50:0140(29)CA - - INS, Houston District, Houston, TX and AFGE, Local 3332 - - 1995 FLRAdec CA - - v50 p140



[ v50 p140 ]
50:0140(29)CA
The decision of the Authority follows:


50 FLRA No. 29

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. IMMIGRATION AND NATURALIZATION

SERVICE, HOUSTON DISTRICT

HOUSTON, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3332

(Charging Party/Union)

DA-CA-30056

_____

DECISION AND ORDER

February 23, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions and cross-exceptions. The Respondent filed an opposition to the General Counsel's cross-exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by instituting a new tour of duty for unit employees without notifying the Union and giving it an opportunity to negotiate over the impact and implementation of the change. The Judge concluded that the Respondent violated the Statute.

For the reasons set forth below, we find that the Respondent did not violate the Statute. Therefore, we dismiss the complaint.

II. Background

On September 28, 1992, the Respondent posted a work schedule which assigned inspectors at the Houston International Airport to a 4 p.m. to midnight shift for the pay period October 4-17, 1992. The preceding pay period, inspectors were assigned to a 3 p.m. to 11 p.m. shift. The following day, the Union President met with the Port Director "'about the [Union's] need for notification on shift changes.'" Judge's Decision at 10 (quoting Tr. at 42). Subsequently, the Union filed an unfair labor practice charge alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing the tour of duty of unit employees.

The Respondent contended before the Judge that there had been no change because the 4 p.m. to midnight shift was an established shift. The Respondent also contended that the matter was "covered by" Article 29, Section A(5), of the parties' collective bargaining agreement.(1) The General Counsel contended that, as employees had not been assigned to the 4 p.m. to midnight shift for over a year prior to October 1992, the Respondent was required to provide the Union with notice and opportunity to bargain over the shift under Article 9, Section A, of the parties' agreement.(2)

Inspections duty schedules introduced as evidence at the hearing reflected the existence of 21 different shifts at the U.S. Immigration and Naturalization Service (INS), Houston District Office. The schedules also reflected that unit employees were assigned to the 4 p.m. to midnight shift on eight occasions between September 2, 1985 (the date on which the shift was first established) and October 3, 1992.

III. Judge's Decision

The Judge found that the Respondent violated the Statute by failing to give the Union notice and an opportunity to bargain when it "re-instituted" the 4 p.m. to midnight shift. Judge's Decision at 9. The Judge relied on his previous decision in United States Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii, Case No. 98-CA-10383, ALJ Decision Reports, No. 109 (Aug. 5, 1993), that if a shift is consistently maintained on the Respondent's work schedules, there is no obligation to bargain over the assignment of unit employees to that shift. The Judge concluded that the Respondent did not consistently maintain the 4 p.m. to midnight shift on its duty assignment sheets and that, therefore, the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to give the Union notice of the change under Article 9, Section A, of the parties' agreement. However, the Judge further found that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by refusing to negotiate with the Union over the impact and implementation of the change because "the Union did not, during its meetings with [the] Respondent, request to bargain about impact and/or implementation[.]" Judge's Decision at 11. The Judge concluded that a cease and desist order was an appropriate remedy for the Respondent's failure to give the Union notice of the change in shift hours.

IV. Positions of the Parties

A. Respondent's Exceptions

The Respondent claims that the Judge based his finding that the Respondent violated the Statute on a breach of Article 9, Section A, of the parties' agreement. The Respondent asserts that the Judge erred in this regard because a violation of the Statute based on a contract violation was not alleged in the complaint. The Respondent also excepts to the Judge's finding that, by assigning employees to the 4 p.m. to midnight shift, it changed employees' conditions of employment. The Respondent contends that shift reassignments are routine and that it consistently maintained the 4 p.m. to midnight shift on its work schedules.

The Respondent makes three additional arguments. First, the Respondent argues that, as interpreted by the Judge to require the Respondent to give the Union 10 days' notice of schedule changes, Article 9, Section A, of the parties' agreement conflicts with 5 C.F.R. § 610.121(b)(2) and 5 U.S.C. § 6101(a)(3)(A), which require only 7 days' notice. Second, the Respondent contends that it was not obligated to bargain over assignments to the 4 p.m. to midnight shift because that matter was covered by Article 29, Section A(5), of the parties' agreement. Third, the Respondent argues that it was not obligated to bargain because its decision to assign employees to that shift had only a de minimis impact on the working conditions of unit employees.

B. General Counsel's Cross-Exceptions and Opposition

The General Counsel excepts to the Judge's conclusion that the Union did not seek to bargain over the impact and implementation of the change in shift hours. The General Counsel also excepts to the Judge's failure to order the Respondent to make unit employees whole for overtime pay lost as a result of the change. In opposition to the Respondent's exceptions, the General Counsel claims that the complaint alleged and the Judge found that the assignment of employees to the 4:00 p.m. to midnight shift violated the Statute.

C. Respondent's Opposition

The Respondent argues a make-whole remedy would be inappropriate because "management was carrying out its obligation under 5 C.F.R. § 610.121(b) to reschedule the unit employees' workweeks so as to 'coincide' with their 'actual work requirements.'" Opposition at 8.

V. Analysis and Conclusions

As a threshold matter, to conclude that the Respondent violated the Statute, it must be found that the Respondent's action in assigning employees to the 4 p.m. to midnight shift constituted a change in unit employees' conditions of employment. See Department of Veterans Affairs, Veterans Administration Medical Center, Veterans Canteen Service, Lexington, Kentucky, 44 FLRA 179, 187 (1992). Clearly the hours of work (tour of duty) to which employees are assigned is a condition of employment. See Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532, 541-44 (1988), affirmed sub nom. National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990). Determining whether a change in conditions of employment has occurred involves a case-by-case analysis. See, for example, Space Systems Division, Los Angeles Air Force Base, Los Angeles, California, 45 FLRA 899, 905 (1992); U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Memphis, Tennessee, 42 FLRA 712 (1991). For the following reasons, we find that the record does not support the Judge's conclusion that a change in unit employees' conditions of employment occurred in this case.

It is clear and undisputed that, as a routine matter, the Respondent assigns and reassigns inspectors to different shifts based on anticipated workload requirements. As such, the mere reassignment from one shift to another does not constitute a change in conditions of employment. In addition, the 4 p.m. to midnight shift was established in 1985 and has been listed on various work schedules, including all 1992 schedules introduced into evidence at the hearing, since that time. Thus, the Respondent did not change conditions of employment by establishing the shift in 1992.(3) Moreover, inspectors previously had been assigned to the disputed shift. In this regard, the record reflects that the disputed shift was used on eight occasions prior to its disputed use in 1992 to accommodate the arrival of international flights and the "earlier end of daylight savings time in Europe than in the United States." Judge's Decision at 2.

In these circumstances, we conclude that the Respondent did not change conditions of employment by assigning employees to the disputed shift, and that the Judge erred in ruling to the contrary. Accordingly, without addressing the Respondent's other arguments, the complaint must be dismissed.

VI. Order

The complaint is dismissed.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

IMMIGRATION AND NATURALIZATION
SERVICE, HOUSTON, TEXAS
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3332
Charging Party

Case No. DA-CA-30056

Ms. Ann Tunnell
For the Respondent

Christopher J. Ivits
For the General Counsel

Mr. Walter H. Lee, Jr.
For the Charging Party

Before: WILLIAM B. DEVANEY
Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq.(1), and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether Respondent unilaterally implemented a new shift without notifying the American Federation of Government Employees, Local 3332 (hereinafter, "Union"), and affording it an opportunity to negotiate concerning the impact and imple-mentation of a change in working conditions.

This case was initiated by a charge filed on October 14, 1992 (G.C. Exh. 1(a)). The Complaint and Notice of Hearing issued on December 28, 1992 (G.C. Exh. 1(c)), and set the hearing for February 11, 1993, pursuant to which a hearing was duly held on February 11, 1993, in Houston, Texas, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, March 11, 1993, was fixed as the date for mailing post-hearing briefs and Respondent and General Counsel each timely mailed a brief, received on, or before, March 18, 1993, which have been carefully considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:

Findings of Fact

1. The National Immigration and Naturalization Council, American Federation of Government Employees, AFL-CIO (herein-after, "INS Council") is the exclusive representative of a nationwide consolidated bargaining unit of employees of the United States Immigration and Naturalization Service (herein-after, "INS"), more fully described in the Agreement of INS and the INS Council (Jt. Exh. 1, Art. 1). The Union, American Federation of Government Employees, Local 3332, is an agent of the INS Council for representation of employees at INS' Houston, Texas, facility.

2. On, or before, September 28, 1992, Respondent posted a duty schedule which staffed the 1600-2400 (4:00 p.m. -midnight) shift at the Houston International Airport beginning with pay period 22, October 4 through October 17, 1992 (G.C. Exhs. 3, 4(c); Res. Exh. 1, p. 2; Tr. 15, 74, 85). Immediately before pay period 22, i.e. before October 4, 1992, (pay period 21, September 20 through October 3, 1992) the employees had been assigned to the 1500-2300 (3:00 p.m. - 11:00 p.m.) shift (Res. Exh. 1, p. 3) and immediately after October 17, 1992, i.e. pay period 23, October 18 through October 31, 1992 (Res. Exh. 1, p. 1), the employees reverted to the 1500-2300 shift.

3. The reason Respondent staffed the 1600-2400 shift for the period October 4-17, 1992, was the earlier end of daylight savings time in Europe than in the United States (Tr. 70).

4. The 1600-2400 shift was first established in 1985 and Respondent staffed it for the pay period September 29 through October 12, 1985 (Res. Exh. 1, pp. 20-21); Respondent staffed the 1600-2400 shift for the pay periods January 5 through January 18, 1986 (Res. Exh. 1, p. 19) and for the pay periods April 13, 1986 through April 26, 1986 (Res. Exh. 1, p. 18).

The 1600-2400 shift was not shown on duty assignment sheets for the pay periods: July 20 through August 2, 1986 (Res. Exh. 1, p. 17); July 31 through August 13, 1988 (Res. Exh. 1, p. 16); November 20 through December 3, 1988 (Res. Exh. 1, p. 15); January 1 through 14, 1989 (Res. Exh. 1, p. 14); April 23 through May 6, 1989 (Res. Exh. 1, p. 13); or September 24 through October 7, 1989 (Res. Exh. 1, p. 12).

Respondent staffed the 1600-2400 shift in 1990 for pay period 20, September 9-22, 1990 (Res. Exh. 1, p. 11) and pay period 21, September 23 through October 6, 1990 (Res. Exh. 1, p. 10).

In 1991, Respondent staffed the 1600-2400 shift as follows: pay period 4, January 27 through February 9, 1991 (Res. Exh. 1, p. 9); pay period 16, July 14-27, 1991 (Res. Exh. 1, p. 8); and pay period 23, October 20 through November 2, 1991 (Res. Exh. 1, p. 7).

In 1992, the 1600-2400 shift was shown, but was not staffed, for pay period 2, January 12 through 25, 1992 (Res. Exh. 1, p. 6); pay period 13, May 31 through June 13, 1992 (Res. Exh. 1, p. 5); pay period 14, June 14 through 27, 1992 (G.C. Exh. 2(e)); pay period 15, June 28 through July 11, 1992 (G.C. Exh. 2(d); pay period 16, July 12 through 25, 1992 (G.C. Exh. 2(c)); pay period 17, July 26 through August 8, 1992 (G.C. Exh. 2(b); and pay period 23, October 18 through 31, 1992 (Res. Exh. 1, p. 11).

In 1992, the 1600-2400 shift was shown and staffed by supervisors as follows: pay period 21, September 20 through October 3, 1992 (Res. Exh. 1, p. 3); and pay period 18, August 9-22, 1992 (Res. Exh. 1, p. 4; G.C. Exh. 2(a)).

Except as set forth in Paragraph 2, above, and in this Paragraph, the record does not show duty schedules for any other period.

5. As noted above, the October 1992, change was made because of the late arrivals of KLM and Air France flights as the result of differences in daylight savings time, a schedule difference Respondent had known as to KLM since March 11, 1992 (G.C. Exh. 5, Tr. 29) and as to Air France since August 26, 1992 (G.C. Exh. 6, Tr. 35-36).

6. Respondent asserts that the 1600-2400 shift had been an established shift since 1985; that Respondent maintained it as an established shift and staffed the shift from time to time as arrivals required, pursuant to Article 29A(5) of the parties agreement which provides, in part, that,

"(5) Assignments to tours of duty shall be posted 5 days in advance in the appropriate work area covering a 4 week period. . . ." (Jt. Exh. 1, Art. 29A(5)).

7. Mr. Ken Landgrebe, Assistant Port Director and responsible for scheduling (Tr. 67), testified that it was necessary frequently to make shift changes to accommodate changing passenger arrivals (Tr. 69); that employees may trade shifts, days off, or just about anything so long as a supervisor approves (Tr. 72) and that the only reason for not approving a trade would be if the person was not qualified to do the assigned job (Tr. 73). Mr. Landgrebe stated that "tour of duty" is the same as a shift (Tr. 75); that shifts listed at the top of shift schedules were established shifts (Tr. 79, 82), although not to his knowledge negotiated with the Union (Tr. 82)(2); that budgetary constraints required the adjustment of shift assignments to minimize overtime expenses (Tr. 67-68, 69-70, 81-82); and that for the 14 years he had been at Houston shift changes had been made by posting the duty schedules five days in advance in accordance with Article 29A(5). Stated otherwise, Mr. Landgrebe testified that Respondent had never given the Union notice under Article 9, entitled "Impact Bargaining" of shift changes (Jt. Exh. 1, Art. 9A; Tr. 74; 85); that an Article 9A notice was not necessary for a shift change, ". . . because we have to post it five days in advance according to the union contract." (Tr. 75). Mr. Landgrebe further stated that, ". . . the inability to post the schedule and to make the changes without negotiation would limit and restrict . . . the Service's ability to operate efficiently and reduce overtime as much as possible." (Tr. 74).

8. The Union conceded Respondent's practice of posting shift changes, indeed, Mr. Lee pointed out that not only was the 1600-2400 shift in effect for only one pay period (Tr. 44) after which the employees reverted to the 1500-2300 shift; but that they remained on that shift for only one pay period of two weeks and then changed to 1430-2230 (Tr. 45).

Mr. Charles J. Murphy, President of INS Council and chief negotiator for the Council, stated that,

". . . a 9-A notice is a notice by the Agency under article 9, subsection A of the contract as to changes they might be proposing to make in working conditions or to terms of the conditions of employment not covered in the contract. . . ." (Tr. 56).

Mr. Murphy further testified that,

"A. Well, I know that, for example . . . in the eastern region, I know that the eastern region districts and the eastern region office itself give no notices of changes in shifts. Additions of shifts, for example.

"Recently in the eastern region, the regional office . . . gave notice to our local regarding the institution of new shifts on Saturdays, or a new tour of duty essentially on Saturdays . . .". (Tr. 57-58).

Although Mr. Murphy stated that, in his opinion, non-use of a shift, i.e., dropping one shift and going to another shift, would be a change requiring an Article 9A notice (Tr. 59, 63), he readily admitted that shift changes are a part of the normal routine of an inspector's job at an airport (Tr. 61) and that Inspectors expect to work shift work and to rotate among shifts (Tr. 62). The duty schedules (Res. Exh. 1) show frequent rotation. For example, Ms. Beeman worked shifts 5, 9, 10 and 7 (Res. Exh. 1, pages 1, 2, 3 and 4), while Mr. Lee worked shifts 7, 2, 2, 5, 5, 10, 6 and 5 (Res. Exh. 1, pages 1, 2, 3, 4, 5, 6, 7 and 8).

9. Ms. Beeman testified that they lost overtime pay when the 1600-2400 shift was implemented because, had that shift not been implemented, either employees on the 1500-2300 shift would have been held over on overtime, or other employees would have been called in on "rollover" overtime to handle the closing of flights after 2300. She made a computation of the overtime lost and her computation of the dollar amount was $732.43 (G.C. Exh. 4(b)). Her methodology is set forth on General Counsel Exhibits 4(a) and (b) and she explained her computation at some length (Tr. 20-27, 30-31, 32).

Ms. Beeman also stated that the change from a starting time of 3:00 p.m. to 4:00 p.m. caused some people to make different arrangements for child care and for picking up children from school (Tr. 15). She also said that getting home after midnight had a psychological impact on her, ". . . going through there in the dark after midnight, it is a little harder on you." (Tr. 16); but she conceded that when on the 1500-2300 shift she did not leave the airport at 11:00 p.m. and had remained there until as late as 1:00 a.m. (Tr. 39).

Mr. Landgrebe testified,

". . . In my view, I saw a minimal impact. It was an hour adjustment. We have adjusted from time to time for years. . . ." (Tr. 81).

Indeed, Mr. Murphy strongly implies that such a "change" has little impact on employees:

". . . As I told the commissioner, these notices require a single page, stupid little letter; and that if the Agency wrote the union, nine times out of ten, matters would progress quickly and the new shift would (sic) implemented." (Tr. 63).

Conclusions

The President of the INS Council, Mr. Murphy, referred to two Hawaii cases (Tr. 61) and inferred: (a) that the Hawaii cases were alike; and (b) that the present case was like the Hawaii cases. As indicated hereinafter, Mr. Murphy is correct that each of the Hawaii cases and the instant case involved the assignment of inspectors to shifts; but he is incorrect that the two Hawaii were alike or that either is the same as the instant case. In fact, each case differs from each other case in critical respects.

The first Hawaii case in question was: United States Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii, 43 FLRA 608 (1991) (hereinafter, "INS Honolulu"). In that case, through a failure of notice, the activity unilaterally implemented a new 2100-0500 shift. Judge Arrigo, whose decision was adopted by the Authority, 43 FLRA at 608, held that,

". . . where an agency changes or establishes a tour of duty it is obligated to notify and negotiate with the exclusive representative over the procedures to be observed by management in changing or establishing the tour of duty and appropriate arrangements for employees adversely affected by management's exercise of its authority. . . . Accordingly . . . Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally establishing the 9:00 p.m. to 5:00 a.m. shift without notifying the Union and providing it with an opportunity to bargain on the impact and implementation of the change in tour of duty before establishing the new shift." (43 FLRA at 618-619).

The second Hawaii case in question was: United States Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii, Case No. 98-CA-10383, 109 ALJ Dec. Rep., August 5, 1993 (hereinafter, "Honolulu District Office"). In that case, the activity had lawfully implemented an 0500-1300 shift in 1987 and thereafter had consistently maintained the 0500-1300 shift as an established and existing shift on its Duty Assignment Sheets, although it had not continuously staffed the 0500-1300 shift. Rather, the staffing of the 0500-1300 shift, like the staffing of all other shifts, varied as the frequency of incoming flights varied. I held that a shift, after lawful implementation, remains an existing shift to which employees may be assigned, pursuant to Article 29, Section A(5) of the Agreement of the parties [which, of course, is the same Agreement herein], without notice or bargaining, following a period when the shift was not staffed, if the shift has consistently been maintained as an established and existing shift on the activity's Duty Assignment Sheets. I stated, in part, as follows:

". . . The Agreement of the parties (. . . Art. 29, Sec. A(5)) provides for the assignment of employees to tours of duty [footnote omitted]. The record firmly shows . . . that existing shifts are shown on the top of Respondent's Duty Assignment Sheets; that employees are assigned to all shifts, including non-staffing, as Respondent's fluctuating needs require; and that Respondent has consistently, over the years, assigned employees to existing shifts, as shown on the Duty Assignment Sheets, following periods of non-staffing of the shift. Tours of duty of employees is a condition of employment and the long continued practice of staffing all existing shifts, as shown on the Duty Assignment Sheets, as needed, including the discontinuance of staffing a shift when not needed and the resumption of staffing of the shift when needed, has become a condition of employment. Inasmuch as Respondent made no change in conditions of employment it had no obligation to give the Union notice or to bargain. Accordingly, having found that Respondent did not violate § 16(a)(1) or (5) of the Statute, it is recommended that the Authority adopt the following,

"ORDER

"The Complaint in Case No. 98-CA-10383 be, and the same is hereby, dismissed." (Slip opinion at pp. 14-15).

My decision in Case No. 98-CA-10383 was issued on June 18, 1993; no exceptions were filed; the decision of June 18, 1993, became final and, by Order dated July 30, 1993, the Authority dismissed the complaint in Case No. 98-CA-10383.

In the present case, Respondent did not consistently maintain the 1600-2400 shift on its Inspections Duty Schedules from the establishment of the shift in 1985, as set forth in Paragraph 4, above. Moreover, Respondent did not show that the 1600-2400 shift was maintained on all Inspections Duty Schedules during 1991 or 1992 prior to September 28, 1992. Thus, Respondent showed for 1991 that it staffed the 1600-2400 shift for pay periods 4 (January 27-February 9), 16 (July 14-27) and 23 (October 20-November 2) (Res. Exh. 1, pp. 7, 8 and 9). And for 1992, the Record established that the 1600-2400 shift was shown, but not staffed, for pay periods 2 (January 12-25), 13 (May 31-June 13), 14 (June 14-27), 15 (June 28-July 11), 16 (July 12-25), 17 (July 26-August 8) and 23 (October 18-31) (Res. Exh. 1, pp. 1, 5 and 6; G.C. Exhs. 2(b), (c), (d) and (e)); and further that it was shown and staffed by supervisors for pay period 21 (September 20-October 3) and 18 (August 9-22) (Res. Exh. 1, pp. 3 and 4; G.C. Exh. 2(a)).

Because the record does not show that Respondent consistently maintained the 1600-2400 shift on its Inspections Duty Schedules for 1992, prior to September 28, 1992,(3) and, because the record affirmatively showed a practice by Respondent to list the 1600-2400 shift on its Inspections Duty Schedules only sporadically, it can not be inferred that Respondent consistently maintained the 1600-2400 shift on its Inspections Duty Schedules for 1992 prior to September 28, 1992.(4) Accordingly, as Respondent failed to show that it consistently maintained the 1600-2400 shift as an existing and established shift, when it re-instituted the 1600-2400 shift it was changing working conditions and, pursuant to Article 9, Section A of the Agreement of the parties(5), Respondent was obligated to give the Union notice and an opportunity to bargain on the impact and implementation of the "new" shift.

Stated otherwise, I reject Charging Party's and General Counsel's contention, as I also rejected the same contentions in Honolulu District Office, supra, that whenever Respondent has ceased to staff a shift, it must give the Union notice, pursuant to Article 9A, and an opportunity to engage in I&I bargaining of any intended future staffing of that shift. To the contrary, if a shift is consistently maintained as an existing and established shift, Respondent may, pursuant to Article 29, Section A(5), assign employees to an existing shift, without notice to the Union or bargaining, following a period when the shift was not staffed. Failure to consistently maintain the shift on its Inspection Duty Schedules means that the shift ceases to be an existing shift and, if it is later to be re-instituted, Respondent must give the Union's notice, pursuant to Article 9A, and an opportunity to bargain on impact and/or implementation.

Respondent did not give the Union, quo Union, notice (Tr. 41), pursuant to Article 9A(6); however, the President of the Union, Mr. Walter H. Lee, Jr. (Tr. 40) saw the change in shift hours when it was posted, on or before September 28, 1992 (Tr. 15, 41), and the following day (Tr. 41) went to the Port Director, Mr. Wisniewski (Tr. 41). Mr. Lee tells us why he went to the Port Director and what occurred:

". . . We had been having an ongoing conversation about the need for notification on shift changes. I was a little bit upset that we had been having this ongoing conversation on the need to do this, and that he had changed the shift and not given us notices as we had talked about . . .

. . .

"A . . .

"I said, I thought we were making headway. I thought we had come to some agreement. Now, you change the shift, and I got no notification. . . .

. . .

"A . . . We had a conversation for the next day or so, trying to resolve this issue and come to some kind of agreement that would comply with the contract we could live with. We sat down for several different times, for hours at a time, trying to negotiate something out that would -- that, we could live with on the issues. . . .

. . .

"Q Were you trying to negotiate out the specific change of 3:00 to 11:00 to 4:00 to 12:00?

"A Yes. I was -- we were trying to discuss why we had had these prior weeks' discussions and he still failed to give the union a notice. I didn't understand what the problem was and how we could remedy that problem.

"Q Okay. So one clarification: Were you discussing notice changes --

"A Notice. Right. Notice." (Tr. 42-43).

With full knowledge of the shift change, the Union, by President Lee, before implementation of the shift, met with Respondent and negotiated about notice to the Union; but at no time did the Union seek to bargain about the impact or implementation of the change resulting from the announced implementation of the 1600-1200 shift. Accordingly, because the Union did not, during its negotiations with Respondent, request to bargain about the impact and/or implementation of the shift change, General Counsel's request for backpay is denied. Ordinarily, in such cases, the complaint is dismissed, Department of the Air Force, Headquarters, 93rd Combat Support Group (SAC), Castle Air Force Base, California, 18 FLRA 642, 643 (1985); Internal Revenue Service (District, Region, National Office Unit), 14 FLRA 698, 700, 701 (1984); Department of the Army, 12 FLRA 216, 217 (1983); Department of the Treasury, United States Customs Service, Region I, Boston, Massachusetts, and St. Albans, Vermont District Office, 10 FLRA 566, 567-568 (1982); United States Department of Defense, Department of the Army, Headquarters, Fort Sam Houston, Texas, 8 FLRA 623, 624 (1982); but, notwithstanding that Respondent did not refuse to negotiate about the impact and/or implementation of the shift change in this case because the Union did not, during its meetings with Respondent, request to bargain about impact and/or implementation, the Union is entitled, under Article 9A of their collective bargaining agreement, to ten workdays notice of a shift change; Respondent failed to give the Union notice of the shift change herein; and, both to remedy the violation and to assure future compliance, an appropriate order will be provided.

Accordingly, having found that Respondent violated §§ 16(a)(5) and (1) of the Statute by failing to give notice pursuant to Article 9A of the Agreement of the parties, it is recommended that the Authority adopt the following:

ORDER

Pursuant to § 18(a)(7) of the Statute, 5 U.S.C. § 7118(a)(7), and § 2423.29 of the Regulations, 5 C.F.R. § 2423.29, it is hereby ordered that the Immigration and Naturalization Service, Houston, Texas, shall:

1. Cease and desist from:

(a) Failing and refusing to give the American Federation of Government Employees, Local 3332 (hereinafter, "Union"), the authorized agent of the National Immigration and Naturalization Council, American Federation of Government Employees, AFL-CIO, the exclusive representative, notice of changes of working conditions of bargaining unit employees at the Houston International Airport by establishing a new work shift, which shall encompass the re-establishment of a prior work shift which Respondent has not continuously maintained as an existing shift on its Inspections Duty Schedules, and affording the Union the opportunity to negotiate over the impact and implementation of the change.

(b) In any like or related manner, interfering with, restraining or coercing its 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) Post at its facilities at the Immigration and Naturalization Service, Houston, Texas, 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 District Director, 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 insure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, 5 C.F.R. § 2423.30, notify the Regional Director of the Dallas Region, Federal Labor Relations Authority, 525 Griffin Street, Suite 926, Dallas, TX 75202-1906, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, March 2, 1994

___________________________
WILLIAM B. DEVANEY
Administrative Law Judge

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to give the American Federation of Government Employees, Local 3332 (hereinafter, "Union"), the authorized agent of the National Immigration and Naturaliza-tion Council, American Federation of Government Employees, AFL-CIO, the exclusive representative, notice of changes of working conditions of bargaining unit employees at the Houston International Airport by establishing a new work shift, which shall encompass the re-establishment of a prior work shift which Respondent has not continuously maintained as an existing shift on its Inspections Duty Schedules, and affording the Union the opportunity to negotiate over the impact and implementation of the 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.

_____________________________
(Activity)

Date:_____________ 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Region, 525 Griffin Street, Suite 926, Dallas, TX 75202-1906, and whose telephone number is: (214) 767-4996.




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


Authority's Footnotes Follow:

1. Article 29, Section A(5) provides, in pertinent part:

(5) Assignments to tours of duty shall be posted 5 days in advance . . . . Individual changes in the . . . schedule shall be posted . . . no later than one (1) week prior to the beginning of the workday affected. Exceptions . . . may be made where there is mutual agreement between the employees and supervisors involved. . . .

Jt. Exh. 1 at 47.

2. Article 9, Section A provides, in pertinent part:

The parties recognize that from time-to-time during the life of the Agreement, the need will arise for Management to change existing . . . working conditions not covered by this Agreement. The Service shall present the changes . . . to the Union in writing. . . . The Union will present its views and concerns . . . within a set time . . . . The time will be:

. . . .

Ten (10) Workdays at District Level

Id. at 14-15.

3. As the disputed shift was listed on every 1992 schedule offered into evidence, the record does not support the Judge's conclusion that the shift was not consistently maintained on the schedule. In any event, we reject the Judge's conclusion that whether a shift is consistently maintained on a schedule is, standing alone, determinative of whether a change in conditions of employment has occurred. Such fact is but one of the facts and circumstances that must be addressed in making such determination.


ALJ's Footnotes Follow:

1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7116(a)(5) will be referred to, simply, as "§ 16(a)(5)".

2. Mr. Walter H. Lee, President of the Union (Tr. 40), testified that prior to his election as president in October 1991, Local 3332 had been "dead" (Tr. 53). Inasmuch as the shifts all were listed at some time on duty schedules before October 1991 (Res. Exh. 1), the inactivity of Local 3332 for some period may have been a factor in the absence of I&I negotiations.

3. In Honolulu District Office, supra, the activity had consistently maintained the 0500-1300 shift from its implementation. Nevertheless, even if a shift were not consistently maintained from its first implementation, if it were at some later time implemented without challenge and, from that point, consistently maintained as an existing and established shift on its Inspections Duty Schedules for a substantial period, it would have become an established condition of employment. That is, if Respondent had implemented the shift on the second pay period of 1992, as it apparently did, and had consistently maintained the shift thereafter, then, by September 1992, it would have been an established condition of employment; but Respondent made no such showing.

4. I draw no adverse inference from Respondent's failure to produce all Inspections Duty Schedules for 1992 for the reason that General Counsel, who obviously had access to them, also did not produce them. Nevertheless, Respondent failed to show that it had consistently maintained the shift as an established and existing shift on its Inspections Duty Schedules for 1992.

5. Article 9, entitled "Impact Bargaining", provides, in part, that,

"A. The parties recognized that from time-to-time . . . the need will arise for Management to change . . . working conditions not covered by this Agreement. The Service shall present the changes .