[ v10 p566 ]
The decision of the Authority follows:
10 FLRA No. 100 DEPARTMENT OF THE TREASURY UNITED STATES CUSTOMS SERVICE REGION I, BOSTON, MASSACHUSETTS, AND ST. ALBANS, VERMONT DISTRICT OFFICE Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 142 Charging Party Case No. 1-CA-547 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the Charging Party and the General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the General Counsel's exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations. The complaint herein, amended at the hearing, alleged a violation of section 7116(a)(1) and (5) of the Statute based upon the Respondent's change in the starting and quitting times of an existing shift at its St. Albans, Vermont, District Office without furnishing the Charging Party an opportunity to bargain over the change and/or its impact and implementation. The Judge found that the decision to change the starting and quitting times of the existing shift constituted a negotiable matter under the Statute, but that the Charging Party had waived its right to negotiate over the Respondent's decision to effect the change by limiting its bargaining request to impact and implementation. In so finding, the Judge relied on record testimony and the language of the bargaining request itself to conclude that the Charging Party had clearly and unmistakably waived its right to bargain over an otherwise negotiable matter. Having found that the bargaining obligation was limited to impact and implementation, and noting that the Respondent and the Charging Party had agreed to negotiate subsequent to the actual implementation of the shift change, the Judge concluded that there was no basis on which to find that the Respondent had implemented the change without first having provided the Charging Party an opportunity to bargain. With regard to the Judge's finding that the Charging Party had waived its right to negotiate over the decision to effect the change in the starting and quitting times of an existing shift, the Authority has previously determined that certain rights under the Statute can be waived so long as the waiver is clear and unmistakable. See Nuclear Regulatory Commission, 8 FLRA No. 124 (1982), and cases cited therein. In the particular circumstances of this case, the Authority adopts the Judge's finding that the Charging Party clearly and unmistakably waived its right to negotiate over the Respondent's decision to effect the change. With respect to that portion of the complaint alleging a failure to bargain over impact and implementation, the Authority adopts the Judge's finding that there was no evidence to indicate that the Respondent had refused to bargain prior to implementing the change. As to any bargaining obligation which may have existed after the change was implemented, the Authority further adopts the Judge's finding that the Respondent solicited bargaining proposals from the Charging Party even after the change had been implemented and, therefore, there was no evidence to indicate that the Respondent had acted in derogation of its bargaining obligation in this regard. ORDER /1A/ IT IS HEREBY ORDERED that the complaint in Case No. 1-CA-547 be, and it hereby is, dismissed. issued, Washington, D.C., December 3, 1982 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Martin J. Ward, Esquire For the Respondent Richard D. Zaiger, Esquire Daniel F. Sutton, Esquire For the General Counsel William Milton, Esquire For the Charging Party Before: LOUIS SCALZO Administrative Law Judge DECISION Statement of the Case This case arose as an unfair labor practice proceeding under the provisions of the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called the "Statute"), and the Rules and Regulations issued thereunder. The complaint as amended at the hearing alleges that the Department of the Treasury, United States Customs Service, Region 1, Boston, Massachusetts, and St Albans, Vermont, District Office (Respondent) violated Sections 7116(a)(1) and (5) of the Statute by unilaterally changing existing conditions of employment at its St. Albans, Vermont District Office on October 27, 1980, "without furnishing the National Treasury Employees Union or National Treasury Employees Union Chapter 142 (NTEU, Union or Charging Party) with an opportunity to bargain concerning said change and/or the impact and implementation of said change." The record presented no factual issue concerning implementation of the change by the Respondent. The parties stipulated that it involved the substitution on October 27, 1980, of a 7:00 a.m. to 3:00 p.m. shift for a prior 8:00 a.m. to 4:00 p.m. shift. The new work schedule was established for a Customs inspector assigned to perform duties on Monday through Saturday in connection with the arrival in St. Albans of "The Montrealer," an Amtrak train operating between Washington, D.C. and Montreal, Canada. For several years a Customs inspector from the Port of Highgate Springs, Vermont, located within the Respondent's St. Albans, Vermont District Office, has been assigned to provide daily Customs service at St. Albans for this northbound Amtrak train. These services are provided on a regular basis on Monday through Saturday, and on overtime on Sundays and holidays. The inspector assigned to perform this duty reports to Respondent's facility at the Port of Highgate Springs at the beginning of the shift and is informed of the train's arrival time by a supervisor. The inspector then drives to St. Albans in a government vehicle. Upon completion of inspectional duties in St. Albans the inspector returns to Highgate Springs to work the remainder of the eight hour shift. The entire process generally takes one to two hours. Occasionally it is unnecessary for the assigned inspector to travel to St. Albans, as sometimes another inspector assigned to work in St. Albans is available to meet the northbound "Montrealer." Prior to the change involved the Customs inspector given this duty would have been assigned a regular 8:00 a.m. to 4:00 p.m. daytime shift. The parties stipulated that the change in duty hours necessitated by revision of the Sunday and holiday schedule of the train comprised no part of the unilateral change alleged in the complaint. Counsel for the Respondent argues that the Respondent was not obligated to bargain concerning the decision to establish the 7:00 a.m. to 3:00 p.m. shift, that the Union waived the right to pre-implementation impact and implementationbargaining; that the Union did not completely perfect its right to bargain on impact and implementation by supplying written proposals in accordance with the terms of the collective bargaining agreement; that Respondent's cancellation of a post-implementation meeting scheduled by the parties for the purpose of negotiating impact and implementation did not constitute a refusal to bargain; that the case essentially involves issues relating to contract interpretation which should be resolved through the parties' grievance and arbitration procedure; and that counsel for the General Counsel has not met its burden of establishing violations of Sections 7116(a)(1) and (5) of the Statute. The parties were represented by counsel during the hearing, and were afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Helpful post-hearing briefs were received from counsel representing the parties. These have been duly considered. Based upon the entire record herein, including my observations of the witnesses and their demeanor, the exhibits and other relevant evidence adduced at the hearing, /1/ and the briefs, I make the following findings of fact, conclusions and recommendation. Findings of Fact Stipulated Facts The following facts stipulated by the parties, are accepted as true: 1. The charge in this proceeding was filed with the Federal Labor Relations Authority by the Union on November 10, 1980, and a copy thereof was served on Respondent on November 12, 1980. (Tr. 11-12) 2. The NTEU is the exclusive bargaining representative of a bargaining unit which includes all non-professional employees at Respondent's St. Albans, Vermont District Office excluding all professional employees, management officials, employees engaged in federal personnel work in other than a purely clerical capacity, confidential employees, guards, and supervisors as defined in the Act. (Tr. 12). 3. The change in the starting and finishing times of the 2H shift was implemented on Monday, October 27, 1980, at 7:00 a.m. (Tr. 13). 4. Jt. Exh. 1, a collective bargaining agreement between NTEU and the United States Customs Service has been in effect since July 1, 1980. (Tr. 13-14). /2/ Respondent Notifies NTEU of Impending Change in Tour of Duty On Saturday, October 18, 1980, a letter dated October 16, 1980, from L. D. Magnan, District Supervisor, Amtrak, was delivered to the office of Robert Sullivan, Port Director, Highgate Springs, Vermont. (Tr. 121). The letter informed that the weekday "Montrealer" would, as of October 27, 1980, arrive in St. Albans, Vermont at 7:35 a.m. The letter and accompanying train schedule change were brought to Mr. Sullivan's attention on Monday, October 20, 1980, during a telephone conversation that Mr. Sullivan had with Mr. R. K. Cyr, Acting Port Director. (Tr. 128-129). Mr. Sullivan was then temporarily performing duties in St. Albans, Vermont. Mr. Cyr was instructed to send the information relating to the schedule change to Mr. Glen M. Gurwit, President of Chapter 142 of NTEU (Tr. 123), as Mr. Sullivan was aware that the schedule change would involve a shift change. (Tr. 130). On the same date, October 20th, Mr. Cyr personally hand delivered a letter to Mr. Gurwit concerning the change. (Tr. 32). The letter and enclosures described the change in the Amtrak weekday schedule (2H shift), and advised that the weekday 2H shift would become a 7:00 a.m. to 3:00 p.m. shift on October 27, 1980. (G.C. Exh. 2). The letter to Mr. Gurwit reflected the statement that the notification was being made "in accordance with Article 21, Section 10 of the contract." Article 21, Section 10 provided: Section 10. When the employer finds it necessary to change the hours of work, shifts, or tours of duty for an organization al segment, location or work group, the union shall be provided with advance notice and an opportunity to bargain over the substance, implementation, or impact of such change as appropriate. (Jt. Exh. 1 at page 131). Mr. Gurwit advised Mr. Cyr that he was surprised by the short period of time between the date of notice of the change and the implementation date, and that he would "probably have to pursue it further with the Union." (Tr. 33). On the same date or the day after, Mr. Gurwit discussed the issue with Mr. Bill Milton of NTEU, and was advised that he should make a request to bargain concerning impact and implementation of the shift change. (Tr. 71-72). On June 23, 1980, Mr. Gurwit conferred with Mr. Michael Banas, Vice President and Chief Steward; and Mr. John Wilda, a Union Steward. (Tr. 34-35). They decided that it was an important issue, that NTEU should submit a written "request to negotiate both the impact and implementation of the . . . change," and that Mr. Gurwit should prepare the request. (Tr. 35-36). Mr. Gurwit acknowledged that their determination to request negotiations did not then contemplate a request to negotiate concerning the Respondent's decision to effect a change. (Tr. 74). NTEU Bargaining Request Between 7:00 p.m. and 10:00 p.m. on Thursday, October 23, 1980, Mr. Gurwit prepared a bargaining request. (Tr. 36, G.C. Exh. 3). His testimony established that the request, drafted in letter form, was for the purpose of effecting negotiations concerning "the effects that this change was going to have on the work force at Highgate Springs." (Tr. 38). At another point he stated, "my intention was to sit down and to discuss the change and the effect that it would have on the bargaining unit." (Tr. 99-100). Mr. Gurwit gave the letter to Mr. Banas and asked him to deliver it to Mr. Sullivan or Mr. Cyr on October 24th, the next day. (Tr. 36-37). The letter, dated October 24, 1980, stated the following: NTEU requests to negotiate and discuss the implementation of your proposed hours-of-work and schedule changes, as well as to discuss and negotiate the impact said changes will have on the employees who will be affected. This is in accordance with Article 21, Section 10 of the National Agreement. (G.C. Exh. 3). /3/ The NTEU request to bargain did not include proposals, nor any indication of NTEU's preferences as to a date when negotiations might occur. Section 4 of Article 37 provided the following procedure concerning the submission of proposals in connection with impact and implementation bargaining: Section 4. If the Union wishes to negotiate concerning the implementation or impact on employees of the proposed change(s), the union will submit written proposals to the employer within a reasonable period after notification of the proposed change(s). The union agrees that any proposals submitted in the context of impact bargaining will be related to the proposed change(s) and will not deal with extraneous matters. Negotiations will normally begin within seven (7) calendar days after receipt by the employer of the union's proposals. (Jt. Exh. 1 at page 219-220). Counsel for the Respondent argues that the Union's limited request for impact and implementation bargaining under Section 10 of Article 21 was consistent with the provisions of Section 2, Article 21 of the agreement. The latter provision provides: Section 2. For employees engaged in inspectional activities, law enforcement activities, and their required support personnel (normally those employees working under the jurisdiction of the Office of Border Operations), the employer shall establish, maintain, and change those shifts, tours of duty and hours of work to best promote the efficient and effective accomplishment of the mission and operations of the Service. It was contended that in the limited area involving employees engaged in inspectional and law enforcement activities, such as are involved here, the parties agreed to give Respondent the right to establish and change shifts, tours of duty, and hours of work; and that Sections 2 and 10 operate to relieve the Respondent of the obligation to bargain concerning such decisions. Respondent's Reply to NTEU Bargaining Request On October 24, 1980, Mr. Sullivan received Mr. Gurwit's bargaining request. On the same date he phoned Mr. Gurwit shortly after Mr. Gurwit reported for work at 4:00 p.m. (Tr. 41). Mr. Sullivan acknowledged receipt of the bargaining request, agreed "to get together . . . to discuss the change," /4/ and asked Mr. Gurwit, when the meeting should take place. (Tr. 41). Mr. Gurwit orally expressed the intention to bargain as soon as possible (Tr. 41), but said that he wanted Mr. Banas and Mr. Wilda to attend. (Tr. 124). Both Mr. Gurwit and Mr. Sullivan wanted the meeting to occur when they and Mr. Banas, and Mr. Wilda, could be available without having to summon someone in solely because of the meeting. (Tr. 124). They agreed to meet at 4:00 p.m. on October 27, 1980, or after implementation of the shift change. (Tr. 42, 126-127). /5/ Mr. Gurwit's testimony clearly established that the date and time was established by mutual agreement. (Tr. 55, 74). He stated: (We) decided that the earliest possibly (sic) time and date for a meeting would be the following Monday . . . October 27th. (Tr. 41). At another point he said: I also wanted John Wilda and Michael Banas to be able to attend the meeting since they had discussed the change with me. So Mr. Sullivan and I agreed that the soonest possible time and date would be the following Monday early in the afternoon. . . . . Yes, Mr. Sullivan and I agreed that we would have a meeting at 4:00 o'clock Monday afternoon, October 27th. (Tr. 42). Evidence Relating to Alleged NTEU Request for Postponement of Shift Change Mr. Gurwit testified that after reaching the agreement outlined he said that it was unfortunate that they could not meet until after the shift change was scheduled to go into effect, and that he asked Mr. Sullivan if implementation could be deferred until after the meeting. (Tr. 42-43). According to Mr. Gurwit, Mr. Sullivan said, "I'm very sorry, I wish it could be otherwise, but the railroad didn't give me enough warning, and so we can't inconvenience AMTRAK; we'll just have to let the shift change go as it is." (Tr. 43). Mr. Gurwit then related that he said, "If that's the way it's got to be, well, we'll just have to talk about it on Monday." (Tr. 43). Mr. Sullivan could not recall any NTEU request relating to the October 27th meeting, and stated that he received no specific proposals in connection with the proposed shift change. (Tr. 127). It did appear that the Respondent could have assigned personnel on an overtime basis to meet "The Montrealer," without effectuating a shift change on October 27th. (Tr. 129). Although the prospect of a delay in implementation involved the possibility of operational problems (Tr. 131-132), the cost of overtime would not have been assessed against the Respondent. (Tr. 132). The period elapsing between the October 24, 1980 Gurwit-Sullivan telephone conversation and implementation on Sunday morning, October 27th, was not utilized by the parties because of agreement to meet on October 27th at 4:00 p.m. It was clear that time to meet was available, and that the negotiations would not have posed any special problem. Mr. Gurwit was "quite familiar" with work schedules pertaining to the Port of Highgate Springs, and as President of the Union, he had access to Customs inspector work schedules (Tr. 20). Also, there had been prior changes of the same shift. In October or November of 1976 the Respondent had effectuated a change to the 7:00 a.m. to 3:00 p.m. shift, or a change identical to the one involved here. (Tr. 25-26). Subsequently, in March of 1980, the 7:00 a.m. to 3:00 p.m. shift was eliminated and replaced with the 8:00 a.m. to 4:00 p.m. shift, the one in place just prior to the change effectuated in this case. Mr. Gurwit, Mr. Banas, and Mr. Wilda participated in discussions with Respondent at the time of the March 1980 change. (Tr. 67). The objective of the Union at that time was to eliminate shifts involving a single employee as it interfered with carpooling. (Tr. 27). However, at the time of the March 1980 change, "The Montrealer" had been arriving in St. Albans at about 8:30 a.m., thus it was possible for the Customs inspector involved to be assigned to a regular daytime 8:00 a.m. to 4:00 p.m. shift. (Tr. 28). As in the past NTEU wished to avoid the creation of a new 7:00 a.m. to 3:00 p.m. shift for a single employee because the individual assigned would be inconvenienced in connection with carpooling. (Tr. 27). In fact the Charging Party established through Mr. Banas that the change would have operated to cause him to drive his own car rather than participate in a carpool, and that this element was deemed objectionable. (Tr. 102). Facts Relating to Cancellation of October 27, 1980 Meeting On October 27, 1980, at about 2:30 p.m. Mr. Gurwit phoned Mr. Sullivan and confirmed plans relating to the 4:00 p.m. meeting. (Tr. 45-46). Mr. Sullivan advised Mr. Gurwit that he and Mr. Cyr would be representing the Respondent. (Tr. 45). Mr. Sullivan thereafter had a conversation with Mr. John Casassa, a Labor Relations Specialist assigned to the Respondent's Boston Regional Office. (Tr. 103-104). Mr. Sullivan explained the purpose of the scheduled meeting (Tr. 104), and Mr. Casassa inquired whether the Union had submitted written proposals in accordance with the provisions of the collective bargaining agreement. (Tr. 104, 127-128). Mr. Sullivan was not aware that written proposals might be required (Tr. 133), and informed Mr. Casassa that written proposals had not been received. (Tr. 104, 127-128, 133). Because written proposals had not been received, Mr. Sullivan was instructed to cancel the scheduled meeting, and advise NTEU that Mr. Casassa's office would handle the matter. (Tr. 104). Mr. Casassa also instructed Mr. Sullivan that because of the absence of written proposals, he should inform Mr. Gurwit that, "we are not prepared to meet at this time." (Tr. 128) At 3:15 p.m. Mr. Sullivan phoned Mr. Gurwit at home and said that he was sorry, but that he had received instructions to cancel the meeting, that the Boston Regional Office wished to be involved, and that Customs was not then prepared to discuss the shift change issue. (Tr. 47, 128). /6/ Respondent's Request for Proposals By letter dated October 30, 1980, Mr. T. A. Gleason, Director, of Respondent's Labor Relations Office in the Boston Regional Office, wrote to Mr. Gurwit to request "any proposals you have relative to the work shifts necessitated by the AMTRAK schedule change as required by Article 37, Section 4 of the National Agreement . . . ." (R. Exh. 2). /7/ By letter dated November 10, 1980 Mr. Gurwit responded to Mr. Gleason's October 30, 1980 letter with proposals, noting that they were being forwarded in accordance with Article 37, Sections 4 and 6 of the collective bargaining agreement. /8/ It was proposed that the 2H, 8:00 a.m. to 4:00 p.m. shift be retained as in the past; that a prior practice of utilizing a Customs inspector occasionally available in St. Albans be continued; and that a Customs inspector be specially assigned on an overtime basis from the daytime 8:00 a.m. to 4:00 p.m. shift to inspect "The Montrealer" before 8:00 a.m., on occasions when the Customs inspector working in St. Albans would be otherwise unavailable. By letter dated December 2, 1980, Mr. T. A. Gleason, responded to Mr. Gurwit's November 10, 1980 proposals and took the position that the Union's proposals were not negotiable. (R. Exh. 4). Discussion and Conclusions Section 7106(b)(1) of the Statute provides in pertinent part, that: (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organization subdivision, work project, or tour of duty . . . . If the establishment of an additional tour of duty directly relates to the numbers, types, or grades of employees assigned to the new tour of duty, the obligation to meet and confer with the Union concerning the decision to establish the new tour of duty, would come within the sole discretion and election of the agency and would therefore not be a negotiable matter. However, if the number of employees assigned to the tour of duty, the type or grade of such employees, and the number of positions remains the same as before the change, the establishment of the new tour of duty cannot be treated as a matter negotiable only at the election of the agency. National Treasury Employees Union Chapter 66, 1 FLRA No. 106 (September 13, 1979); American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals, 5 FLRA No. 66 (April 29, 1981); Internal Revenue Service and Brookhaven Service Center, 5 FLRA No. 64 (April 21, 1981). In the instant case it was shown that the establishment of the 7:00 a.m. to 3:00 p.m. shift did not explicitly relate to the numbers, types, and grades of employees assigned so as to come within the meaning of Section 7106(b)(1) of the Statute. For this reason the decision to establish the new shift would have been, in the absence of evidence of any waiver, fully negotiable as of the time the Respondent's proposal was first received by NTEU on October 20, 1980. Following receipt of the proposal, the NTEU decided specifically to limit its October 24, 1980 bargaining request to impact and implementation bargaining after two Union strategy meetings relating to the subject. The record indicates no uncertainty in this area. The NTEU clearly and cogently sought and requested impact and implementation bargaining only. /9/ It is unnecessary to dwell upon this element and the obvious differences in approach which might be associated with Respondent's pre-negotiation preparations for decision bargaining as distinct from more limited impact and implementation bargaining; nor is it necessary to speculate concerning the mischief which would be generated by a holding to the effect that impact and implementation bargaining requests impliedly incorporate requests to bargain concerning the formulation of decisions which change the terms and conditions of employment. This is not a case where the Union requested bargaining in general terms, nor one where a request for decision bargaining may be inferred from the facts. Here, the Union agreed to complete impact and implementation bargaining after implementation of the decision. In order to establish the waiver of any right under the statute the waiver must be clear and unmistakable. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2 (January 15, 1981); Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA No. 82 (June 27, 1980). Such waivers are not to be lightly inferred. Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA No. 82 (November 12, 1980). However, in this case the evidence established that the Union clearly and unmistakably waived any right that it had to bargain concerning the decision to establish the 7:00 a.m. to 3:00 p.m. shift. The bargaining obligation having been established, the basic factual issue posed for resolution revolves about the question of whether the Respondent changed the hours of the 8:00 a.m. to 4:00 p.m. shift to 7:00 a.m. to 3:00 p.m. without providing the Union with a pre-implementation opportunity to bargain concerning impact and implementation of the change (G.C. Exh. 1-C, General Counsel's Brief at 2 and 6). The factual picture presented precludes a finding that the Respondent effectuated the change without first providing the NTEU an opportunity to bargain to the extent required and requested. Instead, the record shows that the Union agreed to participate in impact and implementation negotiations after the Respondent instituted the shift change. The October 24th bargaining request received did not ask for additional time, but merely requested impact and implementation bargaining. Upon receipt of the request Mr. Sullivan phoned to ask Mr. Gurwit when the parties should meet. The parties thereafter agreed to meet at 4:00 p.m. on October 27, 1980, after implementation of the shift change at 7:00 a.m. on October 27, 1980. In effect the Union acquiesced in light of the Amtrak schedule change. This agreement operates to preclude a finding that the Respondent implemented the change without providing an opportunity to bargain prior to implementation. Assuming that the Respondent was specifically requested to postpone implementation, and that Respondent refused to do so, it cannot be said that such a refusal would have been unreasonable in the light of facts presented. The Union received six days notice of the change. The record clearly established that the Respondent acted diligently to provide such notice as soon as possible after receiving information from Amtrak that the train schedule would be changed. The matter involved was not complex, and there was no indication that additional time was needed to prepare proposals relating to impact and implementation. The parties had discussed similar shift changes in the past and Mr. Gurwit and other Union officials were quite familiar with the issues involved. Evidence introduced at the hearing established that the Union was merely concerned with the prospect of an impact on the carpooling arrangements of the employee assigned to the new shift. In the context outlined the six day notice provided was adequate to permit the Union to bargain effectively. See U.S. Department of the Air Force, 47th Air Base Group (ATC), Laughlin Air Force Base, Texas, 4 FLRA No. 65 (September 30, 1980). In addition to the considerations set out, it is also noted that testimony introduced for the purpose of showing a refusal on the part of Mr. Sullivan to defer implementation was not credited. Careful consideration of the evidence indicates that it is unlikely that such a discussion occurred; or that if the discussion occurred, that it had the meaning and significance which Mr. Gurwit described. /10/ Mr. Sullivan's prompt response to the Union's bargaining request, his inquiry as to when negotiations should occur, and Mr. Gurwit's strong statements indicating his full agreement with the time and date of the meeting all indicate the absence of bad faith bargaining on Mr. Sullivan's part, and tend to negate any inference of unreasonable refusal to provide additional time in which to bargain prior to implementation, or to extend the date of implementation. Mr. Sullivan acknowledged that the October 27, 1980 shift change could have been covered on an overtime basis rather than implementing the shift change scheduled; admitted that someone could have been assigned to meet the train; and noted that Amtrak would not have been inconvenienced in any event. With this background it is not believable that Mr. Sullivan would have taken the implacable position described by Mr. Gurwit. In connection with the resolution of this factual issue, Mr. Gurwit's demeanor and credibility in other areas of interest were given consideration. These also persuaded that his version of conversation with Mr. Sullivan should not be credited insofar as it pertained to an alleged refusal to defer implementation of the shift change. Mr. Gurwit testified that he received no assistance in preparing the bargaining request; however, his testimony established that the content of the bargaining request was developed after conferring with Mr. Milton of NTEU, and after meeting with Mr. Banas and Mr. Wilda of Chapter 142. Mr. Gurwit's testimony concerning the conversation with Mr. Milton was vague and evasive, and in conflict with a prior written statement provided to the authority during investigation of the case. Lastly, he was a vague and reluctant witness during other facets of cross-examination. Although a failure to bargain after implementation is not specifically alleged in the complaint, and not raised as an issue by counsel representing the General Counsel (G.C. Exh. 1-C, General Counsel's Brief at 6), it is observed that the Respondent did not refuse to bargain with the Union after implementation. The record shows that the Respondent solicited proposals in accordance with the provisions of Section 4, Article 37 of the collective bargaining agreement. However, proposals received from the Union related solely to the Respondent's decision to effect a shift change. Such proposals would have had the effect of negating or reversing management's decision itself, and therefore would not constitute proposals relating to the impact and implementation of the decision. /11/ Under the circumstances presented here Respondent had no obligation to bargain concerning such proposals. American Federation of Government Employees, AFL-CIO, Local 3805, 5 FLRA No. 94 (May 28, 1981). In concluding it is observed that the essence of the unfair labor practice complaint involved in this case concerns differing and arguable interpretations of the parties' collective bargaining agreement, as distinguished from a clear and patent breach of the agreement. That is, the issues merely pose matters of contract interpretation. The proper forum for the resolution of such disputes rests in the grievance and arbitration procedures adopted by the parties and not the unfair labor practice procedures. Social Security Administration, District Offices in Denver, Pueblo and Greeley, Colorado, et al., 3 FLRA No. 10 (April 14, 1980); U.S. Patent and Trademark Office, 3 FLRA No. 123 (July 31, 1980); Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA No. 82 (June 27, 1980); United States Army Aviation Center, Fort Rucker, Alabama, 1 FLRA No. 98 (August 15, 1979); Department of Health, Education and Welfare, Social Security Administration, 1 FLRA No. 37 (May 9, 1979). The Respondent relies heavily upon interpretations to be given to Sections 2 and 10 of Article 21, and Section 4 of Article 37, of the collective bargaining agreement. Sections 2 and 10 of Article 21 arguably could be construed as relieving the Respondent of the obligation to bargain concerning the decision to create a new 7:00 a.m. to 3:00 p.m. shift. Thus, an alleged refusal to bargain concerning the decision to establish the new shift would necessarily involve an interpretation of Sections 2 and 10. Section 4 of Article 37 operates to require the Union to submit written impact and implementation proposals to the Respondent within a reasonable period after notification of any proposed change. It is admitted that this was not done, and there is no evidence that the Respondent specifically waived this prerequisite. Arguably at least, Section 4 could be interpreted as providing a basis for excusing the Respondent from bargaining on impact and implementation until the Union complied with Section 4 of Article 37. /12/ Upon the basis of the foregoing, it is recommended that the Authority issue the following Order pursuant to 5 C.F.R. 2423.29(c). ORDER IT IS HEREBY ORDERED that the complaint in Case No. 1-CA-547, be, and it hereby is, dismissed. LOUIS SCALZO Administrative Law Judge Dated: July 23, 1981 Washington, D.C. /1A/ In view of the above, it is not necessary to decide the Respondent's motion that the Authority take cognizance of an arbitration award rendered in a separate proceeding between the U.S. Customs Service, Region 5 and the National Treasury Employees Union purportedly dealing with relevant issues of contract interpretation. --------------- FOOTNOTES$ --------------- /1/ Counsel for the General Counsel moved to correct the transcript as follows: Page Line Change To 32 4 "Glan" "Glen" 34 6 "of" "on" 37 9 "supervisor" "Supervisory" 37 21 "work" "working" 41 22 "possibly" "possible" 84 16 "protective" "protected" Under authority provided in Section 2423.19(r) of the Regulations, 5 C.F.R. 2423.19(r), the motion to correct is granted. /2/ Certain segments of the agreement, not relevant here, were identified by the parties as being inoperative because of a pending negotiability appeal. (Tr. 13-14). /3/ Mr. Gurwit testified that he received no assistance in preparing the bargaining request. (Tr. 37). However, his testimony, reflected that he received counseling from Mr. Milton of NTEU, and from Mr. Banas and Mr. Wilda, officers of Chapter 142. The letter prepared conformed to the advice received from Mr. Milton, and was otherwise consonant with the approach agreed upon by Mr. Gurwit, Mr. Banas, and Mr. Wilda. /4/ In light of Mr. Gurwit's and Mr. Sullivan's reference to Section 10 Article 21, of the collective bargaining agreement, it must be concluded that Mr. Sullivan agreed to bargain only to the extent requested by Mr. Gurwit in the October 24, 1980 bargaining request. /5/ Mr. Sullivan was scheduled to be available until 5:00 p.m., on October 27th. Mr. Banas and Mr. Wilda were scheduled to report for work at 4:00 p.m. Mr. Gurwit planned to make special arrangements to attend the meeting. (Tr. 127). /6/ The Respondent's Boston Regional Office took the position that bargaining authority had been delegated to the Labor Relations Office in the Boston Regional Office by the Regional Commissioner, and further that it had not been sub-delegated to lower organizational levels. (Tr. 108-109). However, the only issue that concerned the Respondent at the time of the Casassa-Sullivan telephone conversation was the absence of written proposals. (Tr. 109-110). /7/ Mr. Casassa's testimony established that at the time of the October 30, 1980 request for proposals, he was not aware of the Union's charge in this case. (Tr. 104). It is here noted that the charge was dated October 30, 1980, and that the parties stipulated that it was not filed with the Authority until November 10, 1980, and not served on the Respondent until November 12, 1980. /8/ Section 6, insofar as pertinent here, provided for the place where negotiations should occur. (Jt. Exh. 1 at 220-221). /9/ Mr. Gurwit's October 24, 1980 bargaining request referred to Section 10 of Article 21, which provided that "the Union shall be provided with advance notice and an opportunity to bargain over the substance, implementation, or impact of such change as appropriate." Mr. Gurwit's limitation of his request to impact and implementation bargaining clearly indicates that he deemed impact and implementation bargaining to be "appropriate." /10/ At most the mention of a postponement was an afterthought or a reflection on Mr. Gurwit's part, and as such would have had no special significance in the light of the prior agreement to conclude impact and implementation bargaining after the change. /11/ It is noted that the brief filed by counsel for the General Counsel indicates that the proposals prepared indicate that the Union "fully intended to bargain over the decision." (General Counsel's Brief at 12). /12/ The briefs submitted on behalf of the Charging Party and the General Counsel can be interpreted in part as implying that this case rests upon interpretations to be given provisions of the collective bargaining agreement.