[ v01 p398 ]
01:0398(49)CA
The decision of the Authority follows:
1 FLRA No. 49
DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
REGION I
BOSTON, MASSACHUSETTS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER NOS. 133, 138, 141,
142, 148, 154, 181 AND 184
Complainants
Assistant Secretary
Case No. 31-11459(CA)
DECISION AND ORDER
ON NOVEMBER 15, 1978, ADMINISTRATIVE LAW JUDGE RANDOLPH D. MASON
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING FINDING THAT THE RESPONDENT HAD VIOLATED SECTION 19(A)(1) AND
(6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY UNILATERALLY CHANGING THE
WORKING CONDITIONS OF EMPLOYEES WHEN IT IMPOSED A NEW POLICY REGARDING
SHIFT TRADING. THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE
RESPONDENT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE
ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER. NO EXCEPTIONS WERE FILED WITH RESPECT
TO THIS ASPECT OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER. THE ADMINISTRATIVE LAW JUDGE FOUND FURTHER THAT THE
RESPONDENT HAD NOT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER WHEN
IT ISSUED NEW GROOMING STANDARDS, AND THEREFORE RECOMMENDED THAT THE
REMAINDER OF THE COMPLAINT BE DISMISSED. THEREAFTER, THE COMPLAINANTS
FILED EXCEPTIONS WITH RESPECT TO THE PORTION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER DISMISSING PORTIONS OF THE
COMPLAINT, AND THE RESPONDENT FILED AN ANSWERING BRIEF.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, IN A MATTER SUCH AS HERE INVOLVED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, INCLUDING THE COMPLAINANTS' EXCEPTIONS AND THE RESPONDENT'S
ANSWERING BRIEF, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS IN
REGARD TO THAT PORTION OF THE COMPLAINT WHEREIN THE ADMINISTRATIVE LAW
JUDGE FOUND A VIOLATION OF EXECUTIVE ORDER 11491, AS AMENDED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS /1/ AND RECOMMENDATIONS. /2/
ORDER
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, REGION I,
SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY INSTITUTING CHANGES WITH RESPECT TO SHIFT TRADING BY
ITS EMPLOYEES WITHOUT
PROVIDING NOTICE TO, AND, UPON REQUEST, MEETING AND CONFERRING WITH
THE NATIONAL TREASURY EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF
ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE; AND
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, FOR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER;
(A) RESCIND AND REVOKE THE TERMS AND CONDITIONS OF EMPLOYMENT SET
FORTH IN ITS MEMORANDUM
OF AUGUST 15, 1977, PERTAINING TO THE CIRCUMSTANCES UNDER WHICH SHIFT
TRADING WOULD BE
PERMITTED, AND ANY SUBSEQUENT MEMORANDA ISSUED TO EFFECTUATE THOSE
TERMS AND CONDITIONS.
(B) NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION OF ANY INTENDED
CHANGE IN THE PRACTICE OF
SHIFT TRADING, AND, UPON REQUEST, MEET AND CONFER IN GOOD FAITH ON
SUCH INTENDED CHANGE.
(C) POST AT ITS FACILITIES IN THE OGDENSBERG DISTRICT COPIES OF THE
ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONS, REGION
I, U.S. CUSTOMS SERVICE,
DEPARTMENT OF THE TREASURY, AND THEY SHALL BE POSTED AND MAINTAINED
BY HIM FOR 60 CONSECUTIVE
DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE REGIONAL COMMISSIONER, REGION I, U.S.
CUSTOMS SERVICE, DEPARTMENT OF
THE TREASURY, SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE 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.
IT IS HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT IN
ASSISTANT SECRETARY CASE NO. 31-11459(CA) FOUND NOT TO BE VIOLATIVE OF
THE EXECUTIVE ORDER BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 6, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE CHANGES WITH RESPECT TO THE PRACTICE OF SHIFT
TRADING AND ANY OTHER TERMS AND CONDITIONS OF EMPLOYMENT, WITHOUT FIRST
NOTIFYING AND, UPON REQUEST, MEETING AND CONFERRING WITH THE NATIONAL
TREASURY EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF OUR UNIT
EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL RESCIND AND REVOKE THE TERMS AND CONDITIONS OF EMPLOYMENT SET
FORTH IN OUR MEMORANDUM OF AUGUST 15, 1977, CONCERNING THE CIRCUMSTANCES
UNDER WHICH SHIFT TRADING WILL BE PERMITTED, AND ANY SUBSEQUENT
MEMORANDA ISSUED TO EFFECTUATE IT.
WE WILL, UPON REQUEST, MEET AND CONFER WITH THE NATIONAL TREASURY
EMPLOYEES UNION, WITH RESPECT TO ANY PROPOSED CHANGES RELATING TO THE
PRACTICE OF SHIFT TRADING AND ANY OTHER TERMS AND CONDITIONS OF
EMPLOYMENT.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007.
RICHARD BLAZAR, ESQUIRE
ASSISTANT COUNSEL
JOHN F. BUFE, ESQUIRE
ASSOCIATE COUNSEL
1730 K STREET, N.W.
WASHINGTON, D.C. 200006
FOR THE COMPLAINANT
CHRISTOPHER DOHERTY, ESQUIRE
ASSISTANT REGIONAL COUNSEL
GREGORY A. DUNN
U.S. CUSTOMS SERVICE
100 SUMMER STREET
BOSTON, MASSACHUSETTS
FOR THE RESPONDENT
BEFORE: RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
CASE NO. 31-11459(CA)
RECOMMENDED DECISION AND ORDER
THIS PROCEEDING WAS HEARD IN BURLINGTON, VERMONT ON SEPTEMBER 19,
1978, AND ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED. PURSUANT TO
THE REGULATION OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS (HEREINAFTER CALLED THE ASSISTANT SECRETARY), A NOTICE OF
HEARING ON COMPLAINT WAS ISSUED ON AUGUST 17, 1978. THIS CASE WAS
INITIATED BY A COMPLAINT FILED ON NOVEMBER 21, 1977, BY THE NATIONAL
TREASURY EMPLOYEES UNION AND NTEU CHAPTER NOS. 133, 138, 141, 142, 148,
154, 181, 184. THE COMPLAINT ALLEGES MULTIPLE VIOLATIONS OF SECTIONS
19(A)(6) AND (1) OF THE ORDER BY THE U.S. CUSTOMS SERVICE, REGION I,
(HEREINAFTER THE RESPONDENT). SOME OF THE ALLEGATIONS WERE DISMISSED BY
THE REGIONAL ADMINISTRATOR, THE PRIMARY ISSUES REMAINING FOR DECISION
ARE AS FOLLOWS:
(1) WHETHER RESPONDENT UNILATERALLY CHANGED THE POLICIES AND
PROCEDURES UNDER WHICH INSPECTORS WERE PERMITTED TO TRADE SHIFTS;
(2) WHETHER RESPONDENT TOOK APPROPRIATE ACTION TO NOTIFY THE UNION OF
A PROPOSED CHANGE IN GROOMING STANDARDS;
(3) WHETHER THE UNION REQUESTED NEGOTIATIONS PRIOR TO IMPLEMENTATION
OF THE GROOMING STANDARDS; AND, IF NOT, ASSUMING RESPONDENT'S NOTICE
WAS LOST IN THE MAIL, WHETHER RESPONDENT WAS OBLIGATED TO RESCIND THE
STANDARDS AND NEGOTIATE WITH THE UNION.
AT THE HEARING, ALL PARTIES WERE REPRESENTED AND WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
WITNESSES, AND ARGUE ORALLY. THE RECORD WAS HELD OPEN FOR THE RECEIPT
OF A MEMORANDUM DATED AUGUST 18, 1977; THIS DOCUMENT WAS MARKED AND
RECEIVED AS COMPLAINANT'S EXHIBIT NO. 9. /3/ THEREAFTER, BOTH PARTIES
FILED BRIEFS. UPON CONSIDERATION OF THE ENTIRE RECORD, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
TESTIMONY AND EVIDENCE ADDUCED AT THE HEARING, /4/ I MAKE THE FOLLOWING
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN, THE NATIONAL TREASURY EMPLOYEES UNION
WAS THE EXCLUSIVE REPRESENTATIVE OF CERTAIN EMPLOYEES IN REGION I OF THE
U.S. CUSTOMS SERVICE. THE REGIONAL HEADQUARTERS WERE IN BOSTON,
MASSACHUSETTS. BY LETTER DATED MARCH 15, 1976, THE NATIONAL PRESIDENT
OF NTEU INFORMED RESPONDENT'S REGIONAL COMMISSIONER OF HIS OBLIGATION
UNDER THE EXECUTIVE ORDER TO NOTIFY NTEU OF ANY CHANGES IN PERSONNEL
POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING CONDITIONS PRIOR TO
THEIR IMPLEMENTATION SO THAT NTEU WOULD HAVE AN OPPORTUNITY TO INVOKE
ITS RIGHT TO NEGOTIATE AND TO PARTICIPATE IN NEGOTIATIONS. THE LETTER
THEN INFORMED THE RESPONDENT THAT THE ONLY SUITABLE RECIPIENT OF SUCH
NOTIFICATION WAS ROBERT TOBIAS, THE GENERAL COUNSEL OF NTEU IN
WASHINGTON,D.C. MR. TOBIAS' MAILING ADDRESS (INCLUDING ZIP CODE) WAS
SPECIFIED.
SHIFT TRADING
THE PORT OF CHAMPLAIN, NEW YORK, IS LOCATED WITHIN THE RESPONDENT'S
OGDENSBERG, NEW YORK, DISTRICT. THE PORT INCLUDES FIVE SUBPORTS AND
COVERS ABOUT 30 MILES ALONG THE CANADIAN BORDER. THE CUSTOMS INSPECTORS
ASSIGNED TO THIS PORT WORK AT 8 DIFFERENT LOCATIONS. DURING THE PERIOD
IN QUESTION, THERE WERE APPROXIMATELY 45 SHIFTS OR TOURS OF DUTY TO
WHICH THE INSPECTORS COULD BE ASSIGNED THROUGHOUT THE ENTIRE PORT OF
CHAMPLAIN.
SINCE NOVEMBER 8, 1968, THE U.S. CUSTOMS SERVICE HAS HAD A PUBLISHED
POLICY ("INS-2") REGARDING THE ROTATION OF INSPECTIONAL PERSONNEL
THROUGH DUTY ASSIGNMENTS AND TOURS OF DUTY. THIS DOCUMENT STATES THAT
WHERE DIFFERENT TOURS OF DUTY HAVE BEEN ESTABLISHED AT A PLACE OF
ASSIGNMENT, THE INSPECTORS SHALL BE ROTATED TO DIFFERENT TOURS AT LEAST
EVERY FOUR WEEKS. THE BURDEN WAS PLACED UPON THE DISTRICT DIRECTORS TO
MAKE THE NECESSARY PLANS AND SCHEDULES TO INSURE THAT INSPECTORS WOULD
RECEIVE EQUALITY OF TREATMENT IN ASSIGNMENT DESIRABILITY.
FOR SEVERAL YEARS PRIOR TO AUGUST 15, 1977, INSPECTORS AT THE PORT OF
CHAMPLAIN WERE ROUTINELY ALLOWED BY THEIR SUPERVISORS TO TRADE SHIFTS
WITH EACH OTHER AS LONG AS THE INSPECTORS WERE COMPETENT TO PERFORM THE
DUTIES AT THE LOCATIONS IN QUESTION. IF AN INSPECTOR DESIRED TO CHANGE
SHIFTS, IT WAS NECESSARY FOR HIM TO FIND ANOTHER INSPECTOR WHO WOULD
AGREE TO TRADE SHIFTS WITH HIM. THIS PRACTICE OF SHIFT "SWAPPING" WAS
EXTENSIVE AND ORAL REQUESTS WERE ALMOST ALWAYS GRANTED BY THE FOUR
SUPERVISORS AT THE PORT OF CHAMPLAIN. RESPONDENT DID NOT HAVE ANY
WRITTEN POLICY WITH RESPECT TO SHIFT TRADING.
ON SEPTEMBER 30, 1976, THE DISTRICT DIRECTOR FOR THE RESPONDENT'S
OGDENSBERG DISTRICT HELD A MEETING WITH THE PORT DIRECTOR FOR THE PORT
OF CHAMPLAIN AND THE PRESIDENT AND VICE PRESIDENT OF THE LOCAL CHAPTER
OF NTEU. DURING THE COURSE OF THIS MEETING, AT WHICH AT LEAST 15
SEPARATE AGENDA ITEMS WERE DISCUSSED, THE DISTRICT DIRECTOR PROPOSED
THAT SHIFT TRADING BE PERMITTED ONLY IN "EMERGENCY SITUATIONS OR
SITUATIONS INVOLVING A CLEARLY JUSTIFIABLE NEED." THE UNION PRESIDENT
STATED THAT HE WAS "VERY MUCH OPPOSED" TO THIS PROPOSAL.
THE ABOVE MEETING HAD NO EFFECT UPON THE LIBERAL SHIFT TRADING POLICY
CARRIED OUT BY THE RESPONDENT'S SUPERVISORS AT THE PORT OF CHAMPLAIN.
THE PRACTICE CONTINUED AS IT HAD IN THE PAST.
ON AUGUST 15, 1977, THE DIRECTOR OF INSPECTION AND CONTROL ISSUED A
MEMORANDUM TO ALL PORT DIRECTORS WITHIN THE OGDENSBERG DISTRICT WHICH
PROVIDED THAT REQUESTS FOR SHIFT TRADING SHOULD BE GRANTED ONLY UNDER
EMERGENCY SITUATIONS. THIS DIRECTIVE WAS IMMEDIATELY IMPLEMENTED BY THE
PORT DIRECTOR OF THE PORT OF CHAMPLAIN. ON AUGUST 22 HE ISSUED A
MEMORANDUM TO ALL INSPECTORS AT THE PORT IN WHICH HE FURTHER REQUIRED
THAT REQUESTS FOR SHIFT TRADING BE MADE IN WRITING TO THE SUPERVISORY
INSPECTOR AND THAT THE "EMERGENCY OR OTHER VALID REASON" SHOULD BE
STATED THEREIN.
THE UNION WAS NOT GIVEN ANY ADVANCE NOTICE THAT THE AUGUST 15
MEMORANDUM WAS GOING TO BE ISSUED. THIS MEMORANDUM SIGNIFICANTLY
CHANGED THE WORKING CONDITIONS OF THE INSPECTORS AT THE PORT OF
CHAMPLAIN. PRIOR TO AUGUST 15, 1977, BETWEEN 300 AND 400 REQUESTS FOR
SHIFT TRADING (REPRESENTING 150 TO 200 TRADES) WERE SUBMITTED BY
INSPECTORS DURING EACH TWO-WEEK PAY PERIOD. AFTER THE AUGUST 15
MEMORANDUM, THE NUMBER OF REQUESTS DECREASED DRAMATICALLY. DURING THE
13-MONTH PERIOD AFTER THE MEMORANDUM ONLY 222 REQUESTS WERE MADE.
ALTHOUGH MANY OF THESE REQUESTS APPEARED TO HAVE BEEN GRANTED WHERE NO
EMERGENCY WAS SHOWN, THE EVIDENCE DOES NOT REVEAL WHETHER THIS APPARENT
DISREGARD OF THE EMERGENCY STANDARD IS ONLY A RECENT OCCURRENCE OR
WHETHER IT MAY BE SOLELY ATTRIBUTABLE TO ONE OR TWO OF THE FOUR
SUPERVISORS AT THE PORT OF CHAMPLAIN. IN ANY EVENT, THE EVIDENCE IS
SUFFICIENT TO DEMONSTRATE A SIGNIFICANT CHANGE IN THE WORKING CONDITIONS
OF MANY INSPECTORS AT THE PORT OF CHAMPLAIN.
I ALSO FIND THAT THE AUGUST 15 MEMORANDUM CHANGED THE WORKING
CONDITIONS OF OTHER INSPECTORS AT OTHER PORTS AND FACILITIES WITHIN THE
OGDENSBERG DISTRICT. THIS FINDING IS SUPPORTED BY THE FACT THAT ALL OF
THE PORT DIRECTORS CALLED THE AUTHOR OF THE AUGUST 15 MEMORANDUM TO
DETERMINE WHAT CONSTITUTED AN "EMERGENCY", INDICATING THAT THEY ALL
CONSIDERED THIS RESTRICTIVE STANDARD TO REPRESENT A CHANGE IN POLICY.
FURTHERMORE, THE AUTHOR OF THE MEMORANDUM TESTIFIED, AND I SO FIND, THAT
AFTER THE MEMORANDUM WAS ISSUED THE PORT DIRECTORS RESTRICTED SHIFT
TRADING TO SUCH AN EXTENT THAT THE PRACTICE WAS "ALMOST STOPPED."
GROOMING STANDARDS
IN JULY OF 1977, RESPONDENT'S ACTING REGIONAL COMMISSIONER COMPLETED
A PROPOSED DRAFT OF A CIRCULAR (FAC-10-A:P:ER) ENTITLED "GROOMING
STANDARDS FOR UNIFORMED PERSONNEL OF THE BOSTON REGION." RESPONDENT
CONSIDERED THE SUBJECT OF THE CIRCULAR A NEGOTIABLE MATTER. IN
ACCORDANCE WITH THE NTEU'S LETTER OF MARCH 15, 1976, (SEE THE FIRST
PARAGRAPH OF THESE FINDINGS), RESPONDENT TOOK STEPS TO NOTIFY THE NTEU'S
GENERAL COUNSEL IN WASHINGTON, D.C. BY MAIL. THE UNION HAD INSTRUCTED
THE RESPONDENT THAT THIS WOULD BE THE ONLY SUITABLE METHOD OF
NOTIFICATION OF PROPOSED CHANGES IN WORKING CONDITIONS. IN THE PAST,
RESPONDENT HAD NOTIFIED THE UNION OF SUCH CHANGES BY THE ABOVE METHOD ON
NUMEROUS OCCASIONS.
ON JULY 21, 1977, RESPONDENT APPROVED AND SIGNED A LETTER CORRECTLY
ADDRESSED TO THE GENERAL COUNSEL OF THE UNION IN WASHINGTON, D.C., WHICH
ENCLOSED A COPY OF THE CIRCULAR CONCERNING GROOMING STANDARDS AND
STATED
THAT THE CIRCULAR WOULD BE ISSUED ON OR ABOUT AUGUST 15, 1977. THE
EMPLOYEE RELATIONS CLERK WHO HAD TYPED THIS LETTER PLACED THE LETTER AND
THE CIRCULAR IN A FRANKED ENVELOPE BEARING THE PRINTED RETURN ADDRESS OF
THE RESPONDENT'S REGIONAL COMMISSIONER OF CUSTOMS IN BOSTON,
MASSACHUSETTS. ON THE SAME DATE, THE EMPLOYEE RELATIONS CLERK CARRIED
THIS ENVELOPE TO THE MAIL ROOM ON THE SAME FLOOR. THE MAIL CLERK TOOK
THE LETTER AND PLACED IT WITH ABOUT 15 OTHER LETTERS AND BOUND THESE
LETTERS WITH A WRAPPER MARKED "OUT OF STATE DELIVERY." IN THE ORDINARY
COURSE OF BUSINESS, AT 4:00 P.M. EACH DAY THE MAIL CLERK DEPOSITED ALL
SUCH LETTERS IN A U.S. POST OFFICE BOX. UNDER THE CIRCUMSTANCES, I MUST
INFER AND FIND THAT THE ABOVE JULY 21 LETTER OF NOTIFICATION TO THE
UNION WAS PROPERLY MAILED ON THAT DATE. THE LETTER WAS SENT BY FIRST
CLASS MAIL (THE METHOD CUSTOMARILY USED BY THE RESPONDENT) AND WAS NEVER
RETURNED TO THE RESPONDENT BY THE POST OFFICE.
IN THE NORMAL COURSE OF EVENTS, LETTERS ADDRESSED TO THE UNION'S
GENERAL COUNSEL ARE RECEIVED IN THE NATIONAL HEADQUARTERS AND CARRIED BY
A CLERK TO THE DESK OF THE GENERAL COUNSEL. THE LATTER INDIVIDUAL THEN
CARRIED THE NOTIFICATION LETTER TO THE APPROPRIATE NATIONAL FIELD
REPRESENTATIVE IN THE HEADQUARTERS OFFICE WHO IS RESPONSIBLE FOR
NEGOTIATION WITH THE GOVERNMENT AGENCY IN QUESTION. I, THE INSTANCE
CASE, THE NATIONAL FIELD REPRESENTATIVE OF THE RESPONDENT'S EMPLOYEES
TESTIFIED THAT NEITHER HE NOR THE GENERAL COUNSEL HAD RECEIVED THE JULY
21 LETTER. DURING THE LAST PART OF JULY (AND POSSIBLY THE FIRST FEW
DAYS IN AUGUST) OF 1977, THE NATIONAL FIELD REPRESENTATIVE IN QUESTION
WAS OUT OF TOWN ON BUSINESS. ON SUNDAY, AUGUST 7, THIS REPRESENTATIVE
LEFT WASHINGTON, D.C. ON ANOTHER BUSINESS TRIP, AND DID NOT RETURN UNTIL
SUNDAY, AUGUST 21, 1977. THE GENERAL COUNSEL AND OTHER STAFF MEMBERS
ALSO ACCOMPANIED THIS REPRESENTATIVE ON THE TRIP.
RESPONDENT ISSUED THE GROOMING STANDARDS CIRCULAR ON AUGUST 15, 1977;
NO REQUEST FOR NEGOTIATIONS HAD BEEN RECEIVED FROM THE UNION BY THAT
DATE. THE ONLY DATE APPEARING ON THE CIRCULAR WAS THE DATE THAT IT WAS
ISSUED, I.E. AUGUST 15, 1977. NO PROVISION WAS MADE FOR ANY OTHER
"EFFECTIVE DATE." THE RESPONDENT'S PROCEDURAL MANUAL REGARDING THE
ISSUANCE OF CIRCULARS PROVIDES, IN ACCORDANCE WITH ITS NORMAL PRACTICE,
THAT CIRCULARS ARE EFFECTIVE ON THE DATE OF ISSUANCE UNLESS OTHERWISE
SPECIFIED.
THE CIRCULAR IN QUESTION ESTABLISHED GROOMING STANDARDS FOR UNIFORMED
PERSONNEL IN REGION 1. THE STANDARDS AFFECTED A LARGE NUM0ER OF
EMPLOYEES IN THE REGION AND CONSTITUTED A DRAMATIC CHANGE IN THE WORKING
CONDITIONS OF THESE INDIVIDUALS. THE CIRCULAR REQUIRED, IN PART, THAT
THE MEN AND WOMEN MUST WEAR THE OFFICIAL UNIFORMS, HEADGEAR, BADGES, AND
PROPER INSIGNIA AT ALL TIMES; A SWEATER COULD NOT BE WORN AS AN OUTER
GARMENT; EXCESSIVE OR INAPPROPRIATE JEWELRY WAS PROHIBITED. IN
ADDITION, THE CIRCULAR REQUIRED THAT HAIR BE CUT TO A SPECIFIED LENGTH;
BEARDS WERE PROHIBITED. ANY REQUESTS FOR EXCEPTIONS TO THE GROOMING
STANDARDS PRESCRIBED IN THE CIRCULAR WERE REQUIRED TO BE BASED UPON
DOCUMENTED MEDICAL REASONS, CERTIFIED BY A PHYSICIAN AND ACCEPTABLE TO
THE RESPONDENT. THE CIRCULAR ALSO STATED:
FAILURE TO CONFORM WITH THESE GROOMING STANDARDS WILL RESULT IN
DISCIPLINARY ACTION. ALL
MANAGERS AND SUPERVISORS OF UNIFORMED PERSONNEL OF THE BOSTON REGION
(RESPONDENT HEREIN) ARE
CHARGED WITH ENFORCEMENT OF THESE GROOMING STANDARDS. ANY VIOLATIONS
WILL BE REPORTED
IMMEDIATELY TO THE COGNIZANT PORT DIRECTOR, AREA DIRECTOR, DIRECTOR
OF PATROL DIVISION AND/OR
DISTRICT DIRECTOR.
THE CIRCULAR WAS SIGNED BY THE ACTING REGIONAL COMMISSIONER AND WAS
TO BE DISTRIBUTED TO ALL AFFECTED UNIFORMED PERSONNEL WITHIN REGION I.
ON AUGUST 18 ONE OF THE AFFECTED PORT DIRECTORS ISSUED A MEMORANDUM
TO HIS STAFF STATING, IN PART, AS FOLLOWS:
PLEASE SEE THAT UNIFORMS AND GROOMING ARE IN CONFORMITY WITH CITED
CIRCULAR NO LATER THAN
08/26/77.
* * * *
FEMALE INSPECTORS WILL PLEASE SEE THAT UNIFORMS ARE IN COMPLIANCE AS
SOON AS POSSIBLE
ESPECIALLY IN REFERENCE TO APPROPRIATE HEADWEAR.
ON AUGUST 19 ANOTHER OFFICER IN THE SAME DISTRICT ISSUED A MEMORANDUM
TO ALL OF HIS INSPECTORS ALSO DIRECTING THEM TO CONFORM WITH THE
GROOMING STANDARDS BY AUGUST 26, 1977. THE MEMORANDUM THEN STATED:
"ANY INSPECTORS UNABLE TO CONFORM TO THE GROOMING STANDARDS MUST SUBMIT
A REQUEST FOR AN EXCEPTION BEFORE THIS DATE." HE THEN STATED THAT
FAILURE TO CONFORM WITH THE STANDARDS WOULD RESULT IN DISCIPLINARY
ACTION.
ON AUGUST 21 THE NATIONAL FIELD REPRESENTATIVE RETURNED FROM HIS
BUSINESS TRIP AND RECEIVED A TELEPHONE CALL FROM AN EMPLOYEE IN THE
ABOVE-MENTIONED DISTRICT WHEREIN THE DATE FOR FULL COMPLIANCE HAD BEEN
SET FOR AUGUST 26. THE NATIONAL FIELD REPRESENTATIVE LEARNED OF THE
CIRCULAR FOR THE FIRST TIME FROM THIS EMPLOYEE. THE NEXT DAY THE
REPRESENTATIVE CALLED THE RESPONDENT'S LABOR RELATIONS BRANCH IN BOSTON,
MASSACHUSETTS TO REQUEST NEGOTIATIONS WITH RESPECT TO THE GROOMING
STANDARDS CIRCULAR. HE STATED THAT HIS REQUEST WAS TIMELY IN VIEW OF
HIS UNDERSTANDING THAT THE CIRCULAR WOULD NOT BE IMPLEMENTED UNTIL
AUGUST 26. ON AUGUST 23, THE NATIONAL FIELD REPRESENTATIVE WROTE A
LETTER TO RESPONDENT'S REGIONAL COMMISSIONER IN BOSTON, MASSACHUSETTS,
COMPLAINING THAT THE UNION HAD NOT RECEIVED NOTICE OF THE CHANGE IN
GROOMING STANDARDS IN SUFFICIENT TIME TO EXERCISE ITS RIGHT TO
NEGOTIATE. HE STATED THAT THE CIRCULAR SHOULD BE RESCINDED PENDING
COMPLETION OF NEGOTIATIONS. THE RESPONDENT CONSISTENTLY REPLIED DURING
THE AUGUST 22 CONVERSATION, AND IN SUBSEQUENT CONVERSATIONS, THAT NOTICE
HAD BEEN GIVEN TO THE UNION IN ACCORDANCE WITH THE UNION'S INSTRUCTIONS
AND THAT THE CIRCULAR HAD ALREADY BEEN IMPLEMENTED. UNDER THESE
CIRCUMSTANCES, THE RESPONDENT'S REPRESENTATIVE STATED THAT HE DID NOT
SEE ANY NEED TO NEGOTIATE BUT THAT HE WOULD BE WILLING TO "MEET AND
DISCUSS" THE MATTER WITH THE UNION. ON AUGUST 29 THE NATIONAL FIELD
REPRESENTATIVE WROTE THE RESPONDENT AND STATED THAT NEGOTIATIONS WOULD
BE NECESSARY AND THAT "MEETING TO DISCUSS" THE MATTER WOULD NOT SATISFY
THEIR OBLIGATIONS.
IN THE UNION'S COMPLAINT FILED ON NOVEMBER 21, 1977, THE UNION
ALLEGED THAT "BY MEANS OF THE REGIONAL CIRCULAR . . . DATED AUGUST 15,
1977, (RESPONDENT) IMPLEMENTED A POLICY WHICH TOTALLY REVISED THE
GROOMING STANDARDS FOR UNIFORMED PERSONNEL OF REGION I. THIS CHANGE WAS
UNILATERALLY IMPLEMENTED WITHOUT PRIOR NOTICE TO THE EXCLUSIVE
REPRESENTATIVE."
CONCLUSIONS
1. THE FIRST ISSUE FOR CONSIDERATION IS WHETHER THE RESPONDENT
UNILATERALLY CHANGED THE PAST PRACTICE WITH RESPECT TO SHIFT TRADING IN
VIOLATION OF SECTIONS 19(A)(1) AND (6). SECTION 11(A) PROVIDES, IN
PART, THAT AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE SHALL MEET AND
CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES
AND MATTERS AFFECTING WORKING CONDITIONS. THE PARTIES HAVE STIPULATED
THAT THE ALLEGED CHANGE IN THE PAST PRACTICE OF SHIFT TRADING
REPRESENTED A NEGOTIABLE ISSUE UNDER SECTION 11(A). AN AGENCY IS NOT
PERMITTED TO ALTER OR CHANGE SUCH WORKING CONDITIONS WITHOUT FIRST
NOTIFYING THE COLLECTIVE BARGAINING REPRESENTATIVE OF THE EMPLOYEES
AFFECTED AND, UPON REQUEST, BARGAINING ABOUT SUCH PROPOSED CHANGES
BEFORE THEY ARE PUT INTO EFFECT. U.S. ARMY FINANCE AND ACCOUNTING
CENTER, FORT BENJAMIN HARRISON, INDIANAPOLIS, INDIANA, A/SLMR NO.
651(1976), 6 A/SLMR 216.
I HAVE CONCLUDED THAT PRIOR TO AUGUST 15, 1977, A LIBERAL SHIFT
TRADING POLICY WAS IN EFFECT WITHIN THE RESPONDENT'S OGDENSBERG
DISTRICT. THE INSPECTORS ROUTINELY REQUESTED PERMISSION TO TRADE SHIFTS
WITH EACH OTHER; THESE REQUESTS WERE ALMOST ALWAYS GRANTED WHEN TWO
INSPECTORS OF EQUAL COMPETENCE MUTUALLY AGREED TO EXCHANGE THEIR SHIFTS.
SUCH TRADING WAS EXTENSIVE. ON AUGUST 15 THE RESPONDENT ISSUED A
MEMORANDUM WHICH SUBSTANTIALLY CHANGED THE WORKING CONDITIONS OF THE
INSPECTORS BY IMPOSING A RESTRICTIVE POLICY REGARDING SHIFT TRADING.
THIS NEW POLICY PROHIBITED SHIFT TRADING EXCEPT IN EMERGENCY SITUATIONS.
AS A DIRECT RESULT OF THIS CHANGE IN POLICY, THE NUM0ER OF REQUESTS FOR
SHIFT TRADING DRAMATICALLY DECREASED. /5/ THUS, IT IS CLEAR THAT THE
RESPONDENT CHANGED A PAST PRACTICE, AND, IN VIEW OF THE STIPULATIONS OF
THE PARTIES, RESPONDENT WAS REQUIRED TO NOTIFY THE UNION AND, UPON
REQUEST, BARGAIN ABOUT THE PROPOSED CHANGES BEFORE THEY WERE PUT INTO
EFFECT. RESPONDENT FAILED TO NOTIFY THE UNION PRIOR TO MAKING THIS
CHANGE.
IN REACHING THESE CONCLUSIONS I HAVE REJECTED RESPONDENT'S ARGUMENT
THAT THE AUGUST 15, 1977, MEMORANDUM WAS MERELY A REAFFIRMATION OF AN
EXISTING POLICY ANNOUNCED AT THE MEETING OF SEPTEMBER 30, 1976, BETWEEN
RESPONDENT'S REPRESENTATIVES AND THE PRESIDENT AND VICE PRESIDENT OF THE
LOCAL UNION CHAPTER. I HAVE CONCLUDED THAT THE RESPONDENT DID NOT
ESTABLISH ANY SHIFT TRADING POLICY AT THAT MEETING. WHEN THE SUBJECT
WAS RAISED AT THE MEETING BY THE DISTRICT DIRECTOR, THE UNION PRESIDENT
STRONGLY OPPOSED ANY RESTRICTIVE SHIFT TRADING POLICY. BETWEEN
SEPTEMBER 30, 1976 AND AUGUST 15, 1977, THE LIBERAL SHIFT TRADING POLICY
REMAINED IN EFFECT AND SUCH TRADING WAS EXTENSIVE. UNDER THE
CIRCUMSTANCES, I HAVE CONCLUDED THAT THE DISTRICT DIRECTOR'S "PROPOSAL"
AT THE SEPTEMBER 30 MEETING WAS IN THE NATURE OF A FEELER, AND THAT
RESPONDENT DROPPED THE IDEA AFTER HEARING THE UNION'S NEGATIVE REACTION.
IT WAS REASONABLE FOR THE UNION TO HAVE CONSIDERED THE MATTER A DEAD
ISSUE. /6/
IN VIEW OF THE FOREGOING CONCLUSIONS, I HOLD THAT THE RESPONDENT
VIOLATED SECTIONS 19(A)(6) AND (1) OF THE EXECUTIVE ORDER. SINCE A
STATUS QUO ANTE REMEDY IS APPROPRIATE IN CASES OF THIS NATURE, U.S. ARMY
FINANCE ACCOUNTING CENTER, SUPRA, THE AUGUST 15 MEMORANDUM SHOULD BE
RESCINDED. IN THE EVENT THAT RESPONDENT STILL DESIRES TO CHANGE THE
WORKING CONDITIONS IN QUESTION, IT MUST PROVIDE NOTICE TO, AND, UPON
REQUEST, MEET AND CONFER WITH THE NTEU, THE EXCLUSIVE REPRESENTATIVE OF
RESPONDENT'S EMPLOYEES.
2. THE NEXT ISSUES FOR CONSIDERATION ARISE OUT OF RESPONDENT'S
ISSUANCE ON AUGUST 15, 1977, OF A NEW SET OF GROOMING STANDARDS FOR
UNIFORMED PERSONNEL IN REGION I. RESPONDENT CONCEDES THAT THE NEW
STANDARDS CONSTITUTED A CHANGE IN WORKING CONDITIONS WITHIN THE AMBIT OF
SECTION 11(A) OF THE EXECUTIVE ORDER, AND THAT IT WAS OBLIGATED TO
NOTIFY THE UNION PRIOR TO IMPLEMENTATION SO THAT THE UNION WOULD HAVE
AMPLE OPPORTUNITY TO REQUEST BARGAINING. THE UNION CONTENDS THAT
RESPONDENT VIOLATED SECTION 19(A)(6) AND (1) OF THE ORDER BY FAILING TO
PROPERLY NOTIFY THE UNION OF THE IMPENDING CHANGE IN GROOMING STANDARDS,
AND BY REFUSING TO GRANT THE UNION'S AUGUST 22 REQUEST FOR A RESCISSION
OF THE AUGUST 15 CIRCULAR AND FOR NEGOTIATIONS ON THE MATTER.
TAKING THE UNION'S ARGUMENTS IN REVERSE ORDER, AND ASSUMING ARGUENDO
THAT PROPER NOTICE WAS GIVEN, I HAVE CONCLUDED THAT THE AUGUST 22
REQUEST FOR NEGOTIATIONS WAS UNTIMELY SINCE THE CIRCULAR WAS IMPLEMENTED
BY RESPONDENT PRIOR TO THAT DATE. IN THIS REGARD, THE CIRCULAR WAS
DATED AUGUST 15, 1977, AND NO OTHER "EFFECTIVE DATE" WAS MENTIONED. IN
ACCORDANCE WITH RESPONDENT'S CUSTOM AND PUBLISHED PROCEDURES, CIRCULARS
ARE EFFECTIVE WHEN ISSUED UNLESS OTHERWISE SPECIFIED. THE CIRCULAR IN
QUESTION WAS EFFECTIVE ON AUGUST 15. /7/
THE UNION CONTENDS THAT ITS AUGUST 22 REQUEST FOR BARGAINING WAS
TIMELY, ARGUING THAT THE STANDARDS WERE NOT IMPLEMENTED UNTIL AUGUST 26.
IN SUPPORT OF ITS CONTENTION, THE UNION RELIES UPON MEMORANDA DATED
AUGUST 18 AND 19, ISSUED IN ONE OF RESPONDENT'S DISTRICTS. IN THE FIRST
MEMORANDUM, THE PORT DIRECTOR STATED: "PLEASE SEE THAT UNIFORMS AND
GROOMING ARE IN CONFORMITY WITH CITED CIRCULAR NO LATER THAN 08/26/77."
HOWEVER, THE DOCUMENT DID NOT SET AUGUST 26 AS THE DATE FOR THE
COMMENCEMENT OF IMPLEMENTATION; UNIFORMED PERSONNEL WERE TO BEGIN
COMPLYING IMMEDIATELY AND FAILURE TO CONFORM AFTER AUGUST 26 WOULD
RESULT IN DISCIPLINARY ACTION. THIS CONSTRUCTION IS SUPPORTED BY THE
FINAL PARAGRAPH OF THE MEMORANDUM WHICH STATED THAT FEMALE INSPECTORS
SHOULD BE IN COMPLIANCE "AS SOON AS POSSIBLE ESPECIALLY IN REFERENCE TO
APPROPRIATE HEADWEAR." LIKEWISE, THE AUGUST 19 MEMORANDUM INSTRUCTED
INSPECTORS TO CONFORM "BY FRIDAY, AUGUST 26, 1977." HOWEVER, THE
MEMORANDUM ALSO REQUIRED THAT REQUESTS FOR EXCEPTIONS BE SUBMITTED
BEFORE THIS DATE. UNDER THE CIRCULAR, SUCH REQUESTS FOR EXCEPTIONS HAD
TO BE BASED UPON DOCUMENTED MEDICAL REASONS AND CERTIFIED BY A
PHYSICIAN. HERE AGAIN, IMMEDIATE ACTION WAS REQUIRED AND AUGUST 26 WAS
MERELY A DEADLINE FOR PURPOSES OF DISCIPLINARY ACTION. THUS IT IS CLEAR
THAT THE UNION'S AUGUST 22 REQUEST FOR NEGOTIATIONS WAS MADE AFTER THE
NEW GROOMING STANDARDS HAD BEEN IMPLEMENTED BY THE RESPONDENT.
THE NEXT ISSUE FOR CONSIDERATION IS WHETHER RESPONDENT APPROPRIATELY
DISCHARGED ITS OBLIGATION TO GIVE THE UNION ADEQUATE, TIMELY, AND
REASONABLE NOTICE PRIOR TO CHANGING THE GROOMING STANDARDS. THE NTEU
NATIONAL PRESIDENT HAD CLEARLY INSTRUCTED RESPONDENT'S REGIONAL
COMMISSIONER TO ADDRESS ALL SUCH NOTIFICATIONS TO THE GENERAL COUNSEL OF
NTEU, "1730 K STREET, N.W., SUITE 1101, WASHINGTON, D.C. 20006," AND
WARNED THAT "NOTIFICATION TO ANY OTHER INDIVIDUAL WILL NOT CONSTITUTE
NOTIFICATION TO NTEU." THESE INSTRUCTIONS, WHICH SPECIFY THE PRECISE ZIP
CODE, CLEARLY CONTEMPLATE THAT NOTIFICATION BE SENT BY MAIL. IN STRICT
COMPLIANCE WITH THESE INSTRUCTIONS, ON JULY 21, 1977, THE RESPONDENT
MAILED A LETTER TO THE GENERAL COUNSEL AT THE ABOVE ADDRESS, NOTIFYING
HIM OF RESPONDENT'S INTENTION TO ISSUE THE GROOMING STANDARDS CIRCULAR
ON OR ABOUT AUGUST 15, 1977. A COPY OF THE PROPOSED CIRCULAR WAS
ATTACHED TO THIS LETTER. AT THE HEARING, THE UNION QUESTIONED WHETHER
THIS LETTER HAD, IN FACT, BEEN DEPOSITED IN THE U.S. MAIL. RESPONDENT
ADDUCED EXTENSIVE EVIDENCE ON THIS POINT, AND I AM CONVINCED THAT THE
LETTER WAS MAILED ON JULY 21.
THE UNION'S NATIONAL FIELD REPRESENTATIVE, WHO WAS ALSO LOCATED AT
THE ABOVE ADDRESS, TESTIFIED THAT HE WAS RESPONSIBLE FOR UNION MATTERS
RELATING TO THE RESPONDENT'S EMPLOYEES AND THAT THE GENERAL COUNSEL
WOULD HAVE GIVEN THE LETTER TO HIM IF HE HAD RECEIVED IT. ALTHOUGH THE
GENERAL COUNSEL DID NOT TESTIFY AT THE HEARING, THE NATIONAL FIELD
REPRESENTATIVE STATED THAT NEITHER HE NOR THE GENERAL COUNSEL RECEIVED
THE LETTER. MEANWHILE, THE RESPONDENT DID NOT RECEIVE ANY REQUEST FROM
THE UNION TO NEGOTIATE WITH RESPECT TO THE PROPOSED GROOMING STANDARDS.
RESPONDENT ISSUED THE GROOMING STANDARDS CIRCULAR ON AUGUST 15, AND DID
NOT RECEIVE A REQUEST FOR NEGOTIATIONS UNTIL AUGUST 22, WHICH WAS AFTER
THE STANDARDS HAD BEEN IMPLEMENTED. THE JULY 21 LETTER WAS NEVER
RETURNED BY THE POST OFFICE, AND IT WAS NOT UNTIL AUGUST 22 THAT
RESPONDENT LEARNED OF THE UNION'S CONTENTION THAT THE LETTER HAD NOT
BEEN RECEIVED.
I MUST CONCLUDE AND HOLD THAT RESPONDENT DID NOT VIOLATE SECTION
19(A)(6) AND (1) OF THE EXECUTIVE ORDER. EVEN IF IT COULD BE PROVED
THAT THE JULY 21 LETTER WAS LOST IN THE U.S. POSTAL SYSTEM (AND NEVER
RECEIVED BY THE UNION), RESPONDENT CANNOT BE SAID TO HAVE COMMITTED AN
UNFAIR LABOR PRACTICE UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE.
RESPONDENT MAILED THE LETTER OF NOTIFICATION TO THE UNION IN ACCORDANCE
WITH THE UNION'S INSTRUCTIONS MORE THAN 3 WEEKS PRIOR TO IMPLEMENTING
THE CHANGE IN GROOMING STANDARDS. IF THE NTEU HAD NOT REQUIRED THAT
NOTIFICATION BE MAILED TO ITS REPRESENTATIVE IN WASHINGTON, D.C., THE
RESPONDENT WOULD HAVE BEEN FREE TO HAND-DELIVER THE NOTICE TO THE UNION
AT THE LOCAL LEVEL WITHIN THE BOSTON REGION. HOWEVER, SINCE THE LATTER
METHOD OF NOTICE WAS NOT ACCEPTABLE TO THE UNION, I HOLD THAT THE UNION
MUST BEAR THE RISK OF ANY LOSS THAT MIGHT HAVE OCCURRED IN THE U.S.
POSTAL SYSTEM. RESPONDENT'S GOOD FAITH EFFORT TO COMPLY WITH THE
UNION'S TERMS FOR NOTIFICATION CANNOT FAIRLY BE EQUATED WITH A FAILURE
TO MAKE TIMELY AND REASONABLE NOTIFICATION. HAVING COMPLIED WITH THESE
TERMS, WHICH WERE REASONABLY CALCULATED TO NOTIFY THE UNION, RESPONDENT
HAD NO OBLIGATION TO BARGAIN WITH RESPECT TO THE AUGUST 15 GROOMING
STANDARDS AFTER THEY HAD BEEN IMPLEMENTED THROUGHOUT REGION I.
ACCORDINGLY, THIS ASPECT OF THE COMPLAINT SHOULD BE DISMISSED. /8/
RECOMMENDATION
UPON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
LAW AND PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED,
AND SECTION 203.26(B) OF THE RULES AND REGULATIONS, I RECOMMEND THAT THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS ADOPT THE
FOLLOWING ORDER DESIGNED TO EFFECTUATE THE POLICIES OF THE ORDER.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER 11491, AS AMENDED,
AND SECTION 203.26(B) OF THE RULES AND REGULATIONS, THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT
THE
DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, REGION I, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY INSTITUTING CHANGES WITH RESPECT TO SHIFT TRADING BY
ITS EMPLOYEES WITHOUT
PROVIDING NOTICE TO, AND, UPON REQUEST, MEETING AND CONFERRING WITH
THE NATIONAL TREASURY
EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OR
ANY OTHER EXCLUSIVE
REPRESENTATIVE; AND
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, FOR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) RESCIND AND REVOKE THE TERMS AND CONDITIONS OF EMPLOYMENT SET
FORTH IN ITS MEMORANDUM
OF AUGUST 15, 1977, PERTAINING TO THE CIRCUMSTANCES UNDER WHICH SHIFT
TRADING WOULD BE
PERMITTED, AND ANY SUBSEQUENT MEMORANDA ISSUED TO EFFECTUATE THOSE
TERMS AND CONDITIONS.
(B) NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION OF ANY INTENDED
CHANGE IN THE PRACTICE OF
SHIFT TRADING, AND, UPON REQUEST, MEET AND CONFER IN GOOD FAITH ON
SUCH INTENDED CHANGE.
(C) POST AT ITS FACILITIES IN THE OGDENSBERG DISTRICT COPIES OF THE
ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
REGIONAL COMMISSIONER,
REGION I, U.S. CUSTOMS SERVICE, DEPARTMENT OF THE TREASURY, AND THEY
SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE U.S.
CUSTOMS SERVICE, REGION I,
DEPARTMENT OF THE TREASURY, SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN
WRITING WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY
HEREWITH.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATED: NOVEMBER 15, 1978
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE CHANGES WITH RESPECT TO THE PRACTICE OF SHIFT
TRADING AND ANY OTHER TERMS AND CONDITIONS OF EMPLOYMENT, WITHOUT FIRST
NOTIFYING AND, UPON REQUEST, MEETING AND CONFERRING WITH THE NATIONAL
TREASURY EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF OUR UNIT
EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL RESCIND AND REVOKE THE TERMS AND CONDITIONS OF EMPLOYMENT SET
FORTH IN OUR MEMORANDUM OF AUGUST 15, 1977, CONCERNING THE CIRCUMSTANCES
UNDER WHICH SHIFT TRADING WILL BE PERMITTED, AND ANY SUBSEQUENT
MEMORANDA ISSUED TO EFFECTUATE IT.
WE WILL, UPON REQUEST, MEET AND CONFER WITH THE NATIONAL TREASURY
EMPLOYEES UNION, WITH RESPECT TO ANY PROPOSED CHANGES RELATING TO THE
PRACTICE OF SHIFT TRADING AND ANY OTHER TERMS AND CONDITIONS OF
EMPLOYMENT.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS: SUITE 3515, 1515
BROADWAY, NEW YORK, NEW YORK 10036.
/1/ IN REACHING OUR CONCLUSION THAT ISSUANCE OF THE NEW GROOMING
STANDARDS DID NOT VIOLATE THE ORDER, IT IS NOTED THAT THE RESPONDENT DID
ALL THAT COULD REASONABLY BE EXPECTED IN ORDER TO PROVIDE ADEQUATE,
TIMELY NOTICE OF THE PROPOSED NEW STANDARDS TO THE UNION. THUS, IT
PRECISELY FOLLOWED THE UNION'S INSTRUCTIONS AND THE PAST PRACTICE
BETWEEN THE PARTIES, IN TIMELY MAILING NOTICE OF THE PROPOSED CHANGE TO
THE UNION'S DESIGNATED OFFICIAL IN WASHINGTON, D.C.
/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/3/ RESPONDENT STATED ON BRIEF THAT HE NEVER RECEIVED A COPY OF
COMPLAINANT'S EXHIBIT 9. THE UNDERSIGNED SENT HIM A COPY AND RESPONDENT
DID NOT SUBSEQUENTLY OBJECT TO THE EXHIBIT.
/4/ RESPONDENT'S MOTION TO CORRECT PAGE 134, LINE 2, OF THE
TRANSCRIPT TO READ "NO" INSTEAD OF "YES" IS GRANTED.
/5/ ALTHOUGH MANY OF THESE REQUESTS WERE GRANTED WHERE NO EMERGENCY
EXISTED, THE LARGE DECREASE IN REQUESTS FOR SHIFT TRADING AFTER AUGUST
15, COUPLED WITH THE TESTIMONY THAT THE PORT DIRECTORS "ALMOST STOPPED"
SUCH TRADING, PROVES THAT THE SUPERVISORS IMPLEMENTED THE NEW POLICY AND
DISCOURAGED THE OLD PRACTICE TO A SIGNIFICANT EXTENT.
/6/ IT SHOULD ALSO BE NOTED THAT THE SEPTEMBER 30, 1976, "PROPOSAL"
WOULD HAVE PERMITTED SHIFT TRADING IN "SITUATIONS INVOLVING A CLEARLY
JUSTIFIABLE NEED" IN ADDITION TO EMERGENCIES; AS SUCH, EVEN IF THIS
PROPOSAL HAD BEEN ESTABLISHED AS A POLICY IN 1976, THE MORE RESTRICTIVE
"EMERGENCY ONLY" STANDARD OF THE AUGUST 15, 1977, MEMORANDUM WOULD STILL
HAVE CONSTITUTED A CHANGE IN WORKING CONDITIONS.
/7/ ALTHOUGH A LITERAL READING OF THE COMPLAINT INDICATES THAT AUGUST
15 WAS THE IMPLEMENTATION DATE, THE UNION CONTENDED AT THE HEARING THAT
THE CIRCULAR WAS NOT IMPLEMENTED UNTIL AUGUST 26. SINCE RESPONDENT DID
NOT CLAIM SURPRISE, HE APPARENTLY CONCEDES THAT THE COMPLAINT SHOULD BE
BROADLY CONSTRUED TO COMPREHEND THE ISSUE CONCERNING THE DATE OF
IMPLEMENTATION.
/8/ IT IS WELL SETTLED THAT A LETTER DEPOSITED IN THE U.S. MAIL
SYSTEM IS PRESUMED TO HAVE BEEN DELIVERED TO THE ADDRESSEE. HOWEVER, IN
VIEW OF MY CONCLUSIONS HEREIN, I NEED NOT DECIDE WHETHER THE UNION
REBUTTED THE PRESUMPTION THAT IT RECEIVED THE JULY 21 LETTER.