38:0838(70)CA - - Treasury, Customs Service, Region IV, Miami District, Miami, FL and NTEU - - 1990 FLRAdec CA - - v38 p838

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[ v38 p838 ]
38:0838(70)CA
The decision of the Authority follows:


38 FLRA No. 70

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

REGION IV

MIAMI DISTRICT

MIAMI, FLORIDA

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party)

4-CA-70766

DECISION

December 7, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge issued in the above-entitled proceeding. The General Counsel filed exceptions to the Judge's decision.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it declared nonnegotiable a proposal which the General Counsel contends is not materially different from proposals found to be negotiable by the Authority in National Treasury Employees Union and U.S. Customs Service, Northeast Region, 25 FLRA 731 (1987) (Customs). The complaint further alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing changes in the rotation scheduling system for inspectors without bargaining in good faith with the Union.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. After consideration of the Judge's Decision, the exceptions, and the entire record, we find, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute.

II. Background

Inspectors in the Miami District assigned to the Port of Miami have rotated among three general kinds of assignments "[s]ince at least 1983." Judge's Decision at 2. These assignments involve passenger baggage checking at Miami International Airport, cargo checking at the Airport, and working at one of the Port's Seaport facilities. Although the duration of these rotations had at one time been as short as 1 week, the inspectors were rotated "essentially every six months beginning in 1986." Id. All the inspectors involved in the rotation system "have the same Position Description and are capable of performing any aspect of the job." Id.

In May 1987, the Respondent notified the Union of a change in the rotation system. Under management's proposal, the minimum rotation to either Airport Cargo or the Seaport would be 6 months, and the maximum time on any rotation at Airport baggage would be 6 months. The Union "was primarily concerned with the duration of rotation at Airport [baggage] and sought to limit rotation at that location to no more than three months." Id. at 3. After several negotiating sessions, the Respondent notified the Union that the Union's proposal was nonnegotiable and that management would initiate its new system on August 2, 1987.

The Respondent implemented its new rotation system on August 2, 1987. The Union filed an unfair labor practice charge, alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by declaring the Union's proposal to be nonnegotiable despite the Authority's decision in Customs finding negotiable proposals which concerned the duration of work assignments. The Union also alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute when it unilaterally implemented the new rotation system on August 2, 1987.

III. The Judge's Decision

The Judge noted that in Customs, a prior case involving the same parties and employees in a different region of the Customs Service, the Authority had found negotiable a number of proposals which addressed, among other things, the duration of Customs inspectors' rotational assignments. The Judge stated that he was "constrained to follow" the Authority's holding in Customs that "a proposal that employees rotate in an assignment among various established work locations for a particular duration . . . does not interfere[] with management's right to assign employees or work . . . unless a 'linkage' exist[ed] between the length of a rotational assignment and the particular duties performed." Id. at 12.

The Judge concluded that the Respondent had "established the existence of a significant linkage between the length of a rotational assignment between locations and the particular duties performed by Inspectors at the Port of Miami." Id. The Judge found, in particular, that the record established that "significant changes can be expected to occur regularly in the strategy, technology and techniques of inspection employed by Inspectors, depending upon what is being inspected and where the activity occurs[.]" Id. The Judge noted that "the effectiveness and efficiency of [the Agency's] operations[]" would be promoted by a longer rotation which, according to the Judge, would "assure that employees are properly trained on a continuing basis in the various functions, procedures and developments in their assignments." Id.

Based on his conclusion that the Respondent had established a "significant linkage" between the duration of a rotational assignment and the duties performed by the inspectors, the Judge concluded that the Union's proposal directly interfered with management's right to assign work under section 7106(a)(2) of the Statute. Therefore, the Judge found that the Respondent was not obligated to negotiate with the Union over the proposal. The Judge also concluded that, absent other negotiable proposals by the Union, the Respondent acted properly in implementing the changes in the rotation system on August 2, 1987.

IV. The General Counsel's Exceptions

The General Counsel asserts that the Judge erred in basing his decision on a finding that a linkage exists between the length of rotation and the particular duties performed. The General Counsel claims that, in Customs, the Authority discussed "'linkage,' . . . only in the context of distinguishing" Customs from an earlier decision in American Federation of Government Employees, AFL-CIO, Local 695 and Department of the Treasury, U.S. Mint, Denver, Colorado, 3 FLRA 43 (1980) (U.S. Mint). Exceptions at 3. The General Counsel contends "that the facts of the instant case coincide precisely with those in [Customs], which, of course, involve the same parties, duties and types of work locations." Id. at 4. The General Counsel concludes that a "finding that 'linkage' exists in the instant case is essentially a finding that the instant case is more like [U.S. Mint] than [Customs]--a clearly incorrect conclusion". Id.

The General Counsel further asserts that even if "the concept of 'linkage' . . . were applicable to this case, the record evidence in this case does not establish such linkage." Id. The General Counsel contends that the factors used by management to justify a longer rotation, such as the need for training and learning the computerized systems, are not unique to the Miami District and that such factors are not related to the length of an employee's rotation period.

The General Counsel contends that even if the Judge's conclusions regarding the length of rotations are correct, "these conclusions involving a relationship between time spent and knowledge and proficiency do not show a relationship between time spent and particular duties." Id. at 5 (emphasis in original). The General Counsel concludes that an inspector's "duties remain the same, regardless of who is performing them or how long[,]" and that if an inspector's duties change because of such developments as computerization or new profiles, "they change whether or not a rotation system is employed." Id. (emphasis in original).

Finally, the General Counsel asserts that the "Respondent itself made the decision . . . that it would rotate employees--a decision which is not the subject" of this case. Id. (emphasis in original). The General Counsel concludes that "[w]hat is negotiable, and the subject of this case, is the length of rotation, once management makes the determination to rotate." Id. at 6 (emphasis in original).

V. Analysis and Conclusions

In U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA No. 68 (1990) (Boston Customs), we addressed many of the issues raised in this case. In particular, one of the proposals concerned the duration of inspectors' rotational assignments.

We stated in Boston Customs that a proposal involving the right to assign work "is negotiable unless it directly interferes with the exercise of the management right." Slip op. at 17 (citations omitted). We noted that the right to assign work includes not only the actual assignment, but "the right to determine the qualifications necessary to perform the work to be assigned and, as well, to determine whether individual employees possess the necessary qualifications." Id. at 18 (citations omitted). Finally, we stated that the right to assign work "encompasses the right to determine what work will be assigned, the position or positions to which the work will be assigned, and when the work will be performed." Id. (citations omitted).

With respect to the proposals involved in Boston Customs, we found that it was "apparent that all employees included in the rotation schedule are equally qualified to perform the duties of all the positions in the schedule." Id. at 18. Therefore, we concluded that:

Put simply, the Union's proposals affect only the length of time that equally qualified employees will spend doing work that already has been assigned by the Respondent to those employees. All work that has been assigned by the Respondent would be performed at all times the Respondent assigned it. Moreover, the use of a rotation schedule itself is not in dispute. The Respondent remains free to decide to accomplish its work in another manner. We are unable to conclude, in these circumstances, that the Union's proposals would directly interfere with the Respondent's right to assign work.

Id. at 19.

Based on the foregoing, we reject the Respondent's argument to the Judge (*) that the Union's proposal herein is outside the duty to bargain because it directly interferes with the Respondent's right to determine when work will be performed. As in Boston Customs, the inspectors in this case are equally qualified to perform any assignment within the rotational schedule. The Union's proposal addresses only how long an inspector would remain in any particular rotational assignment. The work assigned by the Respondent would not be affected by the proposal, nor would the existence of the rotation system established by the Respondent. We conclude, therefore, that the proposal would not directly interfere with the Respondent's right to assign work.

We reject also the Judge's conclusion that the Union's proposal was nonnegotiable because the Respondent had "established the existence of a significant linkage between the length of a rotational assignment between locations and the particular duties performed by" the Respondent's inspectors. Judge's Decision at 12. The portion of Customs discussing "linkage," referred to by the Judge, provides:

There is nothing in the express language of these proposals or otherwise in the record to support a claim that these proposals prevent the Agency from continuing to analyze individual characteristics in requiring employees to rotate in the port of Boston. Further, unlike the circumstances involving Proposal 1 in [U.S. Mint], the record in this case does not establish any linkage between the length of a rotational assignment and the particular duties performed.

Customs at 734.

We agree with the General Counsel that the reference in Customs to "linkage," when read in context, is aimed primarily at distinguishing the Authority's finding in Customs from its finding in U.S. Mint. Moreover, we note that the previous sentence in the quotation, stating that nothing in the proposals in Customs would have limited the agency's right to make assignments based on the individual qualifications of particular employees, is consistent with our findings in Boston Customs and this case because all three cases involve the rotational assignments of qualified employees within a system established by the Respondent. In these circumstances, as we have previously stated, proposals which address only the length of an assignment within such a rotation schedule do not interfere with management's right to assign work. Accordingly, we reject the Judge's finding that a "linkage" between the length of an assignment within an established rotation system and the particular duties to be assigned to an inspector can render nonnegotiable a proposal which would otherwise, under the principles outlined above, be within the duty to bargain. To the extent that Customs establishes such a principle, we will no longer adhere to it.

Finally, we reject the Respondent's argument, also made in Boston Customs, that the Authority's decision in Customs was "in essence, overruled by the Fifth Circuit in [United States Immigration and Naturalization Service v. Federal Labor Relations Authority], 834 F.2d 515 (5th Cir. 1987) (INS)." Post Hearing Brief at 7. We noted in Boston Customs that the "court's distinction [in INS] between assignments of work and conditions of employment has no foundation in the Statute." Slip op. at 17. We concluded that "[t]here is, quite simply, no basis on which to find that the two matters are mutually exclusive." Id. We further concluded that we would "not adhere to the court's conclusions regarding the right to assign work." Id.

For the foregoing reasons, we conclude, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute when it implemented changes in the rotation schedule on August 2, 1987, after refusing to bargain over a Union proposal which was substantially similar to a proposal found to be negotiable by the Authority in Customs.

VI. The Remedy

Where, as here, management has changed a negotiable condition of employment without fulfilling its obligation to bargain on that change, the Authority will grant a status quo ante remedy in the absence of special circumstances. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153, 155-56 (1990). A return to the status quo ante effectuates the purposes and policies of the Statute and ensures that the obligation to bargain is not rendered meaningless. See United States Army Adjutant General, Publication Center, St. Louis, Missouri, 35 FLRA 631, 634-35 (1990). The Respondent has not established any special circumstances to show that a status quo ante remedy is unwarranted in this case. In these circumstances, we conclude that, consistent with the General Counsel's request, a status quo ante remedy will effectuate the purposes and policies of the Statute.

Accordingly, we will order the Respondent to reinstate the rotation schedule as it existed without the changes implemented on August 2, 1987. If the Respondent seeks to change the duration of rotations within the schedule, it must first bargain with the Union about any such change in conditions of employment.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Customs Service, Region IV, Miami District, Miami, Florida, shall:

1. Cease and desist from:

(a) Unilaterally implementing changes in the rotation schedule for inspectors in the Miami District without bargaining with the National Treasury Employees Union, the exclusive representative of these employees, to the extent consistent with law and regulations, on the decision to effectuate such a change and, in particular, on the Union's proposal which was substantially similar to a proposal found to be negotiable by the Authority in National Treasury Employees Union and U.S. Customs Service, Northeast Region, 25 FLRA 731 (1987).

(b) In any like or related manner, interfering with, restraining or coercing their employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute.

(a) Upon request by the Union, rescind the changes in the rotation system for inspectors in the Miami District implemented on August 2, 1987.

(b) Notify the Union of any intention to implement changes in the rotation schedule for inspectors in the Miami District, and, upon request, bargain, to the extent consistent with law and regulation, with the Union on any decision to change the rotation schedule.

(c) Post at their facilities in the Miami 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, and shall be posted and maintained for 60 consecutive days in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IV, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT, unilaterally implement changes in the rotation schedule for inspectors in the Miami District without bargaining with the National Treasury Employees Union, the exclusive representative of these employees, to the extent consistent with law and regulations, on the decision to effectuate such a change and, in particular, on the Union's proposal which was substantially similar to a proposal found to be negotiable by the Authority in National Treasury Employees Union and U.S. Customs Service, 25 FLRA 731 (1987).

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce our employees in the exercise of the rights assured them by the Statute.

WE WILL, upon request by the Union, rescind the changes in the rotation system for inspectors in the Miami District implemented on August 2, 1987.

WE WILL, notify the Union of any intention to implement changes in the rotation schedule for inspectors in the Miami District, and, upon request, bargain, to the extent consistent with law and regulation, with the Union on any decision to change the rotation schedule.

___________________________
(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 IV, Federal Labor Relations Authority, whose address is: 1371 Peachtree Street, N.E., Suite 736, Atlanta, GA 30367 and whose telephone number is: (404) 347-2324.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ As we are reversing the Judge's decision, and as the Respondent did not file exceptions to the Judge's decision or an opposition to the General Counsel's exceptions, it is appropriate, in our view, to consider the Respondent's arguments to the Judge in this case.