16:0506(73)CA - Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, DC and Central Region and NTEU and NTEU Chapter 88 -- 1984 FLRAdec CA
[ v16 p506 ]
16:0506(73)CA
The decision of the Authority follows:
16 FLRA No. 73
UNITED STATES DEPARTMENT OF TREASURY
BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, WASHINGTON, D.C. AND
CENTRAL REGION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 88
Charging Party
Case Nos. 5-CA-535
5-CA-536
5-CA-537
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action. The Judge also found
that the Respondent had not engaged in certain other alleged unfair
labor practices and recommended that those portions of the consolidated
complaint be dismissed. Thereafter, the Respondent and the General
Counsel filed exceptions and supporting briefs to portions of the
Judge's Decision.
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 Recommended Order, except as modified
herein.
In agreement with the Judge's conclusion, the Authority finds that
Respondent's failure to provide the union with adequate prior notice of
its decision to change from direct to general supervision of the one-man
distilled spirits plants (DSPS), and to detail Firearm Inspectors from
the Cincinnati Area Office to the Firearms Section of the Regional
Office, was violative of section 7116(a)(1) and (5) of the Statute. In
so finding, the Authority emphasizes that where an agency in exercising
a management right under section 7106 of the Statute changes conditions
of employment of unit employees, there exists a statutory duty to
negotiate if such change results in more than a de minimis impact upon
unit employees or such impact is reasonably foreseeable. See U.S.
Government Printing Office, 13 FLRA No. 39 (1983) and Department of
Health and Human Services, Social Security Administration, Chicago
Region, 15 FLRA No. 174 (1984).
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Department of Treasury, Bureau of
Alcohol, Tobacco and Firearms, Washington, D.C. and its Central Region:
1. Cease and desist from:
(a) Changing the method of supervision of distilled spirits plants
and instituting details of Firearm Inspectors to the Firearms Section to
perform the duties of Firearm Examiners without first notifying the
National Treasury Employees Union and affording it the opportunity to
negotiate concerning the impact and implementation of such changes.
(b) Refusing to bargain, upon request, with the National Treasury
Employees Union concerning the impact upon employees of the change of
supervision to general supervision from direct supervision of distilled
spirits plants in the Louisville Area and concerning the impact upon
employees of the detailing of Firearm Inspectors in the Cincinnati Area
to the Firearms Section to perform the duties of Firearm Examiners.
(c) In any like or related manner, interfering with, restraining, or
coercing its employees in the rights assured by the Federal Service
Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Notify the National Treasury Employees Union of any intention to
change the method of supervision of distilled spirits plants or to
institute details of Firearm Inspectors to a Firearms Section to perform
the duties of Firearm Examiners and, upon request, negotiate with such
representative concerning the impact and implementation of such actions.
(b) Bargain, upon request, with the National Treasury Employees Union
concerning the impact upon employees of the change of supervision to
general supervision from direct supervision of distilled spirits plants
in the Louisville Area and concerning the impact upon employees of the
detailing of Firearm Inspectors in the Cincinnati Area to the Firearms
Section to perform the duties of Firearm Examiners.
(c) 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 an appropriate official and they
shall be posted for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. The Agency shall take reasonable steps to insure that such
Notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director of Region V, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order as to
what steps have been taken to comply with the Order.
IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-537, be,
and it hereby is, dismissed.
Issued, Washington, D.C., November 15, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF UNITED
STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY
OUR
EMPLOYEES THAT:
WE WILL NOT change the method of supervising distilled spirits plants
or institute details of Firearm Inspectors to the Firearms Section to
perform the duties of Firearm Examiners without first notifying the
National Treasury Employees Union and affording it the opportunity to
negotiate concerning the impact and implementation of such changes.
WE WILL NOT refuse to bargain, upon request, with the National
Treasury Employees Union concerning the impact upon employees of the
change of supervision to general supervision from direct supervision of
distilled spirits plants in the Louisville Area and concerning the
impact upon employees of the detailing of Firearm Inspectors in the
Cincinnati Area to the Firearms Section to perform the duties of the
Firearm Examiners.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL notify the National Treasury Employees Union of any intended
change in the method of supervising distilled spirits plants and
institution of details of Firearm Inspectors to a Firearms Section to
perform the duties of Firearm Examiners and upon request, negotiate with
such representative concerning the impact and implementation of such
actions.
WE WILL bargain, upon request, with the National Treasury Employees
Union concerning this impact upon employees of the change of supervision
to general supervision from direct supervision of distilled spirits
plants in the Louisville Area and concerning the impact upon employees
of the detailing of Firearm Inspectors in the Cincinnati Area to the
Firearms Section to perform the duties of Firearm Examiners.
(Activity)
Dated: By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois 60604 and
whose telephone number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
UNITED STATES DEPARTMENT OF TREASURY
BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, WASHINGTON, D.C. AND
CENTRAL REGION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 88
Charging Party
Case Nos. 5-CA-535
5-CA-536
5-CA-537
Michael Sitcov, Esq.
For the Respondent
Michael Barkow, Esq.
For the Charging Party
Gregory A. Miksa, Esq.
For the General Counsel,
Federal Labor Relations Authority
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
et seq. (hereinafter referred to as the Statute) and the Rules and
Regulations of the Federal Labor Relations Authority, 5 C.F.R. Chapter
XIV, Sec. 2410 et seq.
A charge was filed in Case No. 5-CA-535 on May 19, 1980 by National
Treasury Employees Union (hereinafter called NTEU) and NTEU Chapter 88
(collectively referred to as Charging Party and/or Union) against Bureau
of Alcohol, Tobacco and Firearms (hereinafter called ATF) and ATF
Central Region (both collectively referred to as Respondent). Charges
were filed in Case Nos. 5-CA-536 and 537 on May 19, 1980 by Charging
Party against Respondent.
Pursuant to the above described charges the General Counsel of the
Federal Labor Relations Authority (FLRA) by the Regional Director for
Region 5 issued an Order Consolidating Cases, Complaint and Notice of
Hearing on July 31, 1980. The Order Consolidating Cases, Complaint and
Notice of Hearing alleges that Respondent violated Section 7116(a)(1)
and (5) of the Statute by failing and refusing to negotiate concerning
changes in supervision at distilled spirits plants, as alleged in Case
No. 5-CA-535; concerning the detailing of inspectors to the Regional
Office to perform Firearm Examiner duties, as alleged in 5-CA-536; and
concerning the detailing of plant inspectors for 30 day periods from
Lawrenceburg, Indiana to Cincinnati Area Office and from the Cincinnati
Are office to Lawrenceburg, Indiana, as alleged in Case No. 5-CA-537.
Respondent in its answer denied all unfair labor practice allegations.
A hearing in this matter was conducted before the undersigned in
Cincinnati, Ohio. The General Counsel of the FLRA, Respondent and
Charging Party were represented by counsel and afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce
evidence and to argue orally. Briefs were filed by all parties and have
been fully considered. The parties were granted until April 10, 1981 to
file reply briefs, and the reply brief filed by the General Counsel of
the FLRA has been duly considered.
Upon the entire record /1/ in the matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
The Union is the exclusive collective bargaining representative of
all non-professional wage-grade and general-schedule employees in
Respondent's Regional Offices including its Central Regional, /2/ which
has area offices in a number of cities including Cincinnati, Ohio;
Indianapolis, Indiana; and Louisville, Kentucky. Inspectors employed
in Respondent's various regions, including in the Central Region, are
employees in the regional unit described above represented by NTEU.
NTEU, Chapter 88 is the agent of NTEU and serves as NTEU's agent in the
area covered by Respondent's Central Region. NTEU Chapter 88's
President and Vice-President are responsible for all contacts and
communications with Respondent's Central Region's management for at
least the last four years. Further NTEU Assistant Counsel Jean Rogers
has been responsible for all communications between NTEU and ATF at the
National level.
Case No. 5-CA-535
Inspectors employed within AFT's Central Region supervise privately
operated "In-Bond" distilled spirits plants (hereinafter referred to in
the singular as DSP and in the plural as DSPS). /3/ Prior to April
1980, DSPS were under direct supervision wherein the inspector assigned
to a particular DSP would unlock it in the morning, remain on the
premises and perform duties throughout the day and then lock up the DSP
at close of business. /4/ The on premises duties included locking and
unlocking warehouses and tanks, gauging spirits, auditing plant records
and performing general inspector duties.
In the latter part of 1979, pursuant to the Distilled Spirits Tax
Revision Act of 1979, also called the Trade Agreements Act of 1979
(hereinafter referred to as the Trade Agreement's Act and the Distilled
Spirits Act), /5/ Respondent transmitted to NTEU's National office a
memorandum whose subject was "Implementing Procedures for All-In-Bond,
the Distilled Spirits Tax Revision Act of 1979" and published in the
Federal Register AFTC Rules and Regulations for Implementing the
Distilled Spirits Act, 27 CFR Parts 5 et al, (44 Fed.Reg. 239, page
71612 et seq., Tuesday, December 11, 1979). The foregoing provided, as
permitted by the Distilled Spirits Act, that DSPS would go from direct
supervision to general supervision after certain preconditions had been
met and certain steps taken by both the private proprietors of the DSPS
and employees of AFT. On February 7, 1980 Respondent's Central Region
All-In-Bond Coordinator issued a memorandum to Central Region inspectors
stating that inspectors would not be removed from DSPS direct supervisor
assignments until all proprietors' internal controls, security and
storage records had been certified by the Audit Section. Under the plan
of general supervision the inspector unlocks the DSP in the morning,
leaves the premises /6/ and performs various duties, within his job
description, at other locations, which may or may not be DSPS, and then
returns to the original DSP at the close of the work day to lock up the
premises.
On April 7, 1980, NTEU Chapter 88 President Martin J. Connell
received a telephone call from a unit employee and was advised that ATF
had proposed and started to implement a plan to change ATF's control
over the DSPS in the Louisville, Kentucky area of the Central Region by
reducing the supervision in five single inspector DSPS from direct to
general supervision. This was the first notification NTEU Chapter 88
President Connell, or the NTEU, had of these changes. Prior to April 7,
1980 NTEU was not advised that supervision in the DSPS would be
curtailed or reduced or changed from direct supervision to general
supervision absent a proprietor security statement being filed and the
specific DSP being inspected and certified as provided by ATF's
regulations. NTEU Chapter 88 President Connell overheard ATF
supervisory Inspector John Beauchamp and Joseph Kamber telephoning
affected inspectors and plant proprietors explaining the new general
supervision procedures.
NTEU Chapter 88 President Connell approached AFT Area Supervisor
Walls and advised him that the instituting of general plant supervision
was a change in practice and working conditions and that the NTEU had
not been notified of the change. Supervisor Walls replied that he was
establishing general supervision plants at the direction of the AFT
Central Region and that implementation would commence on April 14, 1980.
On or about April 10, 1980 President Connell sent a letter to AFT
Central Region Personnel Officer Robert H. Lumpkin stating that
President Connell had not received notice of the impending April 14
change to general plant supervisor, stating that he had just learned of
the change and requesting negotiations regarding the substance, impact
and implementation of the proposed change and that implementation of the
change be postponed pending the outcome of the bargaining. On April 10,
1980 Supervisory Inspectors Beauchamp and Kamber presented a memorandum
to Supervisor Walls setting forth a schedule for conversion of the DSPS
to general supervision, including a list of affected plants, the dates
of conversion and an estimation of how long it would take inspectors to
perform the plant supervision on each individual plant. On April 14,
the change to general supervision was implemented.
By a memorandum dated April 24, 1980 Personnel Officer Lumpkin
advised NTEU Chapter 88 President Connell that the April 10, 1980
request "to negotiate the assignment of Inspectors in Louisville,
Kentucky from warehouses to other duties during the day . . . deal(s)
with . . . assignment to work." The memorandum further stated that ATF
is privileged not to negotiate concerning this matter and that it had
"elected not to negotiate . . . " concerning this issue.
The conversion to general supervision was eventually completed in the
Central Region. /7/ Prior to this conversion, and in fact to date, no
security statements necessary for plant certification had been filed for
the 5 affected one-man plants and certification had not accomplished
prior to conversion to general supervision.
Prior to April 1980, at both one-man and multi-man DSPS,
approximately 10 inspectors assigned in the Louisville Area remained at
such DSPS their entire 8-hour day while three inspectors, when assigned
to multiman DSPS, occasionally left the plants to perform other
assignments. The inspectors were transferred from one DSP to another
every two to six months. Accordingly all inspectors would be affected
by the conversion to DSPS-General Plant Supervision at the 5 affected
one-man DSPS by virtue of their eventual rotation to such plants.
Subsequent to the April 1980 change of the DSPS to General Plant
Supervision, at the one man DSPS, the inspector would leave the DSP
after unlocking the plant and doing some checks, in order to perform
other functions and duties elsewhere, returning to the DSP to lock it up
at the end of the workday. None of the affected inspectors were
required to engage in any duties outside of their position descriptions.
Prior to April 1980 Inspectors assigned to the one-man DSPS would
drive or take public transportation to the plants in question. They did
not need any transportation during the workday. There were three GSA
cars available to perform non-DSPS inspection duties and these were
almost exclusively performed by three Louisville inspectors. After the
April 1980 change to general supervision eight inspectors were regularly
assigned to perform non-DSPS inspections with no increase in the total
number of available GSA cars. Thus inspectors found public
transportation insufficient and, because of there were only three GSA
cars, found they had to use their own vehicles to perform their non-DSPS
inspection duties. Some of these duties involved extensive travel and
some of the inspectors were concerned whether their automobiles were
safe or road worthy. Inspectors were reimbursed for such use of their
private automobiles.
Prior to April 1980 inspectors doing DSPS work at one-man plants wore
casual work attire throughout the day. After the change to general
supervision inspectors wore casual work clothes to perform their duties
in the DSPS and then needed changes of clothes, coats and ties, in order
to perform their additional duties which involved meeting the general
public and high industry officials.
Prior to the April 1980 change, inspectors assigned to one-man plants
could store lunches in refrigerators located in the government offices
in the DSPS and there were usually coffee pots available. After the
change to general supervision the affected inspectors were not at the
one-man DSPS at lunch hour and thus could no longer utilize the
refrigerators and coffee pots. Thus they had to spend more money for
lunch and coffee breaks.
Prior to the April 1980 change, inspectors assigned to the one-man
DSPS could be readily contacted at work with respect to family
emergencies. Subsequent to the change to general supervision the
affected inspectors were much more difficult to contact, if they could
be contacted at all.
Subsequent to the April 1980 change to general supervision the DSPS
inspectors, who had limited experience and training in non-DSPS aspects
of inspector duties and responsibilities, were called upon to perform
non-DSPS inspector duties in the field, with limited supervisory
availability and limited training.
NTEU filed an unfair labor practice charge against ATF on January 31,
1980 in Case No. 3-CA-838. NTEU and ATF signed a memorandum of
understanding on October 1, 1980 which states in part:
"(1) NTEU will withdraw with prejudice the unfair labor
practice concerning the Distilled Spirits Tax Revision Act (Case
No. 3-CA-838).
(2) . . . .
(3) . . . .
(4) This memorandum of understanding constitutes full and
complete settlement and satisfaction of any and all causes of
action, damages, claims and demands related to the implementation
of the Act."
Withdrawal of the Unfair Labor Practice Charge in Case No. 3-CA-838
was approved by the Regional Director, Region 3, FLRA by letter dated
September 24, 1980. /8/ No withdrawal requests or settlement agreements
were approved or entered into by any Regional Director of the FLRA with
respect to Case No. 5-CA-535.
Case No. 5-CA-536
On or about April 14, 1980 NTEU Chapter 88 Steward Glenn Hagar
learned from unit employees that GS 7 and 9 Firearm Inspectors in the
Cincinnati Area Office had been detailed on or about April 1, 1980 to
the Regional Office Firearms Section, located in the same building as
the Cincinnati Area Office. NTEU Chapter 88 received no notice of this
detail from any agent of ATF.
On or about April 21, 1980 Union Steward Hagar notified NTEU Chapter
88 President Connell about this detail. By letter dated April 21, 1980
to ATF Regional Personnel Officer Lumpkin, NTEU Chapter 88 President
Connell requested to bargain over the substance, impact and
implementation of the two week assignments of these inspectors to the
Firearms Section to perform the duties of Firearm Examiners. Personnel
Officer Lumpkin's response to April 24, 1980 denied President Connell's
request to bargain. The assignments of the inspectors to the Firearms
Section were made because there was a backlog of firearm applications
that had to be processed. Area supervisors were responsible for
choosing which inspectors would be assigned to the Firearms Section and
neither NTEU Chapter 88 nor the inspectors themselves were advised of
the basis for selection of the inspectors for assignment. There was no
plan to see that these details were equitably distributed among affected
employees. The detail consisted of processing firearm applications,
separating and processing 5 copy license forms and reviewing the forms
to be sure they were completed. These were routine tasks usually
handled by Firearm Examiners, GS 6 clerks. The foregoing were not
duties set forth in the inspector position description. The inspectors'
duties ordinarily involved meeting with high and middle level corporate
management on a daily basis. Between April 1, 1980 and mid-May 1980 a
total of six inspectors were assigned on such two week details. This
was the first such detail President Connell could recall in his 16 years
of experience and the record does not establish that previously there
had been such details in the Central Region, although details had been
employed in a similar situation in the North-Atlantic Region.
Article 10 of the collective bargaining agreement covers "Details".
Section 3 of Article 10 provides that a detail is a temporary assignment
of an employee to a different position for a specified period. Section
2 sets forth the circumstances under which ATF can detail employees to a
lower-graded position. /9/
Case No. 5-CA-537
On or about April 9, 1980 NTEU Chapter 88, through Shop Steward
Hagar, became aware that ATF was already implementing a training program
whereby certain DSPS inspectors from the Lawrenceburg, Indiana
post-of-duty were assigned to the Cincinnati Area Office for 30 days and
certain inspectors were assigned from the Cincinnati Area Office to the
Lawrenceburg post-of-duty for 30 day periods. Union Steward Hagar
received this information as an employee, a DSPS inspector, when told of
his assignment under this program on April 9, 1980. NTEU Chapter 88 had
no prior notice of any kind that ATF was implementing this program.
Steward Hagar contacted President Connell and advised him of the
institution of the reciprocal assignments from Lawrenceburg to
Cincinnati. By letter dated April 9 to Personnel Officer Lumpkin
President Connell requested to bargain about the substance, impact and
implementation of the program and that its implementation be postponed
pending the outcome of the negotiations.
Personnel Officer Lumpkin responded by the letter of April 24, 1980
wherein he refused to negotiate concerning this matter. The reciprocal
assignment training program between Lawrenceburg and Cincinnati
continued during April and May 1980.
Lawrenceburg is approximately 25 miles from Cincinnati. The record
establishes that the Lawrenceburg inspectors, when working at their home
office, were assigned to DSPS inspector work and such work constituted
90 to 95 percent of the inspectors' responsibilities. While assigned to
the Cincinnati Area Office the Lawrenceburg inspectors were assigned no
DSPS inspections; rather they performed inspections concerning brewery
and explosive and firearm compliance matters, matters which were very
unfamiliar to some of the Lawrenceburg inspectors. With respect to at
least one of the Lawrenceburg inspectors, /10/ while assigned to
Cincinnati, his commuting time to work was increased by 30 to 45 minutes
each way; thus he frequently arrived home later than when he was
commuting to and from Lawrenceburg. He was required to wear more formal
clothing suited to inspection work in Cincinnati as contrasted to the
casual work clothes worn while performing DSPS inspections.
Lawrenceburg post-of-duty came under the jurisdiction of the
Cincinnati area office in mid 1979. The April and May 1980 training
assignments between Lawrenceburg and Cincinnati were the first such
assignments between these two offices since Lawrenceburg came under the
jurisdiction of the Cincinnati Area Office. Since 1975 or 1976 there
has been rotation of inspectors between inspectors assigned to the
Cincinnati Area Office and inspectors assigned to DSP Ohio 1. The work
in these two locations are different. Prior to it becoming under the
jurisdiction of the Cincinnati Area Office, Lawrenceburg was under the
jurisdiction of the Indianapolis, Indiana Area Office and there had been
occasions when Lawrenceburg inspectors were temporarily assigned to the
Indianapolis office for training.
Discussion and Conclusions
Issues
(a) Whether Respondent failed and refused to afford the Union
adequate notice and/or an opportunity to bargain concerning the
implementation and impact on employee working conditions of its change
to "DSPS-General Plant Supervision" at five Louisville, Kentucky area
In-Bond Distilled Spirits Plants in April 1980, in violation of 5 U.S.C.
7116(a)(1) and (5).
(b) Whether Respondent failed and refused to afford the Union
adequate notice and/or an adequate opportunity to bargain concerning the
implementation and impact on employee working conditions of its detail
of six employee Inspectors from its Cincinnati Area Office to its
Regional Office Firearms Section to perform Firearm Examiner duties in
April and May 1980, in violation of 5 U.S.C. 7116(a)(1) and (5).
(c) Whether Respondent failed and refused to afford the Union
adequate notice and/or an opportunity to bargain concerning the
implementation and impact on employee working conditions of its
institution of a program of reciprocal assignments of Inspectors for
30-day periods between its Lawrenceburg, Indiana post-of-duty and its
Cincinnati Area Office in violation of 5 U.S.C. 7116(a)(1) and (5).
5-CA-535
Respondent urges that the "settlement" entered into by ATF and NTEU
in connection with Case No. 3-CA-838 also disposes of Case No. 5-CA-535
because the "settlement" states that it constitutes the full "settlement
and satisfaction of any and all causes of action . . . and demands
related to the implementation of the (Distilled Spirits Tax Revision)
Act." Sections 2423.29 and 2423.11 of the FLRA's Rules and Regulations
require Regional Director approval for withdrawals or settlement of
unfair labor practice cases. The Respondent makes extensive argument
urging that in the federal sector unfair labor practice cases involve
private rights between the parties and not public rights. Although I am
disposed to reject ATF's position, I need not reach it; rather I am
bound to follow the FLRA's Rules and Regulations which require a
Regional Director's approval of and participation in the withdrawal or
settlement of a case. Accordingly, because the Regional Director for
Region 5 has neither approved a withdrawal nor entered into a settlement
in Case No. 5-CA-535, I must reject ATF's contention that this matter
has already been settled and is not appropriately before me.
The record establishes that change from direct supervision to general
supervision of the one-man DSPS was a substantial change in the affected
inspectors' working conditions, requiring them to travel to additional
locations during the day and to perform tasks which, although in their
job descriptions, they had not routinely performed. The impact on the
inspectors was substantial requiring them to deal with additional travel
problems, communication problems in case of personnel emergencies,
performing duties with which they were unfamiliar, etc. Accordingly
NTEU was entitled to bargain about the impact and implementation of this
change. /11/ NTEU was entitled to notice sufficiently in advance of the
change it enable it to request to bargain about the impact and
implementation of the change before the change became effective. Such
notice of the change was never given to NTEU, and by failing in this
responsibility ATF violated Section 7116(a)(5) and (1) of the Statute.
U.S. Air Force, AFLC, Aerospace Guidance and Meteorology Center, Newark,
Ohio, 4 FLRA No. 70 (1980) (hereinafter called the Air Force Case).
ATF's refusal to bargain about the impact and implementation of the
change, after being specifically asked to do so by NTEU, constituted a
violation of Section 7116(a)(5) and (1) of the Statute. /12/ ATF's
contention that, because it was required by the Trade Agreement Act to
make the subject changes, it was somehow relieved of its obligation to
bargain about the impact and implementation of such change is rejected.
Although the Trade Agreement Act might have required the subject change
in working conditions, there is no showing that it in anyway limited
ATF's ability to bargain with NTEU with respect to the implementation of
the changes or the many ways to minimize the adverse impact on employees
resulting from the change. Cf. NLRB Region V, 2 FLRA No. 42 (1979).
Accordingly, it is concluded that ATF violated Sections 7116(a)(5)
and (1) of the Statute by failing to give NTEU notice of the change from
direct to general supervision of the DSPS and by refusing, after being
asked, concerning the implementation and impact of such change.
5-CA-536
It is concluded that the detailing of the Firearm Inspectors to the
Firearms Section to perform the primarily clerical duties of the Firearm
Examiners constitutes a substantial change in the working conditions of
the inspectors with foreseeable and substantial impact on the
inspectors, including affecting career development and work outside
their position descriptions. Accordingly NTEU was entitled to advance
notice of the change to enable it to bargain concerning the
implementation of the change and the impact before the change became
effective. /13/ In the instant case ATF did not give the NTEU the
required notice of the change and, after requested to bargain by NTEU,
refused to bargain concerning the implementation of the change and its
impact on the affected inspectors. ATF urges that its conduct was not a
violation of Section 7116(a)(5) of the Statute because firearm
applications have to be processed within 45 days and the Firearms
Section was short of staff. There is no dispute that ATF was faced with
these problems and was required to act. However, this is analogous to
the arguments made in Case No. 5-CA-535 with respect to the Trade
Agreement Act and they must be rejected in the same reasons. The mere
fact ATF is faced with a real problem does not free it from meeting its
obligation to provide NTEU with adequate notice and an opportunity to
bargain with respect to the implementation of the detail program and its
impact on the employees.
ATF contends that it was privileged to act unilaterally in the
instant case with no obligation to give notice because the matter was
already provided for in Article 10 of the collective bargaining
agreement. Article 10 merely defines details and describes the
circumstances in which they may be utilized; it does not describe how
such details are to be implemented (e.g. how employees are to be
selected; how long details are to last, etc.) or how the adverse impact
of such details on employees is to be minimized (e.g. the effect on
employee career development of performing clerical and below grade
tasks, etc). The implementation of the details and their impact on
employees are matters about which NTEU is entitled to bargain unless
NTEU has clearly and intentionally waived such rights. Cf. Department
of the Army, U.S. Army Electronics Command, Fort Monmouth, New Jersey,
FLRC No. 76A-101; Internal Revenue Service, National Office, A/SLMR No.
1079 (1978); and Internal Revenue Service, Fresno Service Center,
A/SLMR No. 1119. In the instant case therefore ATF's waiver argument
must be rejected because Article 10 of the collective bargaining
agreement, although dealing with ATF's ability to utilize details and
the circumstances when they may be utilized, does not mention or in any
way waive NTEU's right to advance notice of such details or to bargain
about the implementation and impact of such details.
Accordingly, it is concluded that ATF's failure to provide NTEU with
advance notice of the details of Firearm Inspectors to the Firearms
Section and ATF's refusal to bargain concerning the impact and
implementation of the details, after having been so requested by NTEU,
violated Sections 7116(a)(5) and (1) of the Statute.
5-CA-537
The General Counsel urges that ATF violated Sections 7116(a)(5) and
(1) of the Statute by unilaterally, and without notice instituting a
system of reciprocal training assignments between inspectors assigned to
the Lawrenceburg post-of-duty and the Cincinnati Office and by refusing
to bargain about the impact and implementation of this change after
being so requested by NTEU. The Lawrenceburg post-of-duty came under
the control of the Cincinnati Area Office in mid 1979. The record
establishes that since 1975 or 76 the Cincinnati Area Office operated
some reciprocal training programs. Thus it is concluded that the
operation and institution of the subject training program with respect
to the Lawrenceburg post-of-duty was not a unilateral change. Rather,
it would seem that the time the realignment of Lawrenceburg under the
Cincinnati Area Office took place would have been the appropriate time
for NTEU to negotiate and bargain with ATF concerning which Cincinnati
Area Office training program would apply to Lawrenceburg and the other
aspects of the implementation and impact of the realignment. /14/
However, once the Lawrenceburg post-of-duty was included within the
jurisdiction of the Cincinnati Area Office, the working conditions and
policies of the Cincinnati Area Office would automatically become
applicable, including the practice of having reciprocal training.
Hence, there was no unilateral change with respect to the institution of
the training program in Lawrenceburg and thus no violation by ATF of
Sections 7116(a)(5) and (1).
Remedy
It is concluded that a status quo ante remedy is not appropriate in
the subject case because the details of Firearm Inspectors has ceased
and the conversion from direct to general /15/ supervision of DSPS was
made because it was required by law.
Having found and concluded that ATF violated Sections 7116(a)(5) and
(1) of the Act in Case Nos. 5-CA-535 and 536 with respect to the changes
in DSPS supervision and detail of Firearm Inspectors to the Firearms
Section, but that ATF did not violate Sections 7116(A)(5) and (1) of the
Act in Case No. 5-CA-537 with respect to the utilization of a reciprocal
training program in Lawrenceburg, it is recommended that the Federal
Labor Relations Authority issue an Order dismissing those allegations of
the Complaint concerning the reciprocal training program in the
Lawrenceburg post-of-duty, Case No. 5-CA-537, and with respect to the
remaining allegations of the Complaint, issue the following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Authority hereby orders that the Department of Treasury, Bureau of
Alcohol, Tobacco and Firearms, Washington, D.C. and its Central Region:
1. Cease and desist from:
(a) Changing the method of supervision of distilled spirits
plants and instituting details of Firearm Inspectors to Firearms
Section to perform the duties of Firearms Examiners without first
notifying National Treasury Employees Union and affording it the
opportunity to consult and negotiate, to the extent consonant with
law and regulations, concerning the impact and implementation of
such changes.
(b) Refusing to bargain with National Treasury Employees Union
concerning the impact upon employees of the change of supervision
to general supervision from direct supervision of distilled
spirits plants in the Louisville Area and concerning the impact
upon employees of the detailing of Firearm Inspectors in the
Cincinnati Area to the Firearms Section to perform the duties of
Firearm Examiners.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the rights assured by
the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Notify the National Treasury Employees Union of any
intention to change the method of supervision of distilled spirits
plants or institute details of Firearm Inspectors to a Firearms
Section to perform the duties of Firearm Examiners and, upon
request, consult and negotiate with such representative, to the
extent consonant with law and regulations, concerning the impact
and implementation of such actions.
(b) Bargain with the National Treasury Employees Union
concerning the impact upon employees of the change of supervision
to general supervision from direct supervision of distilled
spirits plants in the Louisville Area and concerning the impact
upon employees in the detailing of Firearm Inspectors in the
Cincinnati Area to the Firearms Section to perform the duties of
Firearm Examiners.
(c) Post at its facilities 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 an appropriate official and they shall be posted for 60
consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. The
Agency 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, what steps have been
taken to comply herewith.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: June 4, 1981
Washington, D.C.
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 change the method of supervisory distilled spirits plants
or institute details of Firearm Inspectors to the Firearms Section to
perform the duties of Firearm Examiners without first notifying National
Treasury Employees Union and affording it the opportunity to consult and
negotiate, to the extent consonant with law and regulations, concerning
the impact and implementation of such changes.
WE WILL NOT refuse to bargain with the National Treasury Employees
Union concerning the impact upon employees of the change of supervision
to general supervision from direct supervision of distilled spirits
plants in the Louisville Area and concerning the impact upon employees
of the detailing of Firearm Inspectors in the Cincinnati Area to the
Firearms Section to perform the duties of the Firearm Examiners.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL notify National Treasury Employees Union of any intended
change in the method of supervisory distilled spirits plants and
institution of details of Firearm Inspectors to a Firearms Section to
perform the duties of Firearm Examiners and upon request, consult and
negotiate with such representative, to the extent consonant with law and
regulations, concerning the impact and implementation of such actions.
WE WILL bargain with National Treasury Employees Union concerning the
impact upon employees of the change of supervision to general
supervision from direct supervision of distilled spirits plants in the
Louisville Area and concerning the impact upon employees of the change
of supervision to general supervision from direct supervision of
distilled spirits plants in the Louisville Area and concerning the
impact upon employees of the detailing of Firearm Inspectors in the
Cincinnati Area to the Firearms Section to perform the duties of Firearm
Examiners.
(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 its provisions, they may communicate directly with the Regional
Director of Region V, Federal Labor Relations Authority, whose address
is: 175 West Jackson Boulevard, Suite A-1359, Chicago, Illinois 60606;
Telephone No. (312) 886-3468.
--------------- FOOTNOTES$ ---------------
/1/ The transcript is corrected as follows:
Page 5, line 24, from "1(a) through (f)" to "1(a) through (i)"
Page 9, line 25, from October 24, 1970 to October 24, 1980
Page 14, line 17, from "bargaining units" to "bargaining unit"
Page 54, line 8 from "change from" to "change for"
Page 87, line 15, from "these experiences" to "these
Inspectors"
/2/ The Central Region Office is located in Cincinnati.
/3/ Some DSPS were under the supervision of one inspector and others
were under the supervision of more than one inspector.
/4/ When more than one inspector were assigned to a DSP one or more
inspectors would remain at the plant all day and, if not needed, one of
the additional inspectors might have duty assignments elsewhere during
the day.
/5/ The Distilled Spirits Tax Revision Act of 1979 is Title VIII of
the Trade Agreements Act of 1979; Pub. L. 96-39; 26 U.S.C. 5201, et
seq.
/6/ Prior to leaving the premises the inspector might perform some
limited duties for a brief period of time.
/7/ At least 5 one-man plants were converted to general supervision
from direct supervision.
/8/ Judicial notice was taken of this approval and the parties were
given the opportunity to file briefs with respect to this matter.
/9/ Article 10 Section 2 states:
"The detailing of personnel to lower-graded position is
considered to be inconsistent with sound planning and management
and will be kept to an absolute minimum. However, the Employer
may use details under circumstances such as the following:
1. When a temporary shortage of personnel exists;
2. Where an exceptional volume of work suddenly develops and
seriously interrupts the work schedule;
3. To fill temporarily the positions of employees on extended
leave with or without pay; or
4. Other conditions of a special and temporary nature."
/10/ Union Steward Glen Hagar.
/11/ Cf. Norfolk Naval Shipyard, 3 FLRA No. 15 (1980); Aircraft Fuel
and Rescue Division, Air Operations Department, Naval Air Station,
Norfolk, Virginia, 3 FLRA No. 18 (1980); Department of the Treasury,
Internal Revenue Service, Jacksonville District, 3 FLRA No. 103 (1980);
IRS, Washington, D.C., 4 FLRA No. 68 (1980); Department of the Navy,
Portsmouth Naval Shipyard, 5 FLRA No. 48 (1981).
/12/ See Cases cited in Footnote 11, supra.
/13/ See cases cited in Footnote 11 herein and the Air Force Case,
supra.
/14/ Whether there was adequate notice at the time of realignment and
opportunity to bargain is not before me in this matter.
/15/ The basic collective bargaining relationship was between NTEU
and ATF on a National level, with the Central Region of ATF acting as
ATF's agent on the local level and NTEU Chapter 88 acting as NTEU's
agent on the local level. Accordingly, it must be concluded that ATF is
responsible for any breach of its bargaining obligations by its agent
ATF Central Region.