18:0263(34)CA - Customs Service and NTEU and All NTEU Chapters -- 1985 FLRAdec CA
[ v18 p263 ]
18:0263(34)CA
The decision of the Authority follows:
18 FLRA No. 34
U.S. CUSTOMS SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION AND ALL NTEU CHAPTERS
Charging Party
Case No. 3-CA-30160
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent, U.S. Customs
Service, had engaged in the unfair labor practices alleged in the
complaint and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action. Thereafter, the
Respondent filed exceptions with respect to the Judge's Decision and the
General Counsel filed an opposition thereto.
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.
Thus, in agreement with the Judge, the Authority concludes that the
Respondent satisfied its obligation to give timely notice to the Union
of its intention to implement its National Inspectional Contraband
Enforcement Team Policy (CET) by mailing such notice to the Union on
August 31, 1982, even though the Union never received such notice. As a
result, the Respondent did not violate section 7116(a)(1) and (5) of the
Statute /1/ when it proceeded to take the necessary steps to implement
the policy on September 16, absent any request to bargain by the Union
within the contractual notice period.
However, also in agreement with the Judge, the Authority concludes
that the Respondent's subsequent refusal to negotiate upon request by
the Union concerning procedures and appropriate arrangements for
adversely affected employees prior to the issuance of the plan did
violate section 7116(a)(1) and (5) of the Statute. Thus, the Authority
notes that the Union's request to bargain, immediately upon its
discovery of the Respondent's intended change in policy, was more than
two weeks before the actual issuance of the plan. Also in agreement
with the Judge, the Authority finds that the Respondent's actions at
that time, including its assertion that the Union had waived the right
to bargain, effectively precluded the Union from submitting written
proposals as required by the parties' agreement, and therefore such
failure cannot be raised by the Respondent as a defense to its refusal
to negotiate. Accordingly, in all the circumstances of this case, the
Authority finds, in agreement with the Judge, that the Respondent
violated section 7116(a)(1) and (5) of the Statute.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the U.S. Customs Service shall:
1. Cease and desist from:
(a) Refusing to negotiate in good faith with the National Treasury
Employees Union concerning procedures and appropriate arrangements for
unit employees adversely affected by its National Inspectional
Contraband Enforcement Team Policy, issued October 19, 1982, as Manual
Supplement No. 3290-04.
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request and perfection of a bargaining proposal, as required
by the parties' current collective bargaining agreement, negotiate in
good faith with the National Treasury Employees Union concerning
procedures and appropriate arrangements for unit employees adversely
affected by its National Inspectional Contraband Enforcement Team
Policy, issued October 19, 1982.
(b) Post at each of its facilities, including its Headquarters Office
in Washington, D.C., and each Regional Office, and at all places where
notices to employees of the U.S. Customs Service are customarily posted,
copies of the attached Notice on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms, they shall be
signed by the Commissioner, U.S. Customs Service, or his designee, and
shall be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, 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.
Issued, Washington, D.C., May 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to negotiate with the National Treasury Employees
Union concerning procedures and appropriate arrangements for unit
employees adversely affected by our National Inspectional Contraband
Enforcement Team Policy, issued October 19, 1982, as Manual Supplement
No. 3290-04.
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 upon request and perfection of a bargaining proposal, as
required by our current collective bargaining agreement, negotiate in
good faith with the National Treasury Employees Union concerning
procedures and appropriate arrangements for unit employees adversely
affected by our National Inspectional Contraband Enforcement Team
Policy, issued October 19, 1982.
(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 III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, N.W., Room 700, P.O. Box 33758, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Alfonso Robles, Esquire
For the Respondent
Mr. John McEleney
For the Charging Party
Carolyn J. Dixon, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY, Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /2/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., involves Respondent's asserted failure and
refusal "to negotiate in good faith with the Union over the impact and
the procedures relating to the implementation of the issuance entitled
'National Inspectional Enforcement Team Policy'" (Complaint, Paragraph
9, G.C. Exh. 1(c)). In actuality, two principal issues are presented:
First, did Respondent lawfully proceed with the issuance of the above
policy when it had mailed to the Union timely notice, addressed to the
designated person, which fixed a date for response; the Union did not
respond and denies receipt of Respondent's notice; and the Union
asserts that it learned of the policy, and its imminent implementation,
after its approval by top management of Respondent? Second, if
Respondent lawfully proceeded with the issuance of the above policy, did
it lawfully refuse to negotiate with the Union concerning "procedures
which management officials . . . will observe in exercising any
authority under this section" (Sec. 6(b)(2)) and/or "appropriate
arrangements for employees adversely affected by the exercise of any
authority under this section by some management officials" (Sec.
6(b)(3))?
This case was initiated by a charge filed on December 14, 1982 (G.C.
Exh. 1(a)), which alleged violations of Secs. 16(a)(1), (5) and (8) of
the Statute. The Complaint and Notice of Hearing issued on March 23,
1983; alleged a violation only of Secs. 16(a)(1) and (5) of the
Statute; and set the hearing for May 18, 1983, pursuant to which a
hearing was duly held on May 18, 1983, in Washington, D.C., before the
undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and were afforded
opportunity to present oral argument. At the close of the hearing, June
20, 1983, was fixed as the date for mailing post hearing briefs, which
time was extended to July 8, 1983, by Order issued June 7, 1983, on the
Motion of Respondent and for good cause shown; and subsequently, on the
Motion of the Charging Party and for good cause shown, was further
extended to July 29, 1983, by Order dated July 1, 1983. Each party has
timely filed a brief received on, or before, July 29, 1983, which have
been carefully considered together with closing arguments. Upon the
basis of the entire record, /3/ including my observation of the
witnesses and their demeanor, I make the following findings and
conclusions:
FINDINGS
1. By letter dated August 31, 1982 (Res. Exh. 2), addressed to Mr.
Vincent L. Connery, National President of National Treasury Employees
Union (hereinafter referred to as "NTEU"), the recognized exclusive
representative, nationwide, of Respondent's employees, with certain
exceptions more fully set forth in Paragraph 5 of the Complaint,
Respondent transmitted a proposed Customs issuance entitled "National
Inspectional Contraband Enforcement Team Policy" (CET). The enclosed
policy was General Counsel Exhibit No. 2. This was to be issued as a
"Manual Supplement".
2. Respondent's covering letter of August 31, 1982, stated, in part,
that:
" . . . This issuance will be implemented September 14, 1982 .
. . ." (Res. Exh. 2).
3. Mr. Phillip Spayd, Chief, Collective Bargaining and Contract
Administration, United States Customs Service, testified, without
contradiction, that the period prior to date of intended implementation,
here August 31 to September 14, is the notice period for NTEU to request
negotiations; that, pursuant to Article 37, Section 4 of the parties'
agreement (Res. Exh. 3), an impact bargaining demand is effected only by
the submission of written proposals (Tr. 62); and that this is the
practice in all cases (Tr. 62). Mr. Spayd further stated that a
proposed issuance is suspended for the duration of the notice period
(here to September 14) or until completion of negotiations (Tr. 76).
4. Mr. Robert M. Smith, in 1982 Chief, Labor Disputes in Fields
Branch of Respondent's Office of Labor Relations and currently Acting
Director, Employment and Compensation, signed Respondent's Exhibit 2 for
Mr. Dana as he was Acting Director of the Office of Labor-Management
Relations on that date (Tr. 42). Mr. Smith testified that "All of our
letters are normally sent to Mr. Connery" (Tr. 42); and that he had the
letter mailed to Mr. Connery. Ms. Diane Flood, who typed Respondent's
Exhibit 2, testified that she placed the letter in a franked envelope,
which had the printed return address of the U.S. Customs Service; that
she either placed the letter on the mail cart (Tr. 90) or she placed it
in the mailbox (Tr. 91); that she did not recall whether she had
personally placed this particular letter in the mailbox or whether she
had placed it on the mail cart (TR. 91, 92); that, by one procedure or
the other, she had "mailed" this letter (Tr. 89); and this letter was
never returned by the Post Office (Tr. 89; see, also, Tr. 78).
5. Mr. Spayd testified that, even though no response had been
received from NTEU by September 14, he waited until September 16, "to
see if something was mailed", and still having no response, called Mr.
Victor G. Weeren, Director of Law Enforcement Liaison, on September 16
and told him that "he could continue implementation, that implementation
which was suspended during the notice period" (Tr. 77). Mr. Spayd on
the same date, September 16, "signed off" by initialing the yellow file
copy (Tr. 60, 61). Mr. Weeren testified that Mr. Spayd told him that,
"the opportunity to bargain had expired and that apparently the Union
chose not to bargain" (Tr. 95, 109). Mr. Weeren further testified that
with that news he "started the machinery in place to have it fully
implemented" (Tr. 95). This meant that this policy issuance first went
to the issuance office to insure that it had the right format; then to
the Chief Counsel; then to the Commissioner's Office for signature;
and then to printing for printing and distribution (Tr. 95). Mr. Weeren
stated that this policy was urgent (Tr. 96, 97); that it was signed by
the Commissioner "within a week" after he received notification that
"NTEU chose not to ask for bargaining" (Tr. 113), i.e., by, or about
September 23, 1982.
6. Mr. Howard F. Swinimer, a Senior Customs Inspector at J. F.
Kennedy Airport, while on assignment as Instructor at the U.S. Customs
Academy, Federal Law Enforcement Training Center, Glynco, Georgia, on
the evening of September 27, 1982, upon his return to Glynco, learned
from associates of the CET policy which they understood was to go into
effect October 1 (Tr. 32). His associates had been shown a copy and had
been told that "the Union had been notified and agreed to the manual
supplement" (Tr. 32).
7. The following day, September 28, 1982, Mr. Swinimer testified
that he obtained a copy of the CET policy and called Mr. John McEleney,
Assistant Director of Negotiations for NTEU who handles labor relation
for NTEU with Customs (Tr. 17), and asked if he were familiar with the
Manual Supplement and whether he had received notice and had negotiated
on it (Tr. 32-33). Mr. Swinimer stated that Mr. McEleney stated that he
had not received a copy of the Manual Supplement, that, so far as he
knew, no one had but " . . . that he would check, he would ask around,
check with other people in the office, see that it might have been
misrouted or something . . ." (Tr. 33) and that he, McEleney would call
back. Mr. Swinimer stated that Mr. McEleney did call back later in the
day and told him no one had any record of having received such a
supplement.
8. Mr. Swinimer testified that he mailed Mr. McEleney a copy of the
Manual Supplement on September 28 (Tr. 38).
9. Mr. McEleney testified that he first learned of the Manual
Supplement when Mr. Swinimer called him on September 28. There is no
dispute that Mr. McEleney called Mr. Robert M. Smith; but there is a
dispute as to the date that he called Mr. Smith. Mr. McEleney testified
that he called Mr. Smith immediately after the call from Mr. Swinimer
(Tr. 19). Mr. McEleney stated that he called Mr. Smith and ". . . asked
him if he knew of the supplement and why he hadn't received notice and
an opportunity to bargain. He explained to me . . . that they had
notified us by letter sometime in August, that the letter had a specific
date by which proposals should be received. That date had come and
gone. And it was their position that we waived our right to bargain on
it. He told me that he didn't know whether they had been put into
effect on October 1, but he would check and find out for me" (Tr.
19-20).
10. Mr. McEleney further testified that after talking to Mr. Smith
he ". . . checked about my office to be certain that there wasn't
something that I overlooked and I didn't discover anything. I then went
down and spoke to Vincent Connery who is our national president and
asked him if he had received a copy of the Manual Supplement that dealt
with contraband enforcement and he told me that he had no recollection
of that, and also checked some of his files to be certain it wasn't
there . . ." (Tr. 20). Mr. McEleney stated that he asked Mr. Smith to
send him a copy" of the document as well as a cover letter that he said
was attached to it" (Tr. 20), which Mr. Smith did (Tr. 20, 21). Mr.
McEleney stated that Mr. Smith called back, either late that day or
first thing the next morning, ". . . and explained that the manual
supplement was not issued, but he believed it was somewhere in the
system and there wasn't any plans to have it implemented on October 1st.
He said he didn't know when it would be implemented" (Tr. 21).
11. Mr. Smith testified that he received a call from Mr. McEleney on
September 30 (Tr. 43, 51); that he was sure of the date, "Because I
wrote a note to the file when I received a call from Mr. McEleney" (Tr.
44); that Mr. McEleney, ". . . told me that he had been speaking to
some of his regional people and that he had a copy of this policy and he
was, wanted to know whether or not we had formally sent it to him . . .
I told him that I would check, ran to the files, pulled out our file and
read to him . . . the letter to Mr. Connery" (Tr. 44); that "I think I
put John on hold at the time, yes, and checked our records" (Tr. 51).
Mr. Smith called Mr. Spayd and subsequently talked to Mr. McEleney and
". . . told John that the policy was on the way to the print shop for
distribution and John again asked what can we do about this. I really
didn't know what we could do about it. He didn't have any suggestions,
nor did I and the conversation pretty much ended" (Tr. 45). Mr. Smith
stated, "When a policy is at the printer, it is implemented as soon as
it comes off the presses. As to a specific exact date, no, I didn't
know that and I don't think anybody did" (Tr. 55); " . . . I told him
(Mr. McEleney) it was signed and at the printer" (Tr. 56).
12. Mr. Connery was asked about a conversation with Mr. John
McEleney at "the end of September, 1982," and testified, in part, as
follows:
"A. Well I recall a discussion and a subsequent brief time
therein John called me, came down to tell me that he wanted to
talk to me about a letter, asked me if I had received a letter
which I had no recollection of receiving and we talked about the
letter. I told him that there was no letter around. We made a
look around the desk area, went all through one of the drawers of
my desk where it might possibly have been. That was it.
"Q. Do you know what the contents of the letter was that you
were looking for?
"A. Well, John told me that there was some matter which I
don't recall at this time.
"Q. Would that have been the contraband enforcement team
policy?
"A. Yes.
"Q. And do you recall about when the conversation took place?
"A. Yes, it was in September of last year" (Tr. 138).
After being handed Respondent's Exhibit 2 (erroneously referred to as
Respondent's Exhibit 1 (Tr. 138)), Mr. Connery stated:
". . . I have no recollection of receiving this before" (Tr.
139).
13. Mr. McEleney testified that in his conversation with Mr. Smith,
either on September 28 or on September 30, he ". . . told him (Smith)
that we were interested in bargaining, that we hand't waived anything
inasmuch as we hadn't received the document" (Tr. 20A); that sometime
in the first part of October, he spoke to Mr. Spayd at the Holiday Inn
in Georgetown and ". . . asked him if he was familiar with issuance and
our request to bargain and if he knew the status and he said he wasn't
aware of the situation. He didn't know the status of the request. He
knew that the matter was being discussed but he wasn't deeply involved
with it since he was involved primarily in negotiations of the national
contract. I asked him if he would check it out and let me know the
status and he told me that he would" (Tr. 21-22); that the following
week, he again spoke to Mr. Spayd who again responded, ". . . that he
didn't know, wasn't aware of what the decision was or if a decision had
been made" (Tr. 22); that he heard nothing further until October 26,
1982, when he received a call from Mr. Smith who stated, " . . . they
had decided they weren't going to bargain and that the manual supplement
had been implemented on October 19th" (Tr. 22, 23).
CONCLUSIONS
The record shows and I find that Respondent mailed the letter of
notification (Res. Exh. 2) to President Connery on August 31, 1982, with
a copy of the proposed Manual Supplement (G.C. Exh. 2). When NTEU
failed to request negotiations within the notice period (September 14,
1982), Respondent, in accordance with established practice, proceeded
with implementation. Department of the Treasury, U.S. Customs Service,
Region 1, Boston, Massachusetts, 1 FLRA No. 49, 1 FLRA 397 (1979)
(hereinafter referred to as the "Region 1" case or decision), which
arose under Executive Order 11491, as amended, involved not only the
same parties-- Customs and NTEU-- but a strikingly similar issue,
namely, timely notice mailed to the Union, no request for negotiations
until after the proposed grooming standards had been implemented, and a
denial of receipt of the notice letter by the Union. In affirming the
Administrative Law Judge's decision, that the Respondent had not
violated sections 19(a)(1) and (6) of the Order when it issued new
grooming standards, the Authority stated, in part, as follows:
"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 mailing notice of the
proposed change to the Union's designated official in Washington,
D.C." (1 FLRA at 339 n.1).
I find the Region 1 decision persuasive. Here, as in Region 1,
Respondent did all that could reasonably be expected in order to provide
adequate, timely notice of the CET policy to NTEU and followed the
established past practice of sending the notice of nationwide policy
issuances to President Connery. (See, also, Res. Exh. 3, Art. 37,
Section 3). Issuance of a nationwide policy is immeasurably more
complex than issuance of a policy change which is not so all
encompassing. Here, after the notice period to NTEU had expired and no
request to negotiate (by the submission of written proposals, pursuant
to Res. Exh. 3, Art. 37, Section 4) had been received, the policy first
went to the issuance office, to insure that the format was proper; then
to the Chief Counsel; then to the Commissioner for signature; and then
to printing for printing and distribution. Prior to issuance, officials
in the various Regions had to be advised. As the CET policy had been
signed by the Commissioner on, or about, September 23, 1982, and
substantial expenditure of money was required for equipment for the
Contraband Enforcement Teams, Respondent committed funds available to it
from its 1982 budget. I have weighed the testimony carefully and
conclude that Mr. McEleney initially called Mr. Smith on September 30,
1982, as Mr. Smith testified, rather than on September 28, 1982, as Mr.
McEleney testified. I reach this conclusion for several reasons.
First, Mr. Smith's recollection of the date was supported by his written
note to the file. Second, Mr. Swinimer, who was a very credible
witness, testified that he mailed a copy of the Manual Supplement (CET)
to Mr. McEleney on September 28. Third, Mr. McEleney made no reference
to the Manual Supplement mailed to him by Mr. Swinimer. Fourth, Mr.
Smith very credibily testified that when Mr. McEleney called him on
September 30, Mr. McEleney told him he "had a copy of the policy."
Fifth, Mr. Connery's testimony is as consistent with one date as the
other. Sixth, Mr. McEleney's testimony as to the sequence of events is
not wholly convincing. Thus, in view of Mr. Swinimer's testimony that
he had been told "the Union had been notified and agreed", which he
relayed to Mr. McEleney, it is more logical that Mr. McEleney would have
contacted President Connery prior to calling Mr. Smith, rather than
after calling Mr. Smith, especially as Mr. Swinimer testified that Mr.
McEleney called back and told him, "no one had any record of having
received such a supplement."
The record shows that Respondent committed FY 82 funds for equipment
sometime after the CET policy issuance was signed and prior to the end
of FY 82-- September 30, 1982. As I find that Mr. McEleney initially
called Mr. Smith on September 30, 1982, I conclude that all of the steps
set forth above, including the expenditure of FY 82 funds, had occurred
prior to Mr. McEleney's call. I fully understand that "implementation"
means, and meant, different things to different people. Thus, to Mr.
Spayd, it meant signing-off by the labor-management relations office
upon expiration of the notice period to NTEU without a request to
negotiate. To Respondent, it meant clearance to proceed with issuance
of the policy, including signature by the Commissioner, the advising of
Regional officials of the forthcoming issuance, commitment of funds,
etc. To NTEU it meant issuance.
In partial agreement with Respondent, I conclude that Respondent did
not violate Secs. 16(a)(5) or (1) of the Statute by the issuance, on
October 16, 1982, of the CET policy (Jt. Exh. 1). However, I do not
agree with Respondent that it lawfully refused NTEU's request to
negotiate impact and implementation pursuant to Sec. 6(b)(2) and/or (3),
either because the policy had been substantially implemented prior to
NTEU's request to negotiate or because NTEU did not, after notice of the
proposed issuance, on September 28, 1982, when Mr. Swinimer called
Mr.McEleney, submit written proposals.
In short, I conclude that Respondent could, and did, lawfully issue
the Manual Supplement with respect to its CET policy. Respondent had
taken all steps to implement this policy prior to NTEU's request to
negotiate except formal issuance, which meant the fixing of an issuance
date, printing and distribution. Ordinarily, in full agreement with the
established practice and the specific provision of the parties'
agreement, /4/ I would concur with Respondent that NTEU did not perfect
a proper impact bargaining request by submitting written proposals
within a reasonable period after conceded notice, on September 28, 1982,
of Respondent's CET policy (Respondent's Brief, pp. 26-27); however,
under the circumstances of this case I conclude that Respondent
effectively precluded the submission of written proposals and
accordingly, Respondent may not assert NTEU's failure to submit written
proposals as a defense to its refusal to negotiate. Thus, as Mr.
McEleney testified, Mr. Smith told him on September 30 that, ". . . it
was their (Respondent's) position that we (NTEU) waived our right to
bargain on it" (Tr. 20). Mr. Smith's testimony is wholly consistent and
confirms Mr. McEleney's testimony. Mr. Smith testified that he read to
Mr. McEleney the letter to Mr. Connery; that he called Mr. Spayd and ".
. . we felt that we gave Mr. McEleney reasonable advance notice and an
opportunity for bargaining and he did not request negotiations and there
wasn't anything we could do. It was out of our hands" (Tr. 46); that
after his first conversation with Mr. McEleney he talked to Mr. McEleney
again and ". . . told John that the policy was on the way to the print
shop for distribution and John again asked what can we do about this. I
really didn't know what we could do . . . . He didn't have any
suggestions, nor did I . . . " (Tr. 45).
On September 30, 1982, when NTEU requested impact negotiations,
Respondent had not issued the Manual Supplement relative to its CET
policy and with notice that NTEU asserted that Respondent's notice of
August 31, 1982, had not been received, Respondent refused to negotiate.
Unlike the Region 1 case, Respondent's CET policy had not been fully
implemented at the time NTEU demanded impact negotiations and
Respondent's obligation to negotiate was neither satisfied nor
extinguished by its notice of August 31, receipt of which NTEU
specifically denied. /5/ Upon notice of the non-receipt of the August
31, 1982, notification, Respondent, prior to implementation of its CET
Manual Supplement, was obligated to treat NTEU's demand to negotiate
after actual notice, /6/ on September 28, 1982, as a timely demand to
negotiate prior to implementation. This, Respondent refused to do and
asserted that NTEU had already waived its right to negotiate. Because I
find that Respondent had lawfully proceeded with implementation of its
CET Manual Supplement, /7/ NTEU's right to negotiate on, and after,
September 30, 1982, was more limited than if it had requested
negotiations during the notice period. NTEU must accept the CET Manual
Supplement /8/ and its right to negotiate, and Respondent's obligation
to negotiate, is limited essentially to "appropriate arrangements for
employees adversely affected," pursuant to Sec. 6(b)(3) of the Statute,
although there may also be "procedures which management . . . will
observe," pursuant to Sec. 6(b)(2) of the Statute, subject to
negotiation notwithstanding that the form of the Manual Supplement was a
fait accompli as of September 30, 1982. Although NTEU testified as to
areas of interest in impact bargaining, no particular proposal was
presented, and I express no opinion whatever concerning the
appropriateness of any bargaining demand or of any expressed area of
interest.
Having found that Respondent refused to negotiate, prior to
implementation, on impact of its CET Manual Supplement, after notice of
the non-receipt of Respondent's prior notice, in violation of Secs.
16(a)(5) and (1) of the Statute, it is recommended that the Authority
issue the following:
ORDER
Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and
Sec. 2423.29 of the Regulation, 5 C.F.R. 2423.29, the Authority hereby
orders that the U.S. Customs Service shall:
1. Cease and desist from:
(a) Refusing to consult or negotiate in good faith with the
National Treasury Employees Union concerning the impact of its
National Inspectional Contraband Enforcement Team Policy, issued
October 19, 1982, as Manual Supplement No. 3290-04.
(b) In any like or related manner interfering with,
restraining, or coercing unit employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request and perfection of an impact bargaining
request, as required by the parties' current collective bargaining
agreement, meet and consult or negotiate in good faith with the
National Treasury Employees Union concerning the impact of its
National Inspectional Contraband Enforcement Team Policy, issued
October 19, 1982.
(b) Post at each of its facilities, including its Headquarters
Office in Washington, D.C. and each Regional Office, and at all
places where notices to employees of the U.S. Customs Service are
customarily posted, copies of the attached Notice, on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by the Commissioner, U.S.
Customs Service, and they shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. The
Commissioner shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to Sec. 2423.30 of the Regulation, 5 C.F.R.
2423.30, notify the Regional Director of Region III, Federal Labor
Relations Authority, whose address is: 1111 18th Street, NW.,
Room 700, P.O. Box 33758, Washington, DC 20033-0758, in writing
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
William B. Devaney
Administrative Law Judge
Dated: August 8, 1983
Washington, DC
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to consult or negotiate in good faith with the
National Treasury Employees Union concerning the impact of our National
Inspectional Contraband Enforcement Team Policy, issued October 19,
1982, as Manual Supplement No. 3290-04.
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
Statute.
WE WILL, upon request and perfection of an impact bargaining request,
as required by our current collective bargaining agreement, meet and
consult or negotiate in good faith with the National Treasury Employees
Union concerning the impact of our National Inspectional Contraband
Enforcement Team Policy, issued October 19, 1982.
(Agency or Activity)
Dated: By: (Signature)
This Notice must remain posted for sixty (60) consecutive days from
the date of posting and must not be altered, defaced, or covered by any
other material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region III,
whose address is: 1111 18th Street, NW., Room 700, P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8507.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) of the Statute provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Sections 7116(a)(5) will be referred to,
simply, as Sec. 16(a)(5).
/3/ Respondent has filed a Motion to Correct Transcript, to which no
opposition was filed, which I find wholly meritorious and hereby grant.
The transcript is hereby corrected as fully set forth in the Appendix
hereto.
/4/ Article 37, Section 4, provides, in part, that:
"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) . . . ." (Res.
Ex. 3).
I am aware that the Agreement was effective June 30, 1980; was for a
term of 2 years; and that, by its terms the Agreement expired June 30,
1982; however, as the Authority held in U.S. Nuclear Regulatory
Commission, 6 FLRA No. 9, 6 FLRA 18 (1981),
". . . In the Authority's opinion, the purposes and policies of
the Statute are best effectuated by a requirement that existing
personnel policies, practices, and matters affecting working
conditions continue, to the maximum extend possible, upon the
expiration of a negotiated agreement, absent an express agreement
to the contrary or unless modified in a manner consistent with the
Statute. Such a result fosters stability in Federal
labor-management relations, which is an underlying purpose of the
Statue . . . ." (6 FLRA at 20).
See, also, Internal Revenue Service, Ogden Service Center, et al.
FLRA Nos. 77A-40 and 77A-92, 6 FLRC 310 (1978). General Counsel's
contention that because Article 37 concerns permissive subjects of
bargaining, Article 37 did not survive the expiration of the contract
(Tr. 67), is rejected. I am not aware of any Authority decision that
has treated this question; but I am aware that the Council in the Ogden
Service Center, case, supra, did. There, the Council stated, in part,
as follows:
"Of course, just as in the situation where no collective
bargaining agreement has previously existed, agency management,
upon the expiration of a negotiated agreement, retains the right
to unilaterally change provisions contained therein relating to
'permissive' subjects of bargaining, i.e., those matters which are
excepted from the obligation to negotiate by section 11(b) of the
Order, and either party may change matters which are outside the
scope of such obligation under section 11(a) of the Order.
Consequently, absent the parties' agreement to the contrary, the
parties are not obligated to maintain those matters upon the
expiration of the agreement. (Footnote omitted) 6 FLRC at 319;
see, also 6 FLRC at 321-322).
Although I have serious reservations that Article 37 contains
"permissive" subjects of bargaining within the meaning of Sec. 6(b)(1)
of the Statute, and I expressly make no such determination, even if it
were assumed that Article 37 constituted a permissive subject of
bargaining and if it were further assumed that the Council's statement
were applicable under the Statute, nevertheless, Mr. Spayd testified
that, "Both sides have proposals to amend Article 37 at this time . . ."
(Tr. 79) which does not indicate that either party had refused to
maintain these provisions pending completion of negotiations. To the
contrary, Respondent testified that it was complying with all provisions
of the Agreement, notwithstanding its expiration (Tr. 64), and Mr.
McEleney, NTEU's Chief negotiator, presented no testimony to the
contrary. Nor, for that matter, neither Respondent nor NTEU presented
any evidence or testimony concerning the notice given, i.e., whether to
terminate the Agreement or to notify the agreement, (Article 40, Section
B) or whether there was any written agreement to extend the agreement
pursuant to Article 40, Section 2C. Indeed, where, as here, the parties
are renegotiating, as the Council also stated in Ogden Service Center,
supra,
". . . a party may not effect changes in otherwise negotiable
personnel policies and practices and matters affecting working
conditions without first providing the other party with sufficient
notice of its intent to implement the change . . . so that the
other party is afforded a reasonable opportunity . . . to invoke
the processes of the Panel . . . ." (6 FLRC at 332).
Accordingly, since the parties had not negotiated to impasse,
Respondent had not refused to bargain as to Article 37 because of any
perceived management right, and NTEU had not given notice of its intent
to implement any change of Article 37, NTEU could not unilaterally
change the otherwise negotiable personnel policies and practices and
matters affecting working conditions as described in Article 37. I
conclude that Article 37 continued, despite the expiration of the
Agreement, until terminated or modified in a manner consistent with the
Statute.
/5/ Collective bargaining is a continuing process, Conley v. Gibson,
355 U.S. 41 (1957), and, notwithstanding language of Judge Mason in the
Region 1 case, I am not fully persuaded that the duty to bargain as to
6(b)(3) is wholly extinguished by lawful implementation. For example, a
union might conclude that a proposed management action would have no
adverse effect and, accordingly, decline to request negotiation; but
thereafter become aware of serious adverse impact and long after
implementation and request negotiations. cf., Library of Congress, 9
FLRA No. 51, 9 FLRA 421 (1982); Library of Congress, 9 FLRA No. 52, 9
FLRA 427 (1982). Nevertheless, I neither reach nor decide this issue,
since, here, Respondent had not fully implemented its CET policy at the
time NTEU demanded negotiations. In accordance with the Region 1
decision, I hold merely that Respondent satisfied its obligation to give
timely notice by its notice of August 31, 1982, properly mailed to the
designated official of NTEU; but Respondent was obligated to negotiate,
prior to issuance of the CET Manual Supplement, upon notice of
nonreceipt of the August 31 notice and the demand of NTEU for
negotiations.
/6/ The manner of giving notice is, of course, wholly relegated to
the parties. In view of the continuing problems experienced by the
parties, as evidenced by this case and by the Region 1 case, each party
may be well advised to consider the mutual benefit of the use of
registered mail, at least with respect to policy issuances having
nationwide scope.
/7/ Normally, the appropriate remedy for a refusal to negotiate prior
to implementation (issuance) of a policy change would be withdrawal of
the change. I do not hold, nor should it be inferred by anything
contained herein, that even substantially completed "implementation",
standing alone, warrants the issuance (implementation) of such change
without satisfaction of the obligation to negotiate, pursuant to notice
given prior to implementation. I hold that Respondent could, and did,
lawfully issue its CET policy, notwithstanding its unlawful refusal to
negotiate, only because of the coalescence of all the factors present in
this case, including, inter alia: timely notice to the Union;
Respondent's right to proceed with required steps to implement the
change after passage of the notice period without request by the Union
for negotiations; the disruptive impact of withdrawal of the policy;
and the stipulation by the General Counsel that a status quo ante remedy
was not sought. Indeed, the record shows that the areas of concern of
NTEU relate to matters which can fully be addressed by present
negotiations.
/8/ Respondent was prepared to show that a status quo ante remedy was
inappropriate, and, indeed, presented some evidence and testimony to
this effect. General Counsel stipulated that no such remedy was sought
and, for this reason, I rejected Respondent's further proffer of proof.