
       employees safety by rotating employees performing the inspectional
       functions through the various phases of work available within the
       functions during each shift on a fair and equitable basis except
       where for an emergency, sound management requires a deviation.
 
          2.  In determining the rate at which employees assigned shall
       rotate through the vehicular inspection function the District
       agrees to consider among other factors the number of employees
       available on a given shift, the air quality at the port of entry
       as determined by an annual survey conducted by the Service's
       Safety and Health Program managers, the need or lack thereof, for
       the utilization of available employees on other functions as
       determined by the shift supervisor.
 
          3.  The District agrees that consistent with the manpower needs
       except in cases of emergency, the District shall observe the
       recommended guidelines of the OSHA under their eight-hour time
       weighed average as determined by annual pollution checks in
       determining how frequently to rotate employees through the various
       inspections functions.
 
          4.  The District agrees that it will make every reasonable
       effort to relieve from the vehicular inspection functions on a
       temporary basis any employee who becomes ill in accordance with
       A.M. 2224.  The District agrees that employees shall continue to
       be given light duty assignments as it has in the past on a case by
       case basis depending on written statements made by competent
       physicians and provided that they do not fall within the purview
       of Chapter 339-3, Subchapter 1, of the Federal Personnel Manual
       which requires a fitness for duty examination incertain
       circumstances.
 
          5.  The District agrees that on or before February 1, 1985, a
       letter will have been written to OSHA asking that agency to
       conduct as soon as possible, another pollution level study, and to
       seek the advice of that agency of the need for a report from a
       toxicologist to read their findings.  The District will provide a
       copy of such letter and the response to the union local.  If that
       agency states that there is a need for such a report, the District
       will ask OSHA for a recommendation as to the name of such a doctor
       and if expenses are incurred in connection with such a study, the
       District will share such costs on a 50/50 basis with the union
       local.
 
    On or about December 27, 1984 the Union submitted a list of
 counterproposals, as follows:
 
          1.  The District agrees to provide for employees safety and
       health by rotating employees performing the inspectional functions
       through the various phases of work available within the functions
       during each shift, to the extent possible, on a fair and equitable
       basis except where for an emergency, sound management requires a
       deviation.
 
          2.  In determining the rate at which employees assigned shall
       rotate through the vehicular inspection function, the District
       agrees to consider among other factors the number of employees
       available on a given shift, the air quality at the port of entry
       as determined by hourly monitoring under the supervision and
       direction of the U.S. Occupational Safety and Health
       Administration (OSHA), pertinent weather factors and the need or
       lack thereof for the utilization of available employees on other
       functions as determined by the shift supervisor.
 
          3.  Acceptable, except for word "annual."
 
          4.  We need time to read A.m. 2224 and Chapter 339-3,
       Subchapter 1, Federal Personnel Manual, before responding.
 
          5.  The District and the Union agree that, within 5 working
       days of reaching agreement on this proposal, they will transmit a
       letter to OSHA asking that agency to conduct as soon as possible
       another pollution level study the result of which the Union and
       the District agree to accept as conclusive on the question of what
       amount of exposure on the part of immigration inspectors is safe.
       This letter will also request that OSHA provide the District and
       the Union with the names of three Ph.D toxicologists, qualified to
       evaluate raw data from OSHA.  From this list, the Union and the
       District may each strike one name.  The remaining toxicologist
       will evaluate the raw data collected by OSHA and make a report to
       them, which OSHA will consider in making their recommendation
       concerning safe exposure levels.  The District and the Union will
       share equally the costs of the toxicologist's study and report.
       The letter to OSHA will also represent that that agency determine
       the feasibility of continuous monitoring of pollution levels at
       the Internationl Bridges, with a view towards structuring rotation
       intervals, so that inspectors will rotate at shorter intervals
       when pollution levels are high and longer intervals when they are
       low.
 
    The next meeting was held on or about January 9, 1985.  During this
 meeting, Shirley Epperson, the Respondent's representative from the
 regional office, declared certain Union proposals or portions thereof to
 be nonnegotiable.  Mr. Milligan then stated that it appeared the parties
 were at impasse.  By letter dated January 22, 1985, the Respondent
 confirmed its position that certain of the Union's proposals were
 nonnegotiable, as follows:
 
          Proposal No. 1
 
          This is non-negotiable, pursuant to Article 50, as it
       paraphrases and conflicts with Article 17I of the Master
       Agreement.
 
          Proposal No. 2
 
          That portion of the proposal which relates to "hourly
       monitoring under the supervision and direction of the U.S.
       Occupational Safety and Health Administration (OHSA)" is
       non-negotiable as it interferes with Management's rights to assign
       work pursuant to 5 USC 7106(a)(2)(B).  Additionally, the Service
       cannot negotiate regarding functions and duties of another agency.
 
          Proposal No. 4
 
          This is non-negotiable, pursuant to Article 50, as it
       paraphrases Article 36, 18, and 20 of the Master Agreement.
 
          Proposal No. 5
 
          That portion of the proposal which relates to the expenditures
       of funds is non-negotiable as it interferes with Management's
       rights to determine its budget as provided in 5 USC 7106(a)(1).
       That portion of the proposal which relates to duties or functions
       to be performed by OSHA is non-negotiable regarding duties or
       functions of another agency.
 
    Since the rotation period on primary vehicular inspections was
 changed from one half hour to one hour on December 17, 1984, inspectors
 spend one half hour working on one vehicular lane, and then switch to
 another vehicular lane for another half hour.  They then work on the
 pedestrian lane or inside the building.  They spend a total of from four
 to four and one half hours on primary vehicular inspections during an
 eight hour shift.
 
    Since the change was made two of the 70 employees have had to recieve
 emergency medical treatment on a one-time basis for what was diagnosed
 as mild or minor carbon monoxide poisoning.  Another employee has seen
 his doctor for chest problems.  The president of Local 1210 testified
 that other employees have complained to her of similar problems.  The
 number of these employees was not disclosed.  She testified that about
 5-6 employees had expressed a fear of seeking medical treatment.  The
 record does not reflect the basis for such alleged fear.  Overall the
 total amount of sick leave used by employees has decreased after the
 change.
 
    Respondent arranged for on-site testing of carbon monoxide exposure
 levels during the week in which the change was implemented.  The
 employee exposure level did not exceed the OSHA standard during that
 period.  Respondent also purchased oxygen tanks for both bridge
 locations in order to expel carbon monoxide from the body should it be
 ingested.  There is no evidence of a permanent system to measure
 pollution on the bridge on a daily, shift, or other regularly scheduled
 basis.
 
                             Issues Presented
 
          1.  Whether Respondent was obligated to negotiate over the
       substance of its decision.
 
          2.  If not, whether the impact or reasonably foreseeable impact
       of the exercise of a management right on bargaining employees was
       more than de minimis so as to require bargaining on impact and
       implementation.
 
          3.  If so, whether Article 3G (1979) or Article 9A (1984), as
       interpreted, authorized Respondent to implement its decision prior
       to reaching agreement.
 
          4.  If not, whether Respondent provided the Union proper notice
       and the opportunity to negotiate prior to implementation.
 
          5.  Whether Respondent has failed and refused to bargain in
       good faith since the implementation of the change.
 
          6.  Whether the Union proposals were nonnegotiable, as asserted
       by Respondent.
 
                Discussion, Conclusions, and Recommendation
 
    Management's right to assign work under section 7106(a)(2)(B) of the
 Statute /4/ includes the right to allocate specific amounts of time
 within which specific tasks will be accomplished.  National Federation
 of Federal Employees, Local 1263 and Defense Language Institute, Foreign
 Language Center Presidio of Monterey, California, 7 FLRA 723 (1982);
 American Federation of Government Employees, AFL-CIO, Local 3631 and
 Environmental Protection Agnecy, 11 FLRA 637 (1983);  National Treasury
 Employees Union and Department of the Treasury, Bureau of the Public
 Debt, 3 FLRA 769 (1980) aff'd sub. nom.  NTEU v. FLRA, 691 F.2d 553
 (D.C. Cir. 1982).  Accordingly, Respondent did not owe a duty to the
 Union to negotiate over the substance of its decision to change the
 amount of time employees serve on primary vehicular inspection duty from
 30 minutes at a time to one hour at a time.
 
    Subsection 7106(b), however, provides that management's exercise of
 any authority contained in subsection (a) does not preclude negotiations
 concerning the procedures to be observed in exercising the authority
 (section 7106(b)(2) or appropriate arrangements for adversely affected
 employees (section 7106(b)(3).  /5/ The Authority has held that "where
 an agency in exercising a management right under section 7106 of the
 Statue, 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." (Footnote
 omitted.) See U.S. Government Printing Office, 13 FLRA 203, 204-205
 (1983).  The Authority thereafter held that "no duty to bargain arises
 from the exercise of a management right that result in an impact or a
 reasonably foreseeable impact on bargaining unit employees which is not
 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.  /6/
 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.
 
    Turning to the instant case, with respect to the nature of the change
 on conditions of employment of unit employees, it is noted that the work
 duties performed by employees were not affected.  The change from 30
 minutes to one-hour rotation did not increase the employees' total time
 on the vehicular traffic lanes per shift, but did increase the length of
 the time periods during which they were exposed to fumes on the
 vehicular lanes.  The record reflects that carbon monoxide levels did
 not exceed the OSHA permissible exposure limit for employees sampled
 during the various test periods prior to and immediately after the
 change.  Only three of the 70 employees have sought medical attention
 since the change, about 4 percent of the employees.  However, the record
 reflects that both parties have recognized the potential health and
 safety implications of working on the vehicular lanes for some time.
 Management installed oxygen tanks on the scene when the change went into
 effect.  The record does not reflect any established procedure for
 periodic testing.  Thus, the impact and reasonably foreseeable impact of
 the change was primarily in terms of employees' safety and health, an
 area worthy of serious consideration.  The duration of the change as it
 affected unit employees was permanent.  As to the number of employees
 affected and the size of the bargaining unit, the record indicates that
 about 70 employees were affected out of a substantially larger
 nationwide unit.  There is evidence that the parties have bargained over
 similar matters in the past primarily due to concern over the safety and
 health of employees.  The record reflects an October 1979 local
 agreement dealing with the rotation period of employees on the vehicular
 inspection lanes.  There is also a provision in the master agreement
 concerning fair and equitable rotation from vehicular to non-vehicular
 inspection assignments.  Accordingly, based on the totality of the facts
 and circumstances presented, it is concluded 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.
 
    The Authority has held that the duty to negotiate in good faith under
 the Statute requires that a party meet its obligation to negotiate prior
 to making changes in established conditions of employment, during the
 term of a collective bargaining agreement, absent a clear and
 unmistakable waiver of bargaining rights.  Department of the Air Force,
 Scott Air Force Base, Illinois, 5 FLRA 9 (1971).  Management is required
 to provide adequate notice of the proposed change to the exclusive
 representative in order to allow the union to request negotiations, if
 it chooses, and to allow the parties reasonable time to complete the
 negotiations prior to implementation, absent a compelling need to
 implement prior to the completion of the bargaining process.  Long Beach
 Naval Shipyard, Long Beach, California, 17 FLRA No. 76, 17 FLRA 518
 (1983);  Bureau of Government Financial Operations Headquarters, 11 FLRA
 338, 343 (1981).
 
    Respondent defends, in part, on the basis that neither Article 3G
 (1979) nor Article 9A (1984) of the Master agreement requires it to
 negotiate or reach agreement prior to implementation of a change in
 working conditions at the local level.  Respondent relies upon a
 decision to this effect by an arbitrator, involving the same parties, an
 exception to which was denied by the Authority in American Federation of
 Government Employees, Local 1210 and Immigration and Naturalization
 Service, 8 FLRA 94 (1982).  The dispute in that matter arose when the
 Activity decided to make changes in the supervision and assignments of
 employees at certain duty stations.  The Union filed a grievance which
 was ultimately submitted to arbitration claiming that management
 violated the parties' collective bargaining agreement by the manner in
 which the changes were implemented.  The Union contended in part before
 the Arbitrator that Article 3.G of the parties' agreement had been
 violated as a result of the Activity's refusal to negotiate over the
 impact of the change on employees.  As a remedy, the Union requested
 that the Arbitrator order the Activity "to restore the work situation as
 it existed prior to the filing of the case and that the Service be
 ordered to enter into formal negotiations with it concerning the
 change."
 
    In agreement with the Union the Arbitrator ruled that the Activity
 had violated Article 3.G by refusing to negotiate on the impact of the
 changes and found as follows:
 
          The undersigned believes that Union's request for negotiations
       was proper under these circumstances.  He finds that the Service
       should schedule a meeting where negotiations can take place in
       accordance with the plain language of the Agreement.  He does not
       believe, however, that the Service is obligated to rescind the
       rotational change orders pending those negotiations.  He is of the
       opinion that Article 3(G) does not require that decisions relating
       to changes impacting on employees must be subject to negotiations
       before a change is made.  Rather, he finds that the Article
       requires only that negotiations be had on the subject matter if an
       when a request is made by either party.  (Emphasis by the
       Arbitrator.)
 
    On this basis he made the following award:
 
          The terms of the collective bargaining agreement require that
       if a request is made to the Union, the Service must negotiate on
       changes such as occurred on December 16, 1979, at El Paso.  The
       grievance of the Union is sustained in part and denied in part in
       accordance with the opinion expressed above.
 
    In its exception, the Union alleged that the Arbitrator's award was
 contrary to the Statute because it was inconsistent with the duty to
 bargain as set forth in sections 7114 and 7117.  In particular, the
 Union argued that in the circumstances of this case the Arbitrator was
 compelled by the Statute to decide that the Activity's changes could not
 properly have been implemented until negotiations had taken place.
 
    The Authority held that the Union's exception did not establish "that
 the award is in any manner contrary to the Statute." The Authority also
 stated:
 
          As noted, the Arbitrator in response to the Union's contentions
       addressed the grievance in terms of whether the Activity had
       violated the parties' agreement.  Although he found that the
       Activity's actions violated Article 3.G and ordered the Activity
       to negotiate on request, he determined that there was no
       requirement under the agreement for the Activity to negotiate on
       the impact of the changes before those changes are made.
       Consequently, he did not grant the Union's request to order that
       the work situation as it existed before change be restored.  The
       Arbitrator's award does not address what obligations the Activity
       may have had under the Statute, but rather is restricted solely to
       the interpretation and application of the agreement and to the
       fashioning of a remedy for its violation.  /2/ The Union has
       failed to demonstrate that the Statute compelled the Arbitrator to
       to adopt the interpretation of the agreement asserted by the Union
       and to adopt the requested remedy.  Thus, the Union's exception
       constitutes nothing more than disagreement with the Arbitrator's
       interpretation and application of the agreement.  It is well
       established that this provides no basis for finding the award
       deficient and accordingly the Union's exception is denied.  E.g.,
       American Federation of Government Employees (AFL-CIO) Local 1770
       and Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg,
       N.C., 6 FLRA No. 62 (1981).
 
    As noted, the Authority held that the "Arbitrator's award does not
 address what obligations the Activity may have under the Statute, but
 rather is restricted soley to the interpretation and application of the
 agreement and to the fashioning of a remedy for its violation." This
 unfair labor practice case, on the other hand, does not involve
 essentially conflicting interpretations of the agreement, but bargaining
 rights under the Statute.  Thus, the Arbitrator's decision is not
 dispositive of this unfair labor practice case.  See section 7116(d) of
 the Statute.  See also U.S. Customs Service, Region VIII, San Francisco,
 California, 18 FLRA No. 51, 18 FLRA 377 (1985) (wherein the Authority
 adopted the Judge's finding that the Union had contractually waived its
 right to file an unfair labor practice charge, but specifically did not
 adopt his discussion with regard to the private sector doctrine of
 deferral to negotiated arbitration procedures.)
 
    As stated above, the duty to negotiate in good faith under the
 Statute requires that a party meet its obilgation to negotiate prior to
 making changes in established conditions of employment, absent a clear
 and unmistakable waiver.  Neither Article 3G (1979) nor Article 9A
 (1984) is inconsistent with the obligation to negotiate under the
 Statute prior to making changes in established conditions of employment.
  It establishes a procedure for management to give notice of the
 "changes it wishes to make." It also provides for the presentation of
 views by the Union "which must be responsive to either the proposed
 change or the impact of the proposed change" within a set period of
 time.  Finally, it provides for the opportunity for formal negotiations
 if disagreement exists.  Nothing in the Article directly and
 specifically reserves to management the sole right to make changes in
 conditions of employment prior to the completion of the bargaining
 process.  Accordingly, it is concluded that the agreement does not
 constitute a clear and unmistakable waiver of bargaining rights.
 Department of the Air Force, Scott Air Force Base, supra;  United States
 Department of Labor, 16 FLRA No. 129, 16 FLRA 969 (1984);  Veterans
 Administration, Central Office, Washington, D.C. and Veterans
 Administration Regional Office, Cleveland, Ohio, 20 FLRA No. 27, 20 FLRA
 199 (1985).
 
    Turning to the facts of this case, the record reflects that the
 Union, upon being notified by Respondent on November 13, 1984 of its
 intention to implement the proposed change, presented its views at
 meetings on November 27, 1984 and December 6, 1984, and made clear that
 it was requesting formal negotiations, pursuant to Article 3G of the
 agreement, should disagreement exist.  The Union offered several
 proposals for Respondent's consideration, including continuous
 monitoring of pollution levels.  Respondent's notice dated December 12,
 1984 (Wednesday) that the change would be implemented on December 17,
 1984 (Monday) did not acknowledge the Union's standing request for
 bargaining on its proposals.  The notice allowed insufficient time for
 the Union to reiterate its bargaining request and for the parties to
 complete the negotiations prior to implementation.  Respondent presented
 no evidence to show when it actually mailed the letter.  Further, the
 evidence shows that Respondent was in the practice of hand-delivering
 correspondence to Union officials, including the Union's attorney.  The
 December 12, 1984 letter in this instance was not received by the
 Union's attorney until the afternoon of the date of implementation,
 December 17, 1984.  Clearly, under the circumstances, Respondent did not
 do all that could reasonably be expected in order to provide adequate,
 timely notice /7/ to enable the parties to complete negotiations prior
 to implementation.  There is neither a contention nor any indication in
 the record that Respondent's implementation prior to the completion of
 bargaining process was based on a compelling need.  Accordingly,
 Respondent's implementation of the change on December 17, 1984, without
 providing the Union proper notice and the opportunity to negotiate
 pursuant to section 7106(b)(2) and (3) violated section 7116(a)(1) and
 (5), as alleged.
 
    The next issue for determination is whether, as alleged, Respondent
 has continued to refuse to bargain in good faith since the
 implementation of the change.  The record reflects that, following
 implementation, the parties met, exchanged proposals, and Respondent
 eventually declared two of the Union's proposals to be non-negotiable
 under the Statute.  /8/ If, in fact, the Union proposals were
 nonnegotiable or negotiable only at the election of the Agency, the
 Respondent's refusal to negotiate would not be in violation of section
 7116(a)(1) and (5) of the Statute.  Department of Health and Human
 Services, 19 FLRA No. 8, 19 FLRA 73 (1985).  The proposals were:
 
          2.  In determining the rate at which employees assigned shall
       rotate through the vehicular inspection function, the District
       agrees to consider among other factors the number of employees
       available on a given shift, the air quality at the port of entry
       as determined by hourly monitoring under the supervision and
       direction of the U.S. Occupational Safety and Health
       Administration (OSHA), pertinent weather factors and the need or
       lack thereof for the utilization of available employees on other
       functions as determined by the shift supervisor.  (Only the
       underlined portion is in dispute).
 
          5.  The District and the Union agree that, within 5 working
       days of reaching agreement on this proposal, they will transmit a
       letter to OSHA asking that agency to conduct as soon as possible
       another pollution level study the result of which the Union and
       the District agree to accept as conclusive on the question of what
       amount of exposure on the part of immigration inspectors is safe.
       This letter will also request that OSHA provide the District and
       the Union with the names of three Ph.D toxicologists, qualified to
       evaluate raw data from OSHA.  From this list, the Union and the
       District may each strike one name.  The remaining toxicologist
       will evaluate the raw data collected by OSHA and make a report to
       them, which OSHA will consider in making their recommendation
       concerning safe exposure levels.  The District and the Union will
       share equally the costs of the toxicologist's study and report.
       The letter to OSHA will also request that that agency determine
       the feasibility of continuous monitoring of pollution levels at
       the International Bridges, with a view towards structuring
       rotation intervals, so that inspectors will rotate at shorter
       intervals when pollution levels are high and longer intervals when
       they are low.  (Only the underlined portion is in dispute).
 
    With respect to proposals 2, Respondent contended that the underlined
 portion interfered with management's right to assign work pursuant to
 section 7106(a)(2)(B).  Additionally, Respondent contended that it
 cannot negotiate regarding functions and duties of another agency.
 
    The Authority has stated that proposals to require management to
 consider health and safety factors in assigning work are not
 inconsistent with the Statute, but proposals which would actually
 preclude the assignment of work are nonnegotiable.  American Federation
 of Government Employees, Local 2082, AFL-CIO, 12 FLRA 72, 91 (1983);
 National Federation of Federal Employees, Local 1167 and Department of
 the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead
 Air Force Base, Florida, 6 FLRA 574, 585, (1981) and International
 Association of Fire Fighters Local F-61 and Philadelphia Naval Shipyard,
 3 FLRA 438 (1980).  See also National Treasury Employees Union, 5 FLRA
 250, 256 (1977).
 
    Insofar as proposal 2 would require "hourly monitoring" by agency
 employees, it is inconsistent with management's right to assign work.
 The Authority has held that the right to assign work includes the right
 to determine when such assignments will occur and when the work which
 has been assigned will be performed.  National Treasury Employees Union,
 3 FLRA 769 775 (1980).  Insofar as the proposals requires inspections to
 be under the supervision and direction of OSHA or other outside bodies,
 it also interferes with management's right to assign work.  It would
 require the agency to relinquish its statutory authority to assign work,
 which includes the right to assign particular duties to particular
 employees.  American Federation of Government Employees, AFL-CIO, Local
 2786, 20 FLRA No. 26, 20 FLRA 193 (1985) (Provision 3).  In this regard
 it is noted that section 1-201 of Executive Order 12196 provides that
 the head of each agency shall, among other things, operate an
 occupational safety and health program in accordance with the
 requirements of the Order and basic program elements promulgated by the
 Secretary of Labor.  The head of each agency is also required to assure
 that periodic inspection of all agency workplaces is performed by
 personnel with equipment and competence to recognize hazards and the
 prompt abatement of unsafe and unhealthy working conditions.  45 FR
 12769, 3 CFR, 1980 Comp. p. 145.
 
    With respect to proposal 5, Respondent contended that the underlined
 portions which relate to duties or functions to be performed by OSHA are
 nonnegotiable as the Service cannot negotiate regarding the duties or
 functions of another agency.  Further, Respondent asserted that the
 portion of the proposals relating to the expenditure of funds interferes
 with management's right to determine its budget.
 
    A request that OSHA perform a safety inspection is within the duty to
 bargain.  United States Department of the Treasury, Internal Revenue
 Service, Dallas District, 19 FLRA No. 115, 19 FLRA 979 (1985).  However,
 the portion of the proposal specifying what OSHA may consider in making
 its recommendation concerning safe exposure levels is outside the duty
 to bargain because, as contended by the Respondent, it relates to duties
 and functions performed by another agency and is not directly concerned
 with conditions of employment of members of the bargaining unit within
 the meaning of section 7103(a)(14).  Similarly, for the reasons stated
 above, that portion of the proposal which literally provides or suggests
 that OSHA will structure rotation intervals for unit employees in light
 of pollution levels interferes with management's right to assign work.
 In this regard, it is noted that section 1-401(g) of Executive Order
 12196, supra, provides that the Secretary of Labor shall provide
 "technical services to agencies upon request.  These services may
 include studies of accidents, causes of injury and illness,
 identification of unsafe and unhealthful working conditions, and means
 to abate them." Further, that the Secretary of Labor may make
 recommendations to the agency for correcting any violation.  (section
 1-401(i)).  Thus, a proposal that the Secretary of Labor (OSHA) be
 requested to provide services within the scope of its responsibilities
 as outlined would be within the duty to bargain.
 
    That portion of the proposal 5 which provides that Respondent and the
 Union will share equally the costs of a toxicologist's study and report
 is within the duty to bargain.  Respondent has not demonstrated that
 such costs would be "significant and unavoidable and . . . not offset by
 compensating benefits . . . (so as) to violate the agency's right to
 determine its budget under section 7106(a) of the Statute." American
 Federation of Government Employees, AFL-CIO, and Air Force Logistics
 Agency, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980),
 enforced as to other matters sub nom. Department of Defense v. Federal
 Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied
 sub nom. AFGE v. FLRA, 455 U.S. 945 (1982);  American Federation of
 Government Employees, Local 3488, 12 FLRA 532, 536 (1983).
 
    In view of the above findings that certain of the proposals submitted
 by the Union were within the duty to bargain, to that extent the
 Respondent's defense to the refusal to bargain since implementation of
 the change in rotation periods cannot be sustained.  Therefore, the
 Respondent's failure or refusal to bargain over the procedures to be
 observed and appropriate arrangements for employees adversely affected
 constituted a violation of section 7116(a)(1) and (5) of the Statute.
 
    The General Counsel has requested a status quo ante order.  In this
 regard, it is noted that the Respondent provided the Union with prior
 notice of the proposed change and discussed the matter with the Union,
 but ultimately implemented the change without having completed the
 collective bargaining process.  Respondent did so on the basis of its
 good faith but erroneous belief that the collective bargaining
 agreement, as interpreted by an arbitrator, did not require it to
 complete negotiations prior to implementation.  Moreover, it is noted
 that while the health and safety impact on employees has been and is, a
 serious continuing concern in this matter and merits full exploration in
 negotiations, there is no evidence that inspectors have been exposed to
 levels of pollution exceeding permissible limits or that serious medical
 consequences have ensued, at least on a short-term basis, since the
 change was made.  Thus, a requirement that management rescind the
 change, which was imposed to improve the efficiency of the operations by
 facilitating the movement of vehicular traffic and improving the overall
 quality of inspections, would create a serious disruption and is not
 warranted.  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), it is concluded that an order giving the Union an
 opportunity to bargain concerning procedures to be observed in
 implementing such change and concerning appropriate arrangements for
 unit employees adversely affected will best effectuate the purposes and
 policies of the Statute.
 
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following:
 
                                   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 Justice, United States
 Immigration and Naturalization Service, El Paso District office, shall:
 
    1.  Cease and desist from:
 
          (a) Instituting changes in the rotation periods for employees
       working on primary vehicular inspections lanes at the El Paso port
       of entry without affording the American Federation of Government
       Employees, AFL-CIO, Local 1210, the designated representative of
       its employees in the El Paso District, the opportunity to bargain
       concerning the procedures for implementing such changes and
       appropriate arrangements for employees adversely affected by such
       changes.
 
          (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, negotiate in good faith, with the American
       Federation of Government Employees, AFL-CIO, Local 1210, the
       designated representative of its employees, concerning the
       procedures to be observed and appropriate arrangements for
       employees adversely affected by the December 17, 1984 change in
       the rotation period for employees working on primary vehicular
       inspection lanes at the El Paso port of entry, including, but not
       limited to, the proposal found to be negotiable by the Authority.
 
          (b) Notify the American Federation of Government Employees,
       AFL-CIO, Local 1210, the designated representative of its
       employees, with regard to any future changes in the rotation
       period for employees working on primary vehicular inspection lanes
       at the El Paso port of entry and afford it the opportunity to
       bargain concerning the procedures for implementing such changes
       and appropriate arrangements for employees adversely affected by
       such changes.
 
          (c) Post at its facilities 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 District
       Director, or his designee, and shall be posted and maintained by
       him for 60 consecutive days thereafter, in conspicuous places,
       including all bulletin boards and other places where notices to
       employees are customarily posted.  Reasonable steps shall be taken
       to insure that such notices are not altered, defaced, or covered
       by any other material.
 
          (d) Pursuant to 5 C.F.R. Section 2423.30 notify the Regional
       Director, Region Six, Federal Labor Relations Authority, Dallas,
       Texas, in writing, within 30 days from the date of this order, as
       to what steps have been taken to comply herewith.
 
                                       /s/ GARVIN LEE OLIVER
                                       Administrative Law Judge
 
    Dated:  November 7, 1985
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Also in 1979, INS and AFGE reached agreement in a master contract
 which provided that the "agreement is not intended to abolish, solely by
 exclusion therefrom, and local or regional undertakings or agreements
 which have been mutually acceptable at the local or regional level."
 
    (2) Accordingly, based on our conclusion, we find it unnecessary to
 address the Respondent's remaining exceptions relating to the Judge's
 impact and implementation findings.
 
    (3) On September 21, 1984 the parties signed a new master agreement.
 Distribution and implementation was delayed pending approval by the head
 of the Agency.  Article 17I remained the same in the 1984 agreement.
 Article 9A of the 1984 agreement also contains the same language as
 article 3G in the 1979 agreement.
 
    (4) Section 7106.  Management rights
 
    (a) Subject to subsection (b) of this section, nothing in this
 chapter shall affect the authority of any management official of any
 agency--
 
          (2) in accordance with applicable laws--
 
          (B) to assign work, to make determinations with respect to
       contracting out, and to determine the personnel by which agency
       operations shall be conducted.
 
    (5) Section 7106(b)(3) provides:
 
    (b) Nothing in this section shall preclude any agency and any labor
 organization from negotiating--
 
          (2) procedures which management officials of the agency will
       observe in exercising any authority under this section;  or
 
          (3) appropriate arrangements for employees adversely affected
       by the exercise of any authority under this section by such
       management officials.
 
    (6) 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.
 
    (7) See U.S. Customs Service, 18 FLRA No. 34, 18 FLRA 263, 273
 (1985).
 
    (8) Two proposals (No. 1 and 4) were declared to be non-negotiable
 under the terms of the master agreement.  Inasmuch as the agreement
 (Article 50) contains a procedure which the parties themselves have
 established to resolve such controversies no consideration will be given
 these proposals.  The dispute involves a differing and arguable
 interpretation of the agreement in this regard.  Veterans
 Administration, Veterans Administration Medical Center, Muskogee,
 Oklahoma, 19 FLRA No. 122, 19 FLRA 1054 (1985) (Case No. 6-CA-804).
 
 
 
 
 
                                 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 institute changes in the rotation period for employees
 working on primary vehicular inspection lanes at the El Paso port of
 entry without affording the American Federation of Government Employees,
 AFL-CIO, Local 1210, the designated representative of our employees in
 the El Paso district, the opportunity to bargain concerning the
 procedures for implementing such changes and appropriate arrangements
 for employees adversely affected by such changes.
 
    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, negotiate in good faith with the American
 Federation of Government Employees, AFL-CIO, Local 1210, the designated
 representative of our employees, concerning the procedures to be
 observed and appropriate arrangements for employees adversely affected
 by the December 17, 1984 change in the rotation period for employees
 working on primary vehicular inspecti