25:0248(18)CA - Customs Service, Washington, DC and Customs Service, Pacific Region and NTEU -- 1987 FLRAdec CA



[ v25 p248 ]
25:0248(18)CA
The decision of the Authority follows:


 25 FLRA No. 18
 
 UNITED STATES CUSTOMS SERVICE
 WASHINGTON, D.C., AND UNITED STATES
 CUSTOMS SERVICE, PACIFIC REGION
 Respondents
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging party
 
                                            Case No. 8-CA-40453
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached Administrative Law Judge's decision filed by the
 Respondents.  The complaint alleged that on July 1, 1984 the United
 States Customs Service, Washington D.C., and United States Customs
 Service, Pacific Region (Respondents) unilaterally changed working
 conditions by instituting a Radio Preliminary Entry Test (RPET) program
 for vessels in the Pacific Region and failed to bargain with the
 National Treasury Employees Union (Union) regarding the impact and
 implementation of the change.  The complaint further alleged that
 Respondents' conduct violated section 7116(a)(1) and (5) of the Statute.
 
    We conclude, for the reasons discussed below, that the Respondents
 violated the Statute by refusing to negotiate with the Union.
 
                                II.  Facts
 
    Regulations of the United States Customs Service provide for vessels
 to gain preliminary entry upon arriving at a port in order to begin
 loading or unloading cargo and/or passengers. See 19 C.F.R. Section 4.2
 et seq. (1986).  Prior to July 1, 1984, under the preliminary entry
 procedure a Customs Inspector would board the vessel when it arrived at
 a port.  Once on board, the Inspector would review the documentation
 required for entry and perform other duties to ensure that the vessel,
 its crew and cargo were appropriate for entry.
 
    On May 9, 1984 Steve Miller, Chief of Labor-Management and Employee
 Relations for the Pacific Region, notified the Union that an RPET
 program for vessels would be implemented on May 30, 1984.  The new
 program involved a change in the procedure for granting preliminary
 entry to a vessel arriving at a port.  Under the changed procedure the
 vessel agents or Customhouse Brokers could request, at least 24 hours
 before arrival, radio preliminary entry of a vessel by presenting a form
 to the appropriate Customs Marine Office.  Under the program, the
 Pacific Region would conduct a one-year test allowing masters of vessels
 meeting certain conditions to request and receive preliminary entry by
 means of modern radio-telecommunications equipment and/or electronic
 transmission of data.  Upon approval of the application for radio
 preliminary entry, a signed RPET permit is returned to the vessel agent
 or Customhouse broker.  The RPET permit allows the vessel to commence
 operations without the physical boarding by a Customs Inspector.
 
    In a letter dated May 17, 1984 the Union advised Miller that it
 wished to negotiate over the substance, impact and implementation of the
 new program.  The Union also requested documentary information regarding
 RPET and proposed that the directive not be implemented prior to
 completing negotiations (Proposal 1).  Management replied to the Union
 on June 4, 1984, stating that (1) the Union's proposal not to implement
 the plan was nonnegotiable;  (2) RPET would be implemented on July 1,
 1984 since no other proposals were submitted;  and (3) no documentary
 information was available since no special studies were conducted about
 RPET.
 
    On June 8, 1984 the Union repeated its request for information and
 disputed management's claim of nonnegotiability.  The union also
 proposed that the new program not be implemented pending a study to be
 carried out by the union within six months, to evaluate the impact of
 RPET on unit employees (Proposal 2);  implementation be withheld pending
 clarification of the goals for RPET and guidelines for an analysis of
 the test's results (Proposal 3);  unit employees not be disciplined for
 errors resulting from RPET (Proposal 4);  and unit employees not be
 evaluated on the basis of errors arising from RPET (Proposal 5).  On
 June 13, 1984 Miller notified the Union that the agency deemed the
 proposals nonnegotiable because they either had no valid impact on
 employees, or would interfere with the agency's right to discipline
 employees.  /*/ The RPET program was instituted on July 1, 1984.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge concluded that the RPET program was instituted by the
 Respondents without affording the Union an opportunity to bargain
 regarding its impact and implementation.  The Judge also concluded that
 the discontinuation of the practice and condition of employment whereby
 Customs Inspectors boarded the vessels upon entry, with the attendant
 duties associated with such boarding, constituted a change the impact of
 which was more than de minimis in nature.
 
    The Judge found that changes involving the work performance of
 Customs Inspectors arising from the implementation of RPET include the
 following:  (1) it takes Inspectors an additional 2-4 hours to "outturn"
 the ship's manifest after it is received;  (2) Custom Inspectors no
 longer have an opportunity to observe crew and cargo and have no control
 over either since they are not on the ship when crew and cargo are
 discharged;  (3) the Inspectors cannot search a crew or visitors who may
 be bringing in articles illegally upon the ship's arrival and then make
 necessary arrests;  (4) Inspectors can no longer make seizures of
 contraband or undeclared currency and write up necessary penalties
 because they are not on board;  and (5) Inspectors are no longer in a
 position to make observations or judgments relating to the
 documentation, the crew, or such vessel problems causing pollution so as
 to aid other Customs officials in enforcement.  As a result of the new
 entry procedure the Customs Inspectors stood to lose 10 percent to 25
 percent of their overtime pay.  A new Employee Performance Appraisal
 System (EPAS) was also instituted by the agency for Customs Inspectors.
 
    The Judge further found that:  (1) the four proposals submitted by
 the Union on June 8, 1984 were negotiable;  (2) the matter was not
 previously negotiated by the parties or covered in the national and
 supplemental agreements;  and (3) section 7116(d) of the Statute does
 not bar the Union's unfair labor practice charge because the Union's
 previous negotiability appeal did not involve the same issues raised in
 the unfair labor practice charge.
 
    Accordingly, the Judge found that the Respondents violated section
 7116(a)(1) and (5) of the Statute.
 
                       IV.  Positions of the Parties
 
    The Respondents contend in their exceptions that the Judge erred in
 concluding that section 7116(d) does not preclude the filing of the
 Union's unfair labor practice charge.  Respondents also except to the
 Judge's conclusions that the changes in working conditions had effects
 on employees which were more than de minimis and that the Union's
 proposals concerning the RPET program were negotiable.
 
    The General Counsel filed a Brief Answering Exceptions to the
 Administrative Law Judge's Decision which supported the Judge's findings
 and conclusions.
 
                               V.  Analysis
 
                            A.  Section 7116(d)
 
    We find that the unfair labor practice complaint in this case is not
 barred by the provisions of section 7116(d) of the Statute.  The
 procedure for resolving negotiability disputes set forth in section
 7117(c) of the Statute is not an appeals procedure within the meaning of
 section 7116(d).  Section 7116(d) is intended to preclude parties from
 raising as an unfair labor practice issues which can properly be raised
 under statutory appeals procedures such as procedures involving the
 Merit Systems Protection Board, Department of Justice, Immigration and
 Naturalization Service, 17 FLRA 227, 235 n. 2 (1985), or the Equal
 Employment Opportunity Commission, Department of Defense, Defense
 Mapping Agency Aerospace Center, St. Louis, Missouri, 17 FLRA 71, 79
 (1985).  Negotiability issues, on the other hand, may be raised under
 the section 7117 negotiability procedure and under the section 7118
 unfair labor practice procedure;  a party filing under both procedures
 may select to have one processed first.  See sections 2423.5 and 2424.5
 of the Authority's Rules and Regulations.  See also National Treasury
 Employees Union and Department of Health and Human Services, Region VII,
 Office of Human Development Services, 17 FLRA 589 (1985).  Accordingly,
 we reject the Respondents' contention that section 7116(d) bars our
 consideration of this unfair labor practice complaint.
 
             B.  Nature and Extent of the Effect or Reasonably
 
                Foreseeable Effect of the Change
 
    In Department of Health and Human Services, Social Security
 Administration and American Federation of Government Employees, AFL-CIO,
 Local 1760, 24 FLRA No. 42 (1986), we reassessed and modified the de
 minimis standard previously used to identify changes in conditions of
 employment that require bargaining.  We stated that in order to
 determine whether a change in conditions of employment requires
 bargaining, we would carefully examine the pertinent facts and
 circumstances presented in each case;  and that in examining the record,
 principal emphasis would be placed on such general areas of
 consideration as the nature and extent on conditions of employment.  We
 also stated that equitable considerations would be taken into account in
 balancing the various interests involved;  that the number of affected
 employees and the parties' bargaining history would be given limited
 application;  and that the size of the bargaining unit would no longer
 be applied.
 
    The facts in this case clearly show that the implementation of the
 Radio Preliminary Entry Test Program had a reasonably foreseeable effect
 on bargaining unit employees which gave rise to a duty to bargain.  The
 Agency failed to meet its statutory obligation when it refused to meet
 with the Union and afford it an opportunity to negotiate on appropriate
 accommodations for employees adversely affected by the RPET program.
 
    We disagree with the Agency's assertion that the implementation of
 the RPET program involved only an insignificant impact on Customs
 Inspectors.  The record reveals that Customs Inspectors, under the RPET,
 would no longer board entering vessels to conduct preliminary entry
 evaluations.  An important aspect of the preliminary entry procedure
 prior to the July 1, 1984 change was the physical inspection of crew,
 cargo and ship documentation by Customs Inspectors.  Inspectors were
 required to grant or deny entry based on their observations and personal
 judgments concerning these items and were evaluated on how well they
 performed these duties.  Additionally, when inspectors were called to
 board ships outside of their regular work hours, it was a condition of
 their employment that overtime was earned for work performed during
 those non-regular periods.  With the change in this procedure there was
 a foreseeable loss of 10 per cent to 25 percent overtime for at least
 250 Customs Inspectors.
 
                  C.  The Negotiability of the Proposals
 
    Having resolved the preceding two issues, we now turn to the agency's
 argument that it did not commit an unfair labor practice because the
 four proposals over which the Union sought to bargain (discussed at p.2)
 are nonnegotiable.  See, for example, Department of the Air Force, Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 22 FLRA
 No. 4 (1986).  For the following reasons, we find that one of the four
 proposals is negotiable.  Therefore, the agency did commit an unfair
 labor practice when it failed to bargain on the negotiable proposal.
 
    The record indicates that in carrying out that part of its mission
 which is to enforce customs and related laws the Agency has chosen to
 implement the RPET program.  Such a decision constitutes the choice of
 the means of performing work within the meaning of section 7106(b)(1) of
 the Statute.  See National Treasury Employees Union and U.S. Customs
 Service, Region VII, San Francisco, California, 2 FLRA 255 (1979).
 
    Proposal 2 provides that the implementation of RPET be withheld
 pending a study to be carried out by the Union within six months.
 Consistent with the Authority's decision in U.S. Customs Service, Region
 VII, 2 FLRA 255, 261-62 (1979), we conclude that the proposal is
 negotiable.  Proposal 2 is not intended to preclude the Agency from
 carrying out the proposed RPET program, but merely delays the
 implementation pending a Union study to be completed within six months.
 See American Federation of Government Employees, AFL-CIO, Local 1999 and
 Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New
 Jersey, 2 FLRA 153 (1979), enforced sub nom.  Department of Defense v.
 FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom., AFGE v.
 FLRA, 445 U.S. 945 (1982).  It does not interfere with management's
 substantive right to implement the RPET.  See National Treasury
 Employees Union and Department of the Treasury, 24 FLRA No. 54 (1986).
 
    In agreement with the Agency, however, we find that proposal 3 is
 nonnegotiable to the extent that it requires the establishment of
 guidelines for the eventual analysis of test results prior to actual
 commencement of the test program itself.  That is, the proposal does not
 merely obligate the agency to provide the union with any existing
 guidelines, but rather to actually develop guidelines before
 implementing the RPET.  In this circumstance, the agency is prevented
 from deciding to develop guidelines during or after implementation of
 the RPET or from deciding not to develop guidelines at all.  The
 proposal therefore interferes with the Agency's right to determine how
 the RPET will be implemented.  As such it directly interferes with
 managementS determination to institute the RPET program in violation of
 management's right to determine the "methods" and "means" of performing
 the Agency's work under section 7106(b)(1).  See International
 Organization of Masters, Mates and Pilots and Panama Canal Commission,
 13 FLRA 508, 510 (1983) (Union Proposals 3 and 4).
 
    Similarly, proposals 4 and 5 are outside the duty to bargain because
 they would substantively limit management's authority.  Proposal 4, by
 eliminating as grounds for discipline employee errors in implementing
 the RPET program, directly interferes with management's right to
 discipline under section 7106(a)(2)(A).  See American Federation of
 Government Employees, Local 1822, AFL-CIO and Veterans Administration
 Medical Center, Waco, Texas, 9 FLRA 709 (1982).  Proposal 5, by
 precluding management from evaluating employees on the basis of errors
 arising from the RPET program, effectively determines the content of the
 performance standards management will use in appraising those employees
 and directly interferes with management's right to direct employees and
 assign work under section 7106(a)(2)(A) and (B) of the Statute.  See
 Department of Health and Human Services, Social Security Administration
 v. FLRA, 791 F.2d 324 (4th Cir. 1986), reversing National Federation of
 Federal Employees, Council of Consolidated SSA Locals and Department of
 Health and Human Services, Social Security Administration, 17 FLRA 657
 (1985) (Proposal 1).  Finally, because Proposals 3, 4 and 5 constitute
 substantive limitations on management's rights, they are not procedures
 under section 7106(b)(2).  Moreover, because they would totally abrogate
 management's rights, they are not "appropriate arrangements" under
 section 7106(b)(3) of the Statute.  See American Federation of
 Government Employees, Local 1760, AFL-CIO and Department of Health and
 Human Services, Social Security Administration, 23 FLRA No. 21 (1986)
 (Union Proposals 2-6).
 
                              VI.  Conclusion
 
    Accordingly, we find that the Agency violated section 7116 (a)(1) and
 (5) of the Statute when it failed to bargain with the Union on a
 negotiable proposal concerning the impact and implementation of the
 RPET.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, it is hereby ordered that the United
 States Customs Service, Washington, D.C. and the United States Customs
 Service, Pacific Region, shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally instituting the Radio Preliminary Entry Test in the
 Pacific Region, without first affording the National Treasury Employees
 Union, the employees' exclusive bargaining representative, an
 opportunity to negotiate with respect to the procedures to be observed
 in implementing such program and appropriate arrangements for employees
 adversely affected thereby.
 
    (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) Upon request, bargain with the National Treasury Employees Union,
 the employees' exclusive bargaining representative, with respect to
 procedures and appropriate arrangements for employees adversely affected
 by the implementation of the Radio Preliminary Entry Test Program.
 
    (b) Post at the Pacific Region facilities, wherever bargaining unit
 employees are located, 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 a Regional Commissioner and shall be
 posted and maintained by him/her for 60 consecutive days thereafter, in
 conspicuous places where Notices to employees are customarily posted.
 Reasonable steps shall be taken to ensure that said Notices are not
 altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423,30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VIII, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply therewith.
 
    Issued, Washington, D.C., January 20, 1987.
 
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
           Dissenting Opinion of Chairman Calhoun -- Proposal 2
 
    I agree with the analysis and conclusions discussed above in sections
 V.A. and V.B.  As to the negotiability of the proposals, discussed in
 section V.C., I concur in the determination that Proposals 3, 4 and 5
 are outside the duty to bargain.  I respectfully disagree, however, with
 my colleagues' analysis of Union Proposal 2 and find that in certain
 circumstances the provision directly interferes with management's rights
 under section 7106(a) of the Statute.
 
    Proposal 2 provides for a delay in the implementation of the RPET
 program for a period of up to six months.  The proposal acts as an
 absolute bar to implementation until the Union completes its study, even
 where the Agency determines that implementation before that time is
 necessary.  For example, if the Agency decided that its mission
 accomplishment required immediate implementation of the RPET program, it
 is my view that the provision would prevent that necessary action and
 thus directly interfere with a substantive right reserved by section
 7106(a)(1) to agency discretion.  It is by definition not a negotiable
 procedure under section 7106(b)(2).  As I stated in my opinion in
 National Treasury Employees Union and Department of the Treasury, 24
 FLRA No. 54 (1986), the Agency's right to implement a new program to
 accomplish its mission in the most efficient and effective manner
 necessarily includes the right to determine when to implement the new
 program.  See National Treasury Employees Union v. FLRA, 691 F.2d 553,
 563 (D.C. Cir. 1982).  Moreover, because the proposal substantially
 limits and abrogates management's rights, it is not a negotiable
 procedure under section 7106(b)(2) or an appropriate arrangement under
 section 7106(b)(3) of the Statute.
 
    Issued, Washington, D.C., January 20, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
 
 
 
 
 
 
  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 unilaterally change conditions of employment by
 instituting the Radio Preliminary Entry Test Program in the Pacific
 Region, without first affording the National Treasury Employees Union,
 the employees' exclusive bargaining representative, an opportunity to
 negotiate with respect to the procedures to be observed in implementing
 such program and appropriate arrangements for employees adversely
 affected thereby.
 
    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
 Statute.
 
    WE WILL, upon request, bargain with the National Treasury Employees
 Union, the employees' exclusive bargaining representative, with respect
 to procedures and appropriate arrangements for employees adversely
 affected by the implementation of the Radio Preliminary Entry Test
 Program.
                                       (Activity)
 
    Dated:  . . .  By:  Regional Commissioner
 
    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 VIII, Federal Labor Relations Authority, whose address
 is:  350 South Figueroa Street, 10th Floor, Los Angeles, California
 90071, and whose telephone number is:  (213) 894-3805.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 8-CA-40453
 
    UNITED STATES CUSTOMS SERVICE
    WASHINGTON, D.C. and UNITED STATES
    CUSTOMS SERVICE, PACIFIC REGION
         Respondents
 
                                    and
 
    NATIONAL TREASURY EMPLOYEES UNION
         Charging Party
 
    Alfred A. Suarez, Esquire
    For the Respondent
 
    John R. Pannozzo, Esquire
    Gerald Cole, Esquire
    For the General Counsel
 
    Carol Perkins
    For the Charging Party
 
    Before:  WILLIAM NAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    A hearing in the above-entitled case was held before the undersigned
 on April 19, 1985 at Los Angeles, California.  The Complaint and Notice
 of Hearing was issued on January 31, 1985 by the Regional Director for
 the Federal Labor Relations Authority, Los Angeles, California.
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. 7171, et seq. (herein called the Statute).  It is
 based on a First Amended Charge (filed on January 29, 1985 by National
 Treasury Employees Union (hereby called the Union) against United States
 Customs Service, Washington, D.C. and United States Customs Service,
 Pacific Region (herein called Respondents).
 
    The Complaint alleged, in substance, that on or about July 1, 1984
 Respondents unilaterally changed working conditions by instituting a
 radio preliminary entry test program for vessels in the Pacific Region
 and failed to bargain with the Union re the impact and implementation
 thereof -- all in violation of Section 7116(a)(1) and (5) of the
 Statute.
 
    Respondents' Answer, dated February 21, 1985, admits the institution
 of a radio preliminary entry test program on the alleged date, but
 denies the commission of any unfair labor practices.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed which have been
 duly considered.  /1/
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein the Union has been, and still is,
 the exclusive representative in a national consolidated unit of all
 non-professional employees assigned to the Headquarters Office and
 Regions I through VII of the U.S. Customs Service, excluding all
 professional employees and other specified classifications.
 
    2.  Respondents' Pacific Region, /2/ which is involved in this
 proceeding, is composed of the ports in Los Angeles and San
 Francision/Oakland, California, in Portland, Oregon, in Seattle,
 Washington, and in Hawaii.
 
    3.  About 100 Customs Inspectors are attached to the Los Angeles
 District and about 150 Customs Inspectors are employed at the San
 Francisco port.
 
    4.  At all times material herein Respondent U.S. Customs Service and
 the Union have been, and still are, parties to a collective bargaining
 agreement covering the employees in the aforesaid nationwide unit,
 inclusive of the employees in Respondent Pacific Region.
 
    5.  Regulations of the United States Customs Service provide for
 vessels, foreign or domestic, to gain preliminary entry upon arriving at
 a port in order to begin loading or unloading cargo and/or passengers.
 Both time and money are saved by the use of this procedure.  If
 preliminary is not requested, the vessel must wait 24-48 hours after its
 arrival for formal entry in order to commence said operations or other
 transactions.
 
    6.  Prior to July 1, 1984 under the preliminary entry procedure a
 Customs Inspector would board the vessel when it arrived at a port.
 After boarding the vessel the Inspector reviewed the documentation
 required for this entry.  There are two complete manifests on board each
 vessel, and a manifest is needed for each foreign loading port.  About
 40% of vessel entries were submitted by the Customhouse broker at the
 pier.  The documents to be reviewed by the Customs Inspector include the
 following:
 
          (a) Master's Oath, listing the name of the vessel, where built,
       vessel owner and the operator.
 
          (b) General Declaration
 
          (c) Ship's Store's List, showing provisions on board, as food,
       alcoholic beverages, tobacco.
 
          (d) Crew's Effects, listing articles belonging to crew members
       who wish to land any of same.
 
          (e) Crew's List, stating names, dates, and passport numbers of
       individuals on baord.
 
    The Customs Manifest, which is part of the documentation, lists the
 name of the vessel, ports of loading and discharge, names of the shipper
 and consignee, bills of lading.  /3/ container numbers, and a
 description of merchandise.
 
    7.  One of the duties of the Customs Inspector is to "outturn the
 manifest".  This requires him to check the manifest with the bills of
 lading, and he must request that delivery orders on bills of lading left
 open be sent to Customs Office for delivery to a government warehouse.
 While on board the vessel the Inspector will check the load line and
 complete its certificate, check the water pollution certification and
 the ship's register.  He will seal up bonded stores -- liquor and
 tobacco items -- and observe individuals so as to make judgments
 regarding them.  The Inspector may suspect crew members come from
 narcotic source countries and then have them checked out as possible
 drug offenders.  He may check the cargo, take tank metages
 (measurements) of fuel, make changes required to the cargo manifest as
 on the bill of lading or re the port.  The Customs Inspector is present
 during the unloading of the merchandise.  Then he returns to the office
 on the pier with the manifest and commences the releasing of the
 merchandise.
 
    8.  By letter dated May 9, 1984 Steve F. Miller, Chief of
 Labor-Management and Employee Relations for the Pacific Region notified
 Carol Perkins, Assistant General Counsel of the Union that a Radio
 Preliminary Entry Test (RPET) Program for vessels would be implemented
 on May 30, 1984.  /4/ The new program involved a change in the procedure
 for granting preliminary entry to a vessel arriving at a port.  Under
 the changed method of entry the vessel agents or Customhouse Brokers may
 request, at least 24 hours before arrival, radio preliminary entry of a
 vessel by presenting a form to the appropriate Customs Marine Office.
 The Pacific Region, under the Plan, would conduct a one-year test
 allowing masters of vessels meeting certain conditions to request and
 receive preliminary entry by means of modern radio-telecommunications
 equipment and/or other electronic transmission of manifest data.
 
    9.  Under the changed procedure for preliminary entry of a vessel the
 Customs Inspector no longer boards the vessel.  Upon approval of the
 application for radio preliminary entry a signed RPET permit will be
 returned to the vessel agent or Customhouse Broker.  Formal entry of the
 vessel is required within 48/24 hours of the actual arrival time of the
 vessel.
 
    10.  In a letter dated May 17, 1984 Union representative Perkins
 advised Miller that the Union wished to negotiate the substance, impact
 and implementation of the new program -- RPET. Further, the Union
 requested all documentary information re RPET, and it proposed that the
 directive not be implemented prior to completing negotiations.
 
    11.  Management replied to Perkins in a letter dated June 4, 1984 in
 which it was stated (a) the proposal by the Union not to implement the
 Plan is not negotiable, (b) since no other proposals were submitted by
 the Union, RPET would be implemented on July 1, 1984, (c) no documentary
 information was on hand since no special studies were conducted re RPET.
 
    12.  Perkins replied to Miller by letter dated June 8, 1984 wherein
 she repeated a request for informational briefing and disputed
 management's claim of non-negotiability.  The letter also proposed that
 (a) the new program not be implemented pending a six month study by the
 Union to evaluate the impact on unit employees of RPET, (b)
 implementation be withheld pending clarification of the goals for RPET
 and guidelines for an analysis of the test's results, (c) unit employees
 not a disciplined for errors resultant from RPET, (d) unit employees not
 be evaluated on basis of errors arising from RPET.
 
    13.  Under date of June 13, 1984 Miller notified the Union that it
 deemed the latter's proposals to be outside the agency's duty to
 negotiate;  that the proposals either had no valid impact on employees,
 or would interfere with the agency's right to discipline employees.
 Accordingly, Management intended to begin RPET on July 1, 1984.
 
    14.  On June 29, 1984 the Union filed a negotiability appeal with the
 Federal Labor Relations Authority based on 'respondents' refusal to
 negotiate and its declaration that the impact and implementation
 proposals by the Union were non-negotiable.  /5/ The Authority issued an
 Order Dismissing Petition For Review on August 29, 1984 based on its
 determination that the Union's petition for review was untimely filed.
 Finding no extraordinary circumstances warranting reconsidering its
 order of August 19, the Authority denied a Motion For Reconsideration on
 October 24, 1984.
 
    15.  RPET was instituted on July 1, 1984.  Between March 1, 1985 and
 April 19, 1985, between 75-100 ships have used this procedure at the San
 Francisco port.  At said port about 50% -- 75% of vessels utilizing
 preliminary entry are doing so through RPET, and one-half of them during
 non-regular hours, i.e., before 8:00 a.m. or after 5:00 p.m.  Record
 facts show that in the Los Angeles District ships have made use of RPET
 about 240 times.
 
    16.  Changes involving the work performance of the Customs Inspector,
 arising from the implementation of RPET, include the following:
 
    (a) Prior to RPET the Customs Inspector "outturned" the manifest in
 one or two hours since he had posted all entries or rung up the
 manifest.  He accomplished this task immediately or the next business
 day.  Under RPET the Inspector does not have the manifest at the time of
 unloading, and thus it takes 4-6 hours to "outturn" the manifest when he
 receives it.
 
    (b) Prior to RPET the Customs Inspector was able to observe the crew
 and cargo upon boarding the vessel.  Under RPET he had no control over
 either crew or cargo since he was not on the ship when it discharged
 either.
 
    (c) Prior to RPET the Customs Inspector was in a position, by reason
 of his presence on board a vessel, to make seizures.  In so doing he
 could prevent people from removing alcoholic beverage or he might seize
 any article that was removed from the vessel.
 
    17.  The overtime pay granted Customs Inspectors is paid by the
 carrier of the merchandise.  It is based on periods, i.e., if an
 Inspectors works 5 p.m. to 6 p.m. he gets one period;  5 p.m. to 8 p.m.
 he receives two periods;  5 p.m. to 10 p.m. he gets three periods;  and
 5 p.m. to 12 a.m. he gets four periods.  A period constitutes one-half
 day's pay.  In some instances the Customs Inspector might work around
 the clock.  Record facts show that, as a result of the new entry
 procedure implemented in July, 1984, the Customs Inspectors have lost
 overtime pay.  /6/ Record facts show that about 10% of overtime pay has
 been lost by the Inspectors in the Los Angeles District.  Further, that
 the Customs Inspectors in the San Francisco port suffered a loss of 10%
 -- 15% overtime pay due to RPET program begin implemented thereat.
 
    18.  A new Employee Performance Appraisal System (EPAS) was
 instituted by Respondents for Customs Inspectors which became effective
 on August 1, 1984 and was to continue to July 31, 1985.  (G.C. Exh. 8).
 It provided for five overall Summary Rating:  (a) Outstanding, (b)
 Highly Successful, (c) Successful (d) Marginal and (e) Unacceptable.
 Included in the EPAS is the "Annual Performance Plan and Appraisal,"
 which lists various Performance Elements and Subelements as well as
 Performance Standards of "Acceptable" and "minimal." Appendices A, B and
 C of EPAS sets forth an "Enforcement Activity Measurement System" which
 designates the number of enforcement (unit) points to be granted an
 Inspector for types and amounts of seizures or detentions made by him in
 connection with his duties.
 
    19.  Performance elements and subelements set forth in the EPAS call
 for the Customs Inspector, in respect to cargo, to board vessels,
 complete documents and grant preliminary entry;  to review and process
 in-bond, formal and informal entries and maintain custody of all
 merchandise until regulatory requirements have been met;  to "outturn"
 manifest by auditing carrier records.  In respect to baggage, the
 performance requirements call for the Inspector to question passengers
 and crew, examine baggage, assessand collect duties and taxes.  In
 respect to enforcement, the Customs Inspector is expected to perform
 searches and arrests, to make seizures and assess penalties.
 
    20.  In connection with his performance the GS 9/11 Customs Inspector
 must earn 25-100 credit points per rating period to be deemed
 "Acceptable", and 10-25 credit points to be judged "Minimal".  The GS
 5/7 Customs Inspector must earn 20-95 credit points per rating period to
 be deemed "Acceptable" and 4-10 credit points for a "Minimal" rating.
 
    21.  The record reflects that as a result of not boarding the vessel
 under RPET, contrary to the former procedure, the Customs Inspectors
 cannot search a crew or visitors who may be bringing in articles
 illegally upon the ship's arrival, and then make necessary arrests.
 Further, the Inspectors cannot make seizures of contraband or undeclared
 currency and write up necessary penalties.  Since he cannot board a
 vessel, the Inspector no longer is in a position to make observations or
 judgments relating to the documentation, the crew, or such vessel
 problems causing pollution as an oil spill, so as to aid other Customs
 officials in enforcement.  /7/
 
                                Conclusions
 
    The ultimate issue herein is whether Respondents unilaterally
 implemented the RPET program on July 1, 1984 and unlawfully refused to
 negotiate the impact and implementation thereof with the Union.
 
    In respect thereto Respondents raise the following principal
 contentions:  (1) since the Union filed a negotiability appeal pursuant
 to Section 2424 of the Authority's Rules and Regulations, it is barred
 under 7216(d) of the Statute from raising the issue as an unfair labor
 practice;  (2) the collective bargaining agreements cover the impacts
 which General Counsel asserts to result from the new program, and hence
 bargaining has taken place as required;  (3) assuming arguendo the
 bargaining agreement is not controlling and that bargaining has not
 occurred, no obligation existed to negotiate since:  (a) the Union's
 proposals were non-negotiable, and (b) any adverse effect upon employees
 stemming from the implementation of RPET was de minimis.  /8/
 
    (1) It is contended by Respondents that, since the Union filed a
 negotiability appeal after management determined the proposals of the
 Union were non-negotiable, the issue of negotiability has been settled.
 Adverting to Section 7116(d) of the Statute, Respondents claim that this
 complaint must be dismissed in view of the statutory language which
 provides that "Issues which can properly be raised under an appeals
 procedure may not be raised an unfair labor practices prohibited under
 this section. . ." (underscoring supplied).  Further, it is argued that
 the particular appeals procedure, under which the negotiability issue
 may properly be raised, is set forth in Section 7117(c) which states:
 
          "(c)(1) Except in any case to which subsection (b) of this
       section applies, if any agency involved in collective bargaining
       with an exclusive representative alleges that the duty to bargain
       in good faith does not extend to any matter, the exclusive
       representative may appeal the allegation to the Authority in
       accordance with the provisions of this subsection." (underscoring
       supplied).
 
    The undersigned is not persuaded that Section 7116(d) of the Statute
 operates to bar the present proceeding.  That statutory provision does,
 it is true, foreclose raising issues in an unfair labor practice
 proceeding which are properly raised in an appeals procedure.  But,
 apart from the question as to whether negotiability appeals before the
 Authority are in fact "appeals procedures" /9/ under 7116(d), the issues
 raised must be the same in the negotiability appeals procedure and the
 unfair labor practice proceeding in order to bar raising the issue as an
 unfair labor practice.  The Authority has addressed this point in
 several cases where a grievance was filed against the agency and
 thereafter an unfair labor practice complaint was issued against said
 agency.  In Defense Logistics Agency, Defense Depot Tracy, Tracy,
 California, 16 FLRA No. 142 the complaint alleged a unilateral
 elimination of Environmental Pay Differential (EPD).  Prior thereto, the
 unit employees filed a grievance seeking continuance of EPD.  It was
 held that 7116(d) did not operate as a bar since the issues raised in
 the grievance proceeding as not the same as that raised in the unfair
 labor practice complaint.  To the same effect, which involved a
 reorganization, see United States Air Force, Air Force Logistics
 Command, Aerospace Guidance and Metrology Center, Newark, Hio, 4 FLRA
 No. 70.
 
    In the instant case the issue raised by the unfair labor practice
 complaint concerned an alleged change in working conditions, i.e. the
 unilateral institution of a Radio Preliminary Entry Test program in
 place of the former vessel entry practice -- all without bargaining with
 the Union re its impact and implementation.  Assuming arguendo, that the
 negotiability appeal filed by the Union constituted an "appeal
 procedure" with the meaning of 7116(d), the issue raised therein would
 have involved the negotiability of the Union's proposals number 2 and 3.
  Thus, the issues in these two proceedings are different and accordingly
 I reject the contention that the unfair labor practice change herein was
 barred under Section 7116(d) of the Statute.
 
    (2) The various agreements alluded to by Respondents do contain, it
 is true, provisions with respect to overtime.  The National Agreement
 /10/ sets forth, in Article 22, Section 1-29, clauses dealing with,
 inter alia, notification of overtime, method of assignment, equalizing
 overtime earnings, and uncontrolled overtime.  The supplemental
 agreements covering the Los Ageles Region /11/ and the San Francisco
 Region /12/ deal, for the most part, with "equalization of overtime" and
 the keeping of records re overtime.  Respondents argue that these
 provisions fully cover all aspects of overtime over which bargaining
 could take place.  It is urged that there has been no change in
 procedures, and that the assignment of overtime is a management right.
 
    While the agreements do refer to the procedures for overtime
 assignments, as well as other features thereof, the Union does not seek
 to challenge these provisions.  Neither does it question management's
 right to make assignments.  Rather does the Union seek to bargain re the
 impact of a change in working conditions, i.e. the institution of RPET.
 The effect of the new entry program upon Customs Inspectors' overtime
 earnings, concerning which, inter alia, the Union seeks to bargain, is
 not covered by any of the agreements.  There is no provision which deals
 with, and provides for, arrangements in the event overtime is lost due
 to changes in operations.  Had such appeared therein, it could then be
 concluded that the Union waived its right to bargain over the loss of
 overtime due to a changed condition.  In my opinion there is no language
 in the agreements supporting a conclusion that this matter was
 negotiated therein.
 
    With respect to the Employee Performance Appraisal System (EPAS)
 which became effective on July 1, 1984, Respondents maintain that any
 effect of such plan is also covered under the National Agreement.
 Specifically, reference is made to Article XVI, Section 5 thereof.
 Those clauses pertain to the procedures for changing performance plans,
 including notification to employees and a meeting with the latter as
 well as the union steward to discuss the performance elements.  Again,
 the Union herein does not question the procedures for modifying or
 changing the performance standards, nor the right of management to do
 so.  It does not, as the record reflects, challenge EPAS but is
 concerned with the fact that the change in the entry system for vessels
 (RPET) redounds to the detriment of Inspectors under EPAS.  None of the
 provisions in the National Agreement pertaining to performance
 appraisals is germane to this central issue:  whether the changed entry
 system for vessels affected the working conditions of Customs
 Inspectors.
 
    Accordingly, I conclude that the issue at hand has not been bargained
 heretofore by the parties and is not controlled by the National
 Agreement or the Supplemental Agreements covering Los Angeles and San
 Francisco.
 
    (3)(a) With respect to the insistence by Respondents that the Union's
 proposals concerning RPET were non-negotiable and thus relieved
 management of a duty to bargain, I am persuaded that this contention
 lacks merit.  In respect to Proposal No. 2, /13/ the thrust thereof is
 that implementation of the radio entry program be withheld pending a
 study within 6 months by the Union on its impact upon unit employees.
 This proposal, insofar as it concerns management's procedures in
 establishing RPET, does not prevent the agency from acting to exercise
 its authority under Section 7106 of the Statute.  While the reason for
 deferring implementation may not meet with management's approval, the
 basic request of Respondents is for a delay thereof up to 6 months.  As
 such, it does not interfere with management's rights under the Statute.
 Immigration and Naturalization Service, Eastern Regional Office
 (Burlington, Vermont), 18 FLRA No. 103;  National Federation of Federal
 Employees, Council of Consolidated SSA Locals and Department of Health
 and Human Services, Social Security Administration, 17 FLRA No. 95.
 Moreover, it seems apparent to the undersigned that such proposal is
 concerned with the impact that the RPET program will have upon the
 Inspectors in view of the stated reason therefor.  I conclude that
 Proposal No. 2 is a negotiable matter. /14/
 
    In Proposal No. 3 /15/ the Union requests that implementation of RPET
 be withheld pending (a) written clarification of the program's goals (if
 any) and (b) the establishment of guidelines re an analysis of test
 results.  In respect to the first portion of the proposal, Respondents
 contend it does not bear on any procedures or impact;  that it is merely
 a request for information and management's obligation to furnish data is
 governed by 7114(b) (4) of the Statute.  In respect to the second
 portion of the proposal, it is argued that requiring guidelines for an
 analysis of test results would affect the agency's discretion in
 determining the mission of the agency;  that it imposes a limitation on
 management's right to assign work and determine the personnel who would
 conduct operations.
 
    Neither argument of Respondents convinces me that this proposal is
 non-negotiable.  Suggested clarification of goals in connection with
 RPET is not equatable, in my opinion, with request for information which
 a union seeks in order to engage in collective bargaining.  It is
 understandable that particular goals, if established by management, may
 infringe on the effects of the new radio entry program.  Respondents are
 not called upon to set up such goals and, unless in existence, they may
 not be required to provide them.  The proposal to advise the Union of
 established goals does not interfere with management's rights to effect
 RPET or direct its personnel in the operation thereof.
 
    In respect to the establishment of guidelines for an analysis of the
 test results, Respondents assert this particular proposal lacks
 specificity.  The case of National Treasury Employees Union and NTEU
 Chapter 66 and Department of the Treasury, Internal Revenue Service,
 Kansas City Service Center, Missouri, 6 FLRA No. 16 is cited in support
 thereof.  In that case the union proposed that "Guidelines be
 established and distributed to employees advising them what spot
 checking will consist of." (Underscoring supplied).  This and other
 disputed proposals arose from discussions re a reorganization and a
 request by the union to negotiate as to duties of a working leader
 position in the Compliance Division.  The Authority concluded that while
 the proposal appears to relate to the "working leader" position,
 insufficient explanation existed as to the meaning of the language as
 well as the purpose of all the proposals.  In the NTEU case, supra, the
 Authority referred to its decision in Association of Civilian
 Technicians, Alabama ACT and State of Alabama National Guard, 2 FLRA No.
 39 where a failure by the union to present a proposal, "sufficiently
 specific and delimited in form", precludes a determination as to
 negotiability and warrant dismissal of a petition for review.  Note is
 taken, however, that in the Alabama case the union sought a
 determination as to whether impact and implementation of the agency's
 conversion program was within the duty to bargain, but no specific
 proposals were even submitted.  The Authority concluded that a definite
 proposal must be sent to management.
 
    The case at bar, I am persuaded, is distinguishable from those in
 which either no proposal was submitted or the proposal was uncertain and
 indefinite.  The request for clarification is clearly referrable to RPET
 and is not shrouded in ambiguity.  It is specific in nature.  While
 Respondents aver that the establishment of guidelines would impose a
 substantive limitation upon management's authority to assign work or
 determine the mission of the agency, I do not agree.  Guidelines, as
 proposed, would relate to eventual results of the test.  An analysis
 thereof could well bear on the impact of RPET as it affects employees,
 and no such considerations would prevent Respondents from carrying on
 its mission or assigning work to employees.  See National Treasury
 Employees Union and U.S. Customs Service, Region VIII, San Francisco,
 California, 2 FLRA No. 30.
 
    In sum, I am satisfied that Proposal No. 3 is a negotiable matter
 which does not preclude management from acting in regard to its ratio
 entry program.
 
    Two other proposals by the Union were rejected by Respondents as
 being non-negotiable and remain for consideration.  Proposal No. 4 /16/
 was deemed by Respondents to interfere with the agency's right to
 discipline employees.  Proposal No. 5 /17/ was deemed to interfere with
 the agency's right to evaluate or discipline employees.  This was so
 stated in Miller's letter of June 13, 1984 to the Union.
 
    The net effect of these two proposals calls for management abstaining
 from disciplining or evaluating employees during this RPET program based
 on error committed under the new procedures.  While management argues to
 the contrary, the fact that these proposals were not the subjects of
 negotiability appeals does not, in my opinion, warrant the conclusion
 that the Union conceded their non-negotiability.  No such concession or
 statement in that regard appears in the record.  Note is taken that in
 National Federation of Federal Employees, Council of Consolidated SSA
 Locals and Department of Health and Human Services, Social Security
 Administration, 17 FLRA No. 95 the Authority dealt with a union proposal
 somewhat similar to Proposal No. 4 and 5 herein.  In the cited case the
 union proposed that unit employees not be charged with payment or
 documentation errors on issues relating to certain changes made by
 management.  The Authority concluded the said proposal provides what is
 tantamount to a training period, during which employees are not charged
 with errors attributable to the new procedures.  It followed the
 reasoning set forth in American Federation of State, County and
 Municipal Employees, Local 2910, AFL-CIO and Library of Congress, 15
 FLRA No. 112 and determined there was no attempt to prevent the
 assignment of work.  It was not contemplated that employees not perform
 the changed duties, but merely they not be evaluated during a trial
 period.
 
    In the case at bar I am persuaded that these particular proposals
 (Nos. 4 & 5) do not interfere with Respondents' right to assign work or
 expectation that the Inspectors perform the assigned work.  As in the
 cited cases, the proposals would seek to exclude the errors committed by
 these employees under the new procedure from being the basis for
 disciplinary action or evaluation.  As such, these proposals bear on the
 impact resulting from RPET, and I conclude they were negotiable matters
 in connection with the implementing of the change in vessel entry.
 
    (3)(b) Case law is well established reaffirming the principle that,
 in the event an agency exercises a management right under Section 7106,
 it must still negotiate any impact upon its unit employees which results
 from a change which was reasonably foreseeable.  U.S. Government
 Printing Office, 13 FLRA 203.  The Authority has also reiterated that no
 duty to bargain over a changed working condition exists where the effect
 of such change is de minimis in nature.  See Department of Health and
 Human Services, Social Security Administration, Chicago Region, 15 FLRA
 No. 174.  Adhering to this principle, the Authority in Department of
 Health and Human Services, Social Security Administration, Region V,
 Chicago, Illinois, 19 FLRA No. 101 mentioned five factors /18/ which it
 felt should be considered in determining whether the impact, or
 reasonably foreseeable impact, was de minimis.
 
    In the case at bar Respondents argue that the RPET program
 constituted only a change in procedure;  that any alteration of
 Inspectors' duties was not a material one.  It is insisted that the only
 specific change resulting from the radio entry plan involved eliminating
 a boarding of the vessel by the Inspectors;  that their duties were not
 changed in any significant manner by reason thereof.
 
    Record facts establish, in my opinion, that the impact of the change,
 i.e. the elimination of a procedure whereby Inspectors board a vessel
 upon its entry, is more than de minimis in nature.  When these
 individuals were called to board ships before 8:00 a.m. or after 5:00
 p.m. (the regular work hours), it was a condition of their employment
 that overtime was earned for work performed during those non-regular
 periods.  With the change in this procedure such overtime was lost to
 250 Customs Inspectors at the ports of Los Angeles and San Francisco.
 Factual testimony reflects that, as a result of their not boarding
 vessels which arrive at non-duty hours, these employees stood to lose
 10% - 25% of their overtime pay.  Respondents' argument that assignment
 of overtime is a management right is not at issue.  The fact remains
 that, during a fiscal year, 1/2 of the vessels which gained entry to
 these ports utilized RPET.  A substantial loss, or foreseeable loss, of
 overtime for 250 employees can scarcely be termed minimal in nature.
 Contrary to Respondents, I conclude that such deprivation of overtime is
 a material change in conditions of employment.
 
    Under the performance appraisal system (EPAS) adopted by Respondents
 on August 1, 1984, an Inspector would be appraised based on his
 performing certain elements and subelements.  The latter calls for
 Customs Inspectors to board a vessel and (a) insure that documents are
 in order, and maintain custody of merchandise until regulations are met,
 (b) questions passengers and crew regarding baggage as well as examine
 same, (c) perform searches and arrests as well as make seizures and
 assess penalties.  In performing these duties the Customs Inspector,
 pursuant to EPAS, earns credit points which determine the rating
 received by him. The summary rating system ranges from "outstanding" to
 "unacceptable".  The amount of credit points earned by these Inspectors
 is the measuring standard as to whether his performance is deemed
 "Acceptable" or "Minimal."
 
    It thus becomes self-evident that if these employees no longer board
 vessels upon entry they are scarcely in a position to comply with the
 performance expectations or standards set by management.  Respondents
 argue that, except for examining the manifests ashore instead of aboard
 the vessel, there has been no change, and it further challenges the fact
 that such duties aboard the vessel were actually performed prior to
 RPET.  The credible testimonies of the Senior Customs Inspector and two
 other Inspectors reveal that, prior to radio entry, searches and
 seizures were performed as needed when the Customs Inspectors boarded a
 vessel;  that cargo was examined as well as passengers;  that entries
 were made therewith by there employees for the assessment and collection
 of penalties in connection with contraband merchandise or the illegal
 presence of persons on ship.  The foregoing convinces me that the change
 effected by Respondents whereby Inspectors no longer board vessels had a
 foreseeable impact upon credits earned by them and thus affected their
 performance appraisals under the rating system of EPAS.
 
    Consideration has been given by the undersigned to the question as to
 whether the change caused by RPET was temporary, in which instance it
 justifies labeling the change as de minimis.  While the Authority in
 Department of Health and Human Services, Social Security Administration,
 Region V, supra, emphasized that the change therein was short-lived and
 of temporary duration, the case herein is readily distinguishable.  In
 the cited case claims representatives from SSA were detailed or assigned
 to State of Michigan, Department of Social Service (DDS) to help clear
 up a backlog of cases.  Such travel by the claims representatives was
 done one day a week, and only six trips were taken by any one
 representative.  Construing such a change as de minimis is
 understandable in view of its non-recurrence.  However, despite the fact
 that the RPET program was a test for one year, it was a continuing and
 daily condition of employment.  To deem a change as "temporary" based on
 its being operative for a year, so as to be called de minimis, would set
 the stage for an agency to escape bargaining on any change by merely
 designating it as a one year test program.  In the opinion of the
 undersigned logic compels the conclusion that where, as here, management
 effects a program requiring constant and continued conditions of
 employment -- albiet for a year as a trial -- the change is not properly
 characterized as temporary within the meaning of a term as used by the
 Authority in the cited case.
 
    On the basis of the foregoing, I conclude that the RPET program was
 instituted by Respondents without affording the Union an opportunity to
 bargain re its impact and implementation:  that the change wrought by
 discontinuing the practice and condition of employment whereby Customs
 Inspectors boarded the vessel upon entry, with the attendant duties
 heretofore described, constituted a change more than de minimis in
 nature;  and that, as a result thereof.  Respondents violated Section
 7116(a)(1) and (5) of the Statute.
 
    In view of the foregoing I recommend that the Authority issue the
 following:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Authority's Rules and Regulations
 and Section 7118 of the Statute, it is hereby ordered that the United
 States Customs Service, Washington, D.C. and United States Customs
 Service Pacific Region, shall:
 
          (a) Unilaterally instituting the Radio Preliminary Entry Test
       program in the Pacific Region, without first affording the
       National Treasury Employees Union, the employees' the exclusive
       bargaining representative, an opportunity to negotiate with
       respect to the procedures to be observed in implementing such
       program and appropriate arrangements for employees adversely
       affected thereby.
 
          (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) Upon request, bargain with the National Treasury Employees
       Union, the employees' exclusive bargaining representative, with
       respect to procedures and appropriate arrangements for employees
       adversely affected by the implementation of the Radio Preliminary
       Entry Test program.
 
          (b) Post at its Pacific Region facilities, wherever bargaining
       unit employees are located, 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 a Regional
       Commissioner, 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 said Notices are not altered, defaced, or covered
       by any other material.
 
          (c) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region 8, Federal Labor
       Relations Authority, in writing, within 30 days from the date of
       this Order, as to what steps have been taken to comply herewith.
 
                                       /s/ WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  December 30, 1985
    Washington, D.C.
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) On June 29, 1984 the Union filed a negotiability petition for
 review as to Proposals 2 and 3 with the Authority;  the petition was
 dismissed as untimely filed.  National Treasury Employees Union and
 Department of the Treasury, Customs Service, 15 FLRA 775 (1984).
 
    (1) Subsequent to the hearing, General Counsel filed with the
 undersigned a Motion to Correct Transcript.  No objections having been
 filed to the Motion, and it appearing that the proposed corrections are
 proper, the Motion is granted as requested.
 
    (2) Formerly designated as Region VII.
 
    (3) The average vessel coming into the port at Los Angeles have from
 700-1000 bills of lading.
 
    (4) Deputy Assistant Regional Commissioner Tag testified that RPET
 was developed due to declining resources and rapidly increasing workload
 in Los Angeles.  The Pacific Regional management consulted with the
 service headquarters in Washington beforehand.
 
    (5) It also set forth the meaning of two of its proposals;  those set
 forth, supra, under paragraphs 12(a) and (b) of the Findings of Fact
 herein.
 
    (6) This occurs since the Inspector, under RPET, does not board the
 vessel before 8 a.m. or after 5 p.m. as he did prior to the new entry
 procedure.
 
    (7) There are about 400 laws which the Customs Inspector is
 responsible for enforcing in connection with his inspections.
 
    (8) Respondents do not concede that RPET constituted any change in
 working conditions.  It insists that any change which occurred involved
 one of procedure which did not affect the job functions or
 responsibilities of Customs Inspectors.
 
    (9) No case has been brought to my attention which is dispositive of
 this questions.  In any event, in view of the ultimate determination re
 the applicability of 7116(d), I do not find it necessary to pass upon
 whether a negotiability appeal to the Authority constitutes an appeals
 procedure" under the Statute.
 
    (10) Respondents' Exhibit No. 5.
 
    (11) Respondents' Exhibit No. 6.
 
    (12) Respondents' Exhibit No. 7.
 
    (13) "That the implementation of the proposed temporary directive be
 withheld pending a study to be carried out, within six months, by NTEU
 to evaluate on the impact of the directive on bargaining unit
 employees."
 
    (14) Respondent also maintains this proposal is not specific and thus
 warrants its refusal to negotiate therein.  I disagree.  The language
 therein is neither vague nor subject to conjecture.  The proposal
 specifies that implementation be withheld and a maximum period is
 stated.
 
    (15) "That the implementation of the proposed directive be withheld
 pending clarification, in written forms of the perceived goals (if any)
 for the RPE program as well as establishment of guidelines for the
 eventual analysis of the test results."
 
    (16) "That bargaining unit employees shall not be subject to
 disciplinary action for errors resulting from the RPE test."
 
    (17) "That bargaining unit employee shall be evaluated on the basis
 of errors involving the case (sic) of the RPE test."
 
    (18) These involved the extent of the change, duration and frequency
 of the change, number of employees affected or foreseeably affected,
 size of the unit, and extent to which parties established procedures and
 arrangements re analogous changes in the past.
 
 
 
 
 
  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 unilaterally change conditions of employment by
 instituting the Radio Preliminary Entry Test program in the Pacific
 Region, without first affording the National Treasury Employees