25:0161(10)CA - Treasury, Customs Service and Customs Service Region IX, Chicago, IL and NTEU -- 1987 FLRAdec CA



[ v25 p161 ]
25:0161(10)CA
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