25:0161(10)CA - Treasury, Customs Service and Customs Service Region IX, Chicago, IL and NTEU -- 1987 FLRAdec CA
[ v25 p161 ]
The decision of the Authority follows:
25 FLRA No. 10 DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE AND U.S. CUSTOMS SERVICE, REGION IX CHICAGO ILLINOIS Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 5-CA-30046 (17 FLRA 221) DECISION AND ORDER ON REMAND I. Statement of the Case This case is before the Authority pursuant to a remand from the United States Court of Appeals for the Sixth Circuit, directing the Authority to consider more completely the appropriateness of a status quo ante order and to articulate more fully its reasons for granting or denying the requested backpay remedy. National Treasury Employees Union v. FLRA, 802 F.2d 843 (6th Cir. 1986). The Charging Party filed a "Motion For Entry of Backpay Order and for Further Proceedings Regarding Determination of Scope of Backpay Award," and the Respondent filed an opposition to the motion. II. History of the Case A. The Authority's Decision The complaint in this case alleged that the Respondent, Department of the Treasury, U.S. Customs Service and U.S. Customs Service, Region IX, Chicago, Illinois, violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing a change in the duty hours of inspectional employees at the Detroit Metro Airport without bargaining over the substance, impact and implementation of the change. Prior to the change, customs inspectors had worked a 9:00 a.m. to 5:00 p.m. shift with no formal lunch break or lunch period included in the tour of duty. The Respondent notified the Charging Party (the Union) of its intent to change that tour of duty to 9:00 a.m. to 6:00 p.m. and to include a one-hour non-paid meal period. Bargaining as to the impact of the change took place, and the parties agreed on a thirty-minute non-paid meal period. However, the Respondent refused to bargain over the Union's proposal that the starting and quitting times be 8:30 a.m. to 5:00 p.m., and implemented the 9:30 a.m. to 6:00 p.m. starting and quitting times on November 1, 1982. The parties stipulated that the change in hours did not establish an additional tour of duty but merely changed the existing tour of duty. Additionally, they stipulated that the change had a substantial impact on the working conditions of bargaining unit employees inasmuch as before the change employees had received overtime pay for hours worked beyond 5:00 p.m., but after the change they received overtime pay only for hours worked after 6:00 p.m. On March 18, 1985, the Authority issued its Decision and Order in Department of the Treasury, U.S Customs Service and U.S. Customs Service, Region IX, Chicago, Illinois, 17 FLRA 221 (1985). The Authority found that, although the parties' agreement had contained a waiver of the Union's basic right to bargain over the change in starting and quitting times, the agreement had expired and the Union was no longer bound by the waiver provision. Accordingly, the Authority found that the Respondent was obligated to bargain over the change, and its refusal to do so violated section 7116(a)(1) and (5) of the Statute. The Authority ordered the Respondent to bargain over the change, but denied the General Counsel's requests: (1) for a status quo ante remedy, (2) for an order that backpay be given "to all affected inspectional personnel in the amount they would have earned in overtime pay between the hours of 5:00 p.m. and 6:00 p.m. had this violation not occurred," and (3) for the payment of attorney fees. B. The Court's Opinion The Union sought review of the Authority's Decision only insofar as it denied the requested backpay remedy. The Union sought backpay for the period beginning in November 1982, when the unlawful change took place, to January 1985, when the Union's requested hours were installed and overtime pay for work beyond 5:00 p.m. was restored. Because the Respondent changed the starting and quitting times in January 1985 to 8:30 a.m. to 5:00 p.m., the Union stated to the court that it no longer sought a status quo ante remedy. On September 25, 1986, the Court issued its opinion in National Treasury Employees Union v. FLRA, 802 F.2d 843 (6th Cir. 1986). The court found that the Authority had denied NTEU's request for a backpay order without an appropriate explanation. The court remanded the case to the Authority for a more complete consideration of the appropriateness of a status quo ante order and for an articulation of its reasons for granting or denying the order of backpay. III. Positions of the Parties Following the court's remand, the Union filed its motion for entry of backpay. The Union contends that the court's concerns with the Authority's decision make it clear that an award of backpay should be ordered, subject only to details to be determined by a compliance hearing. It requests that such a hearing be held. The Respondent argues that the Authority should affirm its original decision and deny the request for backpay as not meeting the requirements of the Back Pay Act. The Respondent also opposes the Union's motion as premature, as the Authority has not yet determined how it will rule on the merits of a backpay remedy on remand. IV. Analysis We have fully reviewed the record in this case and considered the positions of the parties in light of the court's expressed concerns and for the reasons discussed below we grant the requested backpay order. As to the appropriateness of a status quo ante order, the Authority had stated that requiring reinstatement of the original tour of duty would be inconsistent with the parties' agreement over the addition of a thirty-minute non-paid meal period. We note that there is no longer a need for, and the Union no longer seeks, a status quo ante order, because, in January 1985, the Respondent changed the starting and quitting times to those requested by the Union. To issue a status quo ante order at this time would not effectuate the purposes of the Statute because it would void the parties' agreement reached in January 1985. As to backpay, the stipulation of the parties states that overtime had always been paid for work performed after 5:00 p.m. and that, as a result of the change, employees were to receive overtime pay only for hours worked beyond 6:00 p.m. The parties also stipulated that this change had a substantial impact on employees. As we view the case, this stipulation is sufficient basis for us to find that but for the unlawful change certain bargaining unit employees who, following the change, worked after 5:00 p.m. would have received overtime pay. See Veterans Administration, Washington, D.C., 22 FLRA No. 69 (1986) (in which the Authority found that a change in starting and quitting times without prior notice and bargaining violated the Statute, and ordered the agency to reestablish the hours of work in existence prior to the change and to compensate employees for the loss of premium pay that resulted from the change). It is undisputed, based on the stipulation, that some employees lost overtime pay as a result of the unlawful change; the question of who should receive overtime compensation and in what amounts is a matter that is appropriately left to the compliance stage of this case. See Department of Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 15 FLRA 867 (1984). See also sections 2423.30 and 2423.31 of the Authority's Rules and Regulations. V. Conclusion Accordingly, having considered the positions of the parties and the facts and circumstances of this case, we shall modify the Authority's original Order. Since the Respondent has instituted the Union's proposal starting and quitting times, a status quo ante order is unwarranted and we shall order only that similar unilateral changes not be made in the future without proper notice and bargaining. Further, we shall order that the Respondent provide backpay as set forth below. In view of our conclusion and our regulations, we deny the Union's motion insofar as it requests "further proceedings" at this time. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Department of the Treasury, U.S. Customs Service and U.S. Customs Service, Region IX, Chicago, Illinois, shall: 1. Cease and desist from: (a) Instituting any change in the starting and quitting times of customs inspectors at the Metro Airport Detroit District without affording the National Treasury Employees Union, the exclusive bargaining representative of its employees, the opportunity to negotiate with respect to such change. (b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Compensate those bargaining unit inspectors who are entitled to backpay with appropriate overtime pay for any time worked after 5:00 p.m. and before 8:00 a.m. on all days between November 1, 1982, when the unlawful change took place, and the date in January 1985 when overtime pay was restored. (b) Post at its facilities in the Metro Airport Detroit District copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Regional Commissioner of Region IX, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director, Region V, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., January 12, 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 any change in the starting and quitting times of customs inspectors at the Metro Airport Detroit District without affording the National Treasury Employees Union, the exclusive bargaining representative of our employees, the opportunity to bargain with respect to such change. 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 compensate those bargaining unit inspectors who are entitled to backpay with appropriate overtime pay for any time worked after 5:00 p.m. and before 8:00 a.m. on all days between November 1, 1982, when the unlawful change took place, and the date in January 1985 when overtime pay was restored. (Activity) Dated: By: (Signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority whose address is: 175 Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604, and whose telephone number is: (312) 353-6306.