UNITED STATES CUSTOMS SERVICE SAN FRANCISCO, CALIFORNIA and NATIONAL TREASURY EMPLOYEES UNION
NATIONAL TREASURY EMPLOYEES . UNION .
Charging Party/ Union. .. . . . . . . . . . . . . . . . Martha T. Wong Counsel for the Respondent
John Villasenor Representative of the Charging Party
R. Timothy Sheils Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
Statement of the Case
The unfair labor practice complaint alleges that Respondent
violated section 7116(a)(1), (5), and (6) of the Federal Service
Labor-Management Relations Statute (the Statute), 5 U.S.C. §§
7116(a)(1), (5), and (6), by implementing a new shift from 2 p.m.
to 10 p.m., while the Union's request for assistance with the
negotiations was pending before the Federal Service Impasses Panel.
The complaint also alleges that Respondent violated section
7116(a)(1) and (5) of the Statute by changing the policy of
assigning off days for Saturday work prior to the completion of
negotiations with the Union concerning the change.
Respondent's answer denied any violation of the Statute and
asserted, in part, that the issues remaining in dispute after
bargaining were not subject to further bargaining as they were
addressed by existing agreements. Respondent also maintained that
the Union had waived its right to bargain concerning the policy of
assigning off days for Saturday work by waiting until the "eleventh
hour" to request bargaining.
A hearing was held in San Francisco, California. The
Respondent, Union, and the General Counsel were represented and
afforded full opportunity to be heard, adduce relevant evidence,
examine and cross-examine witnesses, and file post-hearing briefs.
The Respondent and General Counsel filed helpful briefs. Based on
the entire record, including my observation of the witnesses and
their demeanor, I make the following findings of fact, conclusions
of law, and recommendations.
Findings of Fact
The Union (NTEU) is the certified exclusive representative
of a nationwide unit of employees appropriate for collective
bargaining at United States Customs Service, Washington, D.C.,
including the Respondent's San Francisco District, San Francisco,
From approximately 1983 until September 1991 there was only
one regular shift at the San Francisco International Airport (SFO),
from 8 a.m. to 5 p.m., and there was no regular shift at Oakland.
As a result, all of the work assignments of the inspectors at
Oakland and at SFO after 5 p.m. were overtime assignments. The
overtime assignments allowed inspectors to earn at a rate that
exceeded double time. Between 10-14 inspectors would work the
overtime assignment at SFO each night. At Oakland, four inspectors
would work three overtime assignments during the weekday evenings
until December 1991 when two additional weekday evenings of
overtime assignments were added. While only 35-40 of the region's
inspectors were assigned to the regular shift at the baggage
terminal, all 130 inspectors in the region participated in the
baggage overtime at both SFO and Oakland. The selection for the
baggage overtime involved a number of factors that had evolved from
various sources, including both past practices and provisions found
in various negotiated agreements.
On March 11, 1991, Respondent formally advised NTEU of its
intention to implement a new shift at SFO Baggage from 2 p.m. to 10
p.m. One of the main impacts of such a shift would be the
elimination of the previous overtime earned from 5 p.m. to 10 p.m.
The Respondent enclosed its proposed procedures for the new shift
and any additional overtime which would be required and invited the
Union to offer impact and implementation proposals.
The Respondent and the Union commenced negotiations on March
22, 1991. On March 25, 1991, Respondent sent the Union a
modification of its original procedures. The Union replied with its
own proposals on March 30, 1991. A bargaining session in April 1991
ended without the parties reaching agreement.
On May 13, 1991, Respondent distributed a modification of its plan to all employees to be effective May 28, 1991, which did not reflect the Union's position on all issues. The Union filed a request for assistance with the Federal Service Impasses Panel (FSIP or Panel) on May 15, 1991. Respondent rescinded its
May 13, 1991 plan on May 24, 1991. The Panel notified the
parties that it had docketed the Union's request for assistance as
91 FSIP 210.
While the parties were awaiting the Panel's action,
Respondent implemented a modified plan on September 9, 1991. The
plan contained the Union's proposed limit of a one-week involuntary
assignment to the new shift, but none of the other disputed issues
had been modified to reflect the Union's positions.
When the Union requested the assistance of the Panel in May 1991, there were a number of unresolved issues. The four main issues concerned (1) the length of the shift rotation;
(2) procedures for mandatory overtime, including the staffing
for work pending at 10 p.m. with personnel on the 2-10 p.m. shift;
(3) procedures for the replacement and trade of such overtime
assignments; and (4) procedures for an employee to request relief
from such overtime assignments.
The first issue, the length of the shift rotation, was
subsequently resolved when Respondent implemented the Union's
proposal. With respect to the second issue, concerning mandatory
overtime for personnel on the preceding shift, Respondent claimed
that its right to draft employees from the 2 p.m. to the 10 p.m.
shift to work pending overtime was covered by section (c) of Manual
Supplement VIII-2132-01 of February 24, 1981 ("Manual Supplement",
G.C. Ex. 7). Respondent claimed that section (c) of the 1981 Manual
Supplement continued in existence after INS 2, Customs Directive of
December 20, 1988 ("INS 2", G.C. Ex. 12) by virtue of a 1989
agreement or waiver on the part of the Union (Respondent's Ex. 2).
Section (c) of the 1981 Manual Supplement had never been
implemented. A previous 2-10 p.m. shift in 1983 did not have any
need for overtime between 10-12 p.m. as no flights were scheduled
to arrive between 10-12 p.m. (Tr. 269-70; 277). The Union took the
position that this section of the Manual Supplement did not apply
and was not effective pursuant to the agreement as it was in
conflict with INS 2 of 1988. There is no dispute that if the
provisions were in conflict with INS 2 it would be superseded by
INS 2. The 1981 Manual Supplement and management's proposal
required the initial assignment of overtime to personnel assigned
to the previous shifts while INS 2 of 1988 was more permissive and
provided that such personnel "will be considered first (in
accordance with excusal procedures) if this will result in less
cost to the government." The Union also took the position that the
mandatory assignment of overtime conflicted with agreements and
past practices under which the assignment to overtime depended upon
gender and the amount of overtime earned by an inspector up to that
time; that is, the inspector who had earned the lowest amount of
overtime could request the assignment and the inspector with the
most overtime earnings could request to be relieved of the
With respect to the issue regarding trade and replacement of
overtime assignments, the Union proposed to continue the practice
of an assigned inspector being able to trade job assignments with
another assigned inspector. For example, an inspector assigned a
cargo assignment could trade for a baggage assignment. The Union
also wanted to make sure that the practice of an inspector finding
a replacement could be applied to the new shift, even if the
replacement inspector was not assigned to the shift and would earn
increased overtime by virtue of being called back after completing
a shift that ended at 5 p.m. Respondent, relying on INS 2 and the
Manual Supplement, insisted that there be no additional expense to
the Government in trades and, similarly, that replacements be
limited to someone on the same shift to avoid as much as triple the
Article 22, Section 4 of the national agreement allows
inspectors to exchange overtime assignments. The provision lists
only three reasons for normally disapproving the replacement:
impairment of workflow, adverse impact upon number, types, and
grades of employees, and adverse impact upon the administration of
limits placed upon the permissible amount of overtime for
employees. The provision does not refer to disapproval of an
exchange because it would result in callback costs. This language
was disapproved by the Department of the Treasury during the agency
head review process. NTEU filed an appeal of that determination. On
November 27, 1992, the Authority reviewed the provision (Provision
28) and ordered the Agency to rescind its disapproval. National Treasury Employees Union and U.S. Department of the
Treasury, Customs Service, Washington, D.C., 46 FLRA 696,
752-54 (1992). Although the provision was not in effect uniformly
until the pending negotiability appeal was issued, inspectors in
the San Francisco Region were able to exercise the exchange
replacement procedure based on an established past practice.
With respect to the issue of employees' requesting relief
from overtime assignments, Section II.C.3 of INS 2 provided that,
"A night assignment shall not be split where there is reasonable
assurance that the assignment will terminate before 2 a.m." (Emphasis added). John Villasenor, Union
Chapter President, testified that this determination was difficult
for supervisors, so a practice developed whereby an inspector could
request to be replaced on overtime if a flight came in after 1
a.m., since it generally took one hour to clear a flight. The Union
had proposed to continue this practice. Respondent took the
position that the proposal was covered by the national agreement,
the mandatory overtime provision of the Regional Supplement, and
section II.C.3 of INS 2.
Also in dispute at the time of implementation was another
Union proposal relating to health and safety. It provided that
inspectors would not be drafted for overtime if they had worked
overtime the night before.
Witnesses for both parties conceded that there are a myriad
of agreements within the San Francisco district between NTEU and
the Respondent that may have a bearing on overtime assignments.
Respondent's Assistant District Director Tom O'Brien and NTEU's
National Counsel Andrew Krakoff acknowledged that the parties have
commonly negotiated agreements over a matter that may or may not be
covered by various outstanding agreements because they found it too
complicated to determine whether the matter is in fact covered by
an agreement. (Tr. 251-52; 314-15).
Effect of Implementation
Establishing the new shift on September 9, 1991, saved
Respondent about $150,000 in overtime costs in SFO Baggage.
Approximately $130,000 of this savings was spent by Respondent on
overtime in other areas. As a result, there was an overall decrease
of approximately $20,000 in the overtime earnings of inspectors.
The record reflects that some inspectors lost overtime pay as a
result of the implementation of the new shift. (Tr. 140; 157;
232-34; 244; 258).
There is now less overtime available, and there are still the same number of inspectors competing for overtime. Among the other areas where the overtime funds were shifted, a small portion was used on the Enforcement Team, an overtime assignment which is not available to all inspectors. (Tr. 233, 244-45,
248-49; 253; 337-38).
Representatives of Respondent and the Union met with FSIP
personnel in Washington, D.C., on March 27, 1992. After the
parties' opening statements, FSIP Assistant Director H. Joseph
Schimansky indicated that the matters in dispute appeared to
involve the interpretation of previously negotiated agreements best
decided by an arbitrator in the grievance process. He stated that
since the problem involved certain language in management's
proposals, the parties should spend the day resolving the matter by
developing language that would be agreeable to both sides.
Schimansky did not state what ultimate decision the Panel would
render if agreement were not reached, and he did not say that, in
that event, the Panel would dismiss the case for lack of
The parties worked all day on compromise language and
reached a memorandum of agreement in the Panel's offices. By the
March 27, 1992 memorandum the parties agreed to the implementation
of the 2 to 10 p.m. shift at SFO Baggage on September 9, 1991. It
stated that the "following procedures represent recent agreed-upon
language between management and the Union and other previously
existing agreements." With respect to the assignment of 2 to 10
p.m. shift inspectors to overtime, the agreement eliminated
specific reference to the 1981 Manual Supplement. Instead, it
included the more permissive language from INS 2 of 1988, including
reference to the excusal procedures, and generally referenced other
agreements and practices by stating that assignment to overtime
would be "pursuant to INS-2, existing agreements, policies, and
practices as applicable." The agreement also provided that
inspectors would indicate their avail-ability for overtime "per
existing agreements, policies, and past practices." The agreement
allowed inspectors to exchange over-time assignments "per the
language contained in Article 22, Section 4 of the National
Agreement and existing agreements and past practices between NTEU
and the San Francisco District until such time as the FLRA rules on
the pending negotiability appeal. . . . Should the Authority
determine the language is non-negotiable . . . either party may
reopen this section. . . ."
The parties acknowledged that some of the issues were "left
up in the air" by the compromise language and that any dispute as
to the new agreement's application would have to be processed under
the grievance procedure.
Day's Off For Saturday Work
Prior to September 9, 1991 an inspector assigned to work on
a Saturday could request to take another particular day off during
the week. Generally, the requested day off was granted.
On August 22, 1991, Supervisory Customs Inspector Barbin
notified Union President Villasenor that, due to the implementation
of the 2 to 10 p.m. shift on September 9, 1991, it was necessary
for Respondent to adopt the policy of assigning a particular day
off for Saturday work in advance, but that employee requests for a
change in the assigned day off would be given serious
consideration. Union President Villasenor did not specifically
request to bargain, but requested that the notice be given to him
in writing. He stated that he would pick it up.
On the morning of August 23, 1991, Barbin called Villasenor
and advised him that the letter was ready for pick-up. He also
advised Villasenor that an employee meeting would be held that
afternoon. Villasenor stated he would pick the letter up at the
Union President Villasenor did not show up for the August
23, 1991 meeting despite a 15 minute delay imposed to await his
arrival. Therefore, Inspector Barbin sent the notice of the
proposed change to Villasenor by the internal mail service that
On Friday, September 6, 1991, at 2:26 p.m., District
Director Paul Andrew received a letter by fax from Mr. Villasenor
requesting that the policy not be implemented until bargaining had
The policy of assigning day's off for Saturday work was
implemented on September 9, 1991. No bargaining took place.
Discussion and Conclusions
Alleged Failure to Maintain Status Quo While
The complaint alleges that Respondent violated section
7116(a)(1), (5), and (6) of the Statute by implementing the new
shift from 2 p.m. to 10 p.m. while the Union's request for
assistance was pending before the FSIP. The General Counsel argues
that the shift could not be implemented while the matter was before
the Panel, regardless of the ultimate action taken by the Panel,
and regardless of what effect any existing agreements may have on
the bargaining obligation. The General Counsel also claims that the
negotiations in question were not covered by the existing
agreements as (1) the parties ultimately reached an agreement that
included provisions which the Union had sought and which were other
than those implemented, (2) the parties reached an agreement on a
dispute involving the cargo shift while this matter was pending,
(3) the September 9, 1991 procedures were inconsistent with past
practices and with certain provisions of existing agreements, and
(4) the parties have made it a practice to negotiate specific
agreements that may cover the same subject as those covered by
Respondent defends on the basis that the Agency fully
bargained all negotiable proposals; that the remaining proposals in
dispute were covered by existing agreements; and that NTEU also
expressly waived further bargaining on the excusal issue.
Respondent claims that NTEU's request for FSIP assistance was
"actually a camouflage for seeking a favorable interpretation of
the language in existing agreements" and for Respondent "to have
waited for the ultimate outcome of the Panel . . . would permit the
NTEU to have delayed implementation under false pretenses of an
impasse situation, where its proposals are obviously
The record does not demonstrate that the Union was seeking
to delay implementation by falsely invoking the services of the
Panel. Rather, I find that the impasse was genuine. Some of the
proposals in dispute presented complicated impasse issues relating
to what language of which agreements applied to the change (that
is, whether certain provisions were in force, or were superseded
by, or in conflict with others) as well as proposals relating to
past practices where such practices differed from the parties'
agreements. Furthermore, the parties had a practice of negotiating
agreements over a matter that may be covered by various outstanding
agreements because they considered it too complicated, in view of
their many agreements, to determine whether the matter was, in
fact, covered by an agreement. Despite this practice, the
negotiations came to an impasse in this case because some of the
parties' various proposals did impact on the language in previous
agreements and on past practices.
The Agency's position that the parties' agreements covered
the matter or expressly waived the Union's right to bargain was a
threshold issue properly resolved by the Panel in deciding what
action to take or whether to retain jurisdiction over the
dispute.(1) See, e.g., Department of the Treasury, IRS, Nat'l Computer Ctr.,
Martinsburg, W. Va. and Chapter 82, Nat'l Treasury Employees Union,
Case No. 87 F.S.I.P. 168 (June 29, 1988) (FSIP, in part,
ordered the union to withdrawone
proposal relating to the assignment of
overtime and holiday work as it appeared to be inconsistent with
the parties' master collective bargaining agreement and, therefore,
involved a question of contract interpretation more appropriately
addressed in another forum. The Panel resolved other issues.)
The impasse case involved here was closed with the
assistance of the Panel as the result of a voluntary settlement.
According to Panel Release No. 337 of November 6, 1992, the Panel
resolves approximately 69 percent of its cases in this manner.
Chairman Edwin D. Brobeck stated in the Release, "In our view, the
best way to resolve disputes continues to be through voluntary
settlements, and we are committed, with the
resources at our disposal, to helping the parties make that
happen." (Emphasis added).
As the Authority recently stated in VA,
Decatur, Georgia, 46 FLRA at 345-46:
Once a party timely invokes the services of the Panel, the statusquo must be
maintained to the extent consistent with the necessary functioning of the agency,
in order to allow the Panel to take whatever action it deems appropriate. A
failure to maintain the status quo while a negotiation dispute is pending before the
Panel constitutes a violation of section 7116(a)(1), (5), and (6) of the Statute. For
example, Department of Health and Human Services, Health Care Financing
Administration, 39 FLRA 120, 131-32 (1991) enforced sub nom. Department of
Health and Human Services, Health Care Financing Administration v. FLRA, No.
91-1068 (4th Cir. Dec. 26, 1991).
The purpose of the requirement that the parties maintain the statusquo "is to
facilitate the Panel's consideration of negotiations impasses and allow the Panel to
take whatever action it deems appropriate to resolve the dispute." SSA, 35 FLRA at
950. An agency's obligation to maintain the status quo while matters are before the
Panel is not affected by the nature of the action the Panel eventually takes. In particular,
an agency is obligated to maintain the status quo even if the Panel ultimately declines
jurisdiction over the union's request for assistance. See U.S. Department of Justice,
Immigration and Naturalization Service, Washington, D.C., 44 FLRA 1065, 1072-73
(1992), petition for review filed sub nom. U.S. Department of Justice, Immigration and
Naturalization Service v.
FLRA, No. 92-4652 (5th Cir. June 24, 1992).
Respondent has not demonstrated that its action was
consistent with the necessary functioning of the agency. Although
costs are a legitimate factor to be considered in deciding what is
necessary for the efficient functioning of an agency, the Authority
has rejected an agency's argument that costs alone required
implementation while an impasse was pending before the Panel.
U.S. Department of Housing and Urban Development,
Kansas City Region, 23 FLRA 435, 437-38 (1986); Department of the Air Force, Scott Air Force Base,
Illinois, 42 FLRA 266, 273 (1991). Similarly, Respondent has
not demonstrated that its action in unilaterally implementing the
shift so that overtime costs could be shifted from baggage and
applied elsewhere was consistent with the necessary functioning of
the agency. Respondent had met its responsibilities for servicing
incoming flights for approximately eight years by means of an 8
a.m. to 5 p.m. shift and overtime assignments. There is no evidence
that a sudden change in flight patterns occurred in September 1991
to justify the unilateral implementation of a new shift before the
Panel could take appropriate action.
It is concluded that Respondent violated section 7116(a)(1),
(5), and (6) of the Statute by implementing the new shift while the
parties' negotiation dispute over the matter was pending before the
The Union and the General Counsel do not seek a statusquoante remedy with respect to the new shift
because of the subsequent March 27, 1992 agreement between the
parties. They do seek backpay for overtime lost during the period
from September 9, 1991 to March 27, 1992, the date that the matter
was resolved before the Panel. The record establishes that some
employees lost overtime pay which they were not able to make up
elsewhere as a result of Respondent's unlawful unilateral
implementation of the new shift while the impasse in negotiations
concerning the impact and implementation of the matter was pending
before the Panel. Backpay is appropriate where, as here, the
Agency's unlawful implementation resulted in a reduction of pay.
The amount of backpay owed will be a matter for compliance.
United States Customs Service, Southwest Region,
El Paso, Texas, 44 FLRA 1128, 1129-30 (1992); United States Immigration and Naturalization Service, Honolulu
District Office, Honolulu, Hawaii, 43 FLRA 608(1991);
Department of the Air Force, Scott Air Force
Base, 42 FLRA 266, 274-75 (1991).
Day's Off For Saturday Work
The complaint alleges that Respondent violated section
7116(a)(1) and (5) of the Statute by unilaterally implementing
changes in conditions of employment by changing the policy on
assigning "Saturday off days" prior to the completion of
negotiations with the Union over the substance, impact and
implementation of the change.
The record reflects that the Union received oral notice of
the proposed change on August 22, 1991, and written notice on or
about August 23, 1991. It did not respond, or submit a request to
bargain, until late in the day September 6, 1991, some two weeks
later, which was the Friday before the policy was to go in effect
on Monday, September 9, 1991.
When a union has adequate notice of when a proposed change
is to be implemented, it must make a timely request to bargain.
See United States
Department of Defense, Department of the Army, Headquarters, Fort
Sam Houston, Texas, 8 FLRA 623 (1982). Where the union's
request is submitted prior to the change, but at the 11th hour, it
has been held to be untimely. Department of the
Treasury, U.S. Customs Service, Region I (Boston,
Massachusetts), 16 FLRA 654, 671 (1984); Internal Revenue Service (District Region, National Office
Unit), 14 FLRA 698, 700 (1984).
The Union, under the circumstances of this case, was given
adequate notice of Respondent's proposed change and the opportunity
to bargain, but did not make a timely request to bargain.
Accordingly, Respondent did not unlawfully refuse to bargain in
good faith and did not violate section 7116(a)(1) and (5) of the
Statute, as alleged, with respect to the change in day's off for
Based on the foregoing findings and conclusions, it is
recommended that the Authority issue the following Order:
Pursuant to section 2423.29 of the Rules and Regulations of
the Federal Labor Relations Authority and section 7118 of the
Statute, it is hereby ordered that the United States Customs
Service, San Francisco, California, shall:
1. Cease and desist from:
(a) Failing and refusing to cooperate in
impasse proceedings by implementing a new work shift while a
request of the National Treasury Employees Union, the exclusive
representative of its employees, for assistance with a negotiation
impasse over the matter is pending before the Federal Service
(b) In any like or related manner
interfering with, restraining or coercing employees in the exercise
of their rights assured by the Federal Service Labor-Management
2. Take the following affirmative action in
order to effectuate the purposes and policies of the Federal
Service Labor-Management Relations Statute:
(a) Consistent with law and regulation,
make whole all bargaining unit employees for any loss of pay or
benefits suffered as a result of the implementation of the new work
shift on September 9, 1991, including backpay with interest for any
withdrawal or reduction in pay, allowances, or differentials.
(b) Post at its facilities 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.
(c) Pursuant to section 2423.30 of the Authori