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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/ 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.