25:0248(18)CA - Customs Service, Washington, DC and Customs Service, Pacific Region and NTEU -- 1987 FLRAdec CA
[ v25 p248 ]
25:0248(18)CA
The decision of the Authority follows:
25 FLRA No. 18
UNITED STATES CUSTOMS SERVICE
WASHINGTON, D.C., AND UNITED STATES
CUSTOMS SERVICE, PACIFIC REGION
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION
Charging party
Case No. 8-CA-40453
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's decision filed by the
Respondents. The complaint alleged that on July 1, 1984 the United
States Customs Service, Washington D.C., and United States Customs
Service, Pacific Region (Respondents) unilaterally changed working
conditions by instituting a Radio Preliminary Entry Test (RPET) program
for vessels in the Pacific Region and failed to bargain with the
National Treasury Employees Union (Union) regarding the impact and
implementation of the change. The complaint further alleged that
Respondents' conduct violated section 7116(a)(1) and (5) of the Statute.
We conclude, for the reasons discussed below, that the Respondents
violated the Statute by refusing to negotiate with the Union.
II. Facts
Regulations of the United States Customs Service provide for vessels
to gain preliminary entry upon arriving at a port in order to begin
loading or unloading cargo and/or passengers. See 19 C.F.R. Section 4.2
et seq. (1986). Prior to July 1, 1984, under the preliminary entry
procedure a Customs Inspector would board the vessel when it arrived at
a port. Once on board, the Inspector would review the documentation
required for entry and perform other duties to ensure that the vessel,
its crew and cargo were appropriate for entry.
On May 9, 1984 Steve Miller, Chief of Labor-Management and Employee
Relations for the Pacific Region, notified the Union that an RPET
program for vessels would be implemented on May 30, 1984. The new
program involved a change in the procedure for granting preliminary
entry to a vessel arriving at a port. Under the changed procedure the
vessel agents or Customhouse Brokers could request, at least 24 hours
before arrival, radio preliminary entry of a vessel by presenting a form
to the appropriate Customs Marine Office. Under the program, the
Pacific Region would conduct a one-year test allowing masters of vessels
meeting certain conditions to request and receive preliminary entry by
means of modern radio-telecommunications equipment and/or electronic
transmission of data. Upon approval of the application for radio
preliminary entry, a signed RPET permit is returned to the vessel agent
or Customhouse broker. The RPET permit allows the vessel to commence
operations without the physical boarding by a Customs Inspector.
In a letter dated May 17, 1984 the Union advised Miller that it
wished to negotiate over the substance, impact and implementation of the
new program. The Union also requested documentary information regarding
RPET and proposed that the directive not be implemented prior to
completing negotiations (Proposal 1). Management replied to the Union
on June 4, 1984, stating that (1) the Union's proposal not to implement
the plan was nonnegotiable; (2) RPET would be implemented on July 1,
1984 since no other proposals were submitted; and (3) no documentary
information was available since no special studies were conducted about
RPET.
On June 8, 1984 the Union repeated its request for information and
disputed management's claim of nonnegotiability. The union also
proposed that the new program not be implemented pending a study to be
carried out by the union within six months, to evaluate the impact of
RPET on unit employees (Proposal 2); implementation be withheld pending
clarification of the goals for RPET and guidelines for an analysis of
the test's results (Proposal 3); unit employees not be disciplined for
errors resulting from RPET (Proposal 4); and unit employees not be
evaluated on the basis of errors arising from RPET (Proposal 5). On
June 13, 1984 Miller notified the Union that the agency deemed the
proposals nonnegotiable because they either had no valid impact on
employees, or would interfere with the agency's right to discipline
employees. /*/ The RPET program was instituted on July 1, 1984.
III. Administrative Law Judge's Decision
The Judge concluded that the RPET program was instituted by the
Respondents without affording the Union an opportunity to bargain
regarding its impact and implementation. The Judge also concluded that
the discontinuation of the practice and condition of employment whereby
Customs Inspectors boarded the vessels upon entry, with the attendant
duties associated with such boarding, constituted a change the impact of
which was more than de minimis in nature.
The Judge found that changes involving the work performance of
Customs Inspectors arising from the implementation of RPET include the
following: (1) it takes Inspectors an additional 2-4 hours to "outturn"
the ship's manifest after it is received; (2) Custom Inspectors no
longer have an opportunity to observe crew and cargo and have no control
over either since they are not on the ship when crew and cargo are
discharged; (3) the Inspectors cannot search a crew or visitors who may
be bringing in articles illegally upon the ship's arrival and then make
necessary arrests; (4) Inspectors can no longer make seizures of
contraband or undeclared currency and write up necessary penalties
because they are not on board; and (5) Inspectors are no longer in a
position to make observations or judgments relating to the
documentation, the crew, or such vessel problems causing pollution so as
to aid other Customs officials in enforcement. As a result of the new
entry procedure the Customs Inspectors stood to lose 10 percent to 25
percent of their overtime pay. A new Employee Performance Appraisal
System (EPAS) was also instituted by the agency for Customs Inspectors.
The Judge further found that: (1) the four proposals submitted by
the Union on June 8, 1984 were negotiable; (2) the matter was not
previously negotiated by the parties or covered in the national and
supplemental agreements; and (3) section 7116(d) of the Statute does
not bar the Union's unfair labor practice charge because the Union's
previous negotiability appeal did not involve the same issues raised in
the unfair labor practice charge.
Accordingly, the Judge found that the Respondents violated section
7116(a)(1) and (5) of the Statute.
IV. Positions of the Parties
The Respondents contend in their exceptions that the Judge erred in
concluding that section 7116(d) does not preclude the filing of the
Union's unfair labor practice charge. Respondents also except to the
Judge's conclusions that the changes in working conditions had effects
on employees which were more than de minimis and that the Union's
proposals concerning the RPET program were negotiable.
The General Counsel filed a Brief Answering Exceptions to the
Administrative Law Judge's Decision which supported the Judge's findings
and conclusions.
V. Analysis
A. Section 7116(d)
We find that the unfair labor practice complaint in this case is not
barred by the provisions of section 7116(d) of the Statute. The
procedure for resolving negotiability disputes set forth in section
7117(c) of the Statute is not an appeals procedure within the meaning of
section 7116(d). Section 7116(d) is intended to preclude parties from
raising as an unfair labor practice issues which can properly be raised
under statutory appeals procedures such as procedures involving the
Merit Systems Protection Board, Department of Justice, Immigration and
Naturalization Service, 17 FLRA 227, 235 n. 2 (1985), or the Equal
Employment Opportunity Commission, Department of Defense, Defense
Mapping Agency Aerospace Center, St. Louis, Missouri, 17 FLRA 71, 79
(1985). Negotiability issues, on the other hand, may be raised under
the section 7117 negotiability procedure and under the section 7118
unfair labor practice procedure; a party filing under both procedures
may select to have one processed first. See sections 2423.5 and 2424.5
of the Authority's Rules and Regulations. See also National Treasury
Employees Union and Department of Health and Human Services, Region VII,
Office of Human Development Services, 17 FLRA 589 (1985). Accordingly,
we reject the Respondents' contention that section 7116(d) bars our
consideration of this unfair labor practice complaint.
B. Nature and Extent of the Effect or Reasonably
Foreseeable Effect of the Change
In Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, AFL-CIO,
Local 1760, 24 FLRA No. 42 (1986), we reassessed and modified the de
minimis standard previously used to identify changes in conditions of
employment that require bargaining. We stated that in order to
determine whether a change in conditions of employment requires
bargaining, we would carefully examine the pertinent facts and
circumstances presented in each case; and that in examining the record,
principal emphasis would be placed on such general areas of
consideration as the nature and extent on conditions of employment. We
also stated that equitable considerations would be taken into account in
balancing the various interests involved; that the number of affected
employees and the parties' bargaining history would be given limited
application; and that the size of the bargaining unit would no longer
be applied.
The facts in this case clearly show that the implementation of the
Radio Preliminary Entry Test Program had a reasonably foreseeable effect
on bargaining unit employees which gave rise to a duty to bargain. The
Agency failed to meet its statutory obligation when it refused to meet
with the Union and afford it an opportunity to negotiate on appropriate
accommodations for employees adversely affected by the RPET program.
We disagree with the Agency's assertion that the implementation of
the RPET program involved only an insignificant impact on Customs
Inspectors. The record reveals that Customs Inspectors, under the RPET,
would no longer board entering vessels to conduct preliminary entry
evaluations. An important aspect of the preliminary entry procedure
prior to the July 1, 1984 change was the physical inspection of crew,
cargo and ship documentation by Customs Inspectors. Inspectors were
required to grant or deny entry based on their observations and personal
judgments concerning these items and were evaluated on how well they
performed these duties. Additionally, when inspectors were called to
board ships outside of their regular work hours, it was a condition of
their employment that overtime was earned for work performed during
those non-regular periods. With the change in this procedure there was
a foreseeable loss of 10 per cent to 25 percent overtime for at least
250 Customs Inspectors.
C. The Negotiability of the Proposals
Having resolved the preceding two issues, we now turn to the agency's
argument that it did not commit an unfair labor practice because the
four proposals over which the Union sought to bargain (discussed at p.2)
are nonnegotiable. See, for example, Department of the Air Force, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 22 FLRA
No. 4 (1986). For the following reasons, we find that one of the four
proposals is negotiable. Therefore, the agency did commit an unfair
labor practice when it failed to bargain on the negotiable proposal.
The record indicates that in carrying out that part of its mission
which is to enforce customs and related laws the Agency has chosen to
implement the RPET program. Such a decision constitutes the choice of
the means of performing work within the meaning of section 7106(b)(1) of
the Statute. See National Treasury Employees Union and U.S. Customs
Service, Region VII, San Francisco, California, 2 FLRA 255 (1979).
Proposal 2 provides that the implementation of RPET be withheld
pending a study to be carried out by the Union within six months.
Consistent with the Authority's decision in U.S. Customs Service, Region
VII, 2 FLRA 255, 261-62 (1979), we conclude that the proposal is
negotiable. Proposal 2 is not intended to preclude the Agency from
carrying out the proposed RPET program, but merely delays the
implementation pending a Union study to be completed within six months.
See American Federation of Government Employees, AFL-CIO, Local 1999 and
Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New
Jersey, 2 FLRA 153 (1979), enforced sub nom. Department of Defense v.
FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom., AFGE v.
FLRA, 445 U.S. 945 (1982). It does not interfere with management's
substantive right to implement the RPET. See National Treasury
Employees Union and Department of the Treasury, 24 FLRA No. 54 (1986).
In agreement with the Agency, however, we find that proposal 3 is
nonnegotiable to the extent that it requires the establishment of
guidelines for the eventual analysis of test results prior to actual
commencement of the test program itself. That is, the proposal does not
merely obligate the agency to provide the union with any existing
guidelines, but rather to actually develop guidelines before
implementing the RPET. In this circumstance, the agency is prevented
from deciding to develop guidelines during or after implementation of
the RPET or from deciding not to develop guidelines at all. The
proposal therefore interferes with the Agency's right to determine how
the RPET will be implemented. As such it directly interferes with
managementS determination to institute the RPET program in violation of
management's right to determine the "methods" and "means" of performing
the Agency's work under section 7106(b)(1). See International
Organization of Masters, Mates and Pilots and Panama Canal Commission,
13 FLRA 508, 510 (1983) (Union Proposals 3 and 4).
Similarly, proposals 4 and 5 are outside the duty to bargain because
they would substantively limit management's authority. Proposal 4, by
eliminating as grounds for discipline employee errors in implementing
the RPET program, directly interferes with management's right to
discipline under section 7106(a)(2)(A). See American Federation of
Government Employees, Local 1822, AFL-CIO and Veterans Administration
Medical Center, Waco, Texas, 9 FLRA 709 (1982). Proposal 5, by
precluding management from evaluating employees on the basis of errors
arising from the RPET program, effectively determines the content of the
performance standards management will use in appraising those employees
and directly interferes with management's right to direct employees and
assign work under section 7106(a)(2)(A) and (B) of the Statute. See
Department of Health and Human Services, Social Security Administration
v. FLRA, 791 F.2d 324 (4th Cir. 1986), reversing National Federation of
Federal Employees, Council of Consolidated SSA Locals and Department of
Health and Human Services, Social Security Administration, 17 FLRA 657
(1985) (Proposal 1). Finally, because Proposals 3, 4 and 5 constitute
substantive limitations on management's rights, they are not procedures
under section 7106(b)(2). Moreover, because they would totally abrogate
management's rights, they are not "appropriate arrangements" under
section 7106(b)(3) of the Statute. See American Federation of
Government Employees, Local 1760, AFL-CIO and Department of Health and
Human Services, Social Security Administration, 23 FLRA No. 21 (1986)
(Union Proposals 2-6).
VI. Conclusion
Accordingly, we find that the Agency violated section 7116 (a)(1) and
(5) of the Statute when it failed to bargain with the Union on a
negotiable proposal concerning the impact and implementation of the
RPET.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is hereby ordered that the United
States Customs Service, Washington, D.C. and the United States Customs
Service, Pacific Region, shall:
1. Cease and desist from:
(a) Unilaterally instituting the Radio Preliminary Entry Test in the
Pacific Region, without first affording the National Treasury Employees
Union, the employees' exclusive bargaining representative, an
opportunity to negotiate with respect to the procedures to be observed
in implementing such program and appropriate arrangements for employees
adversely affected thereby.
(b) In any like or related manner interfering with, restraining or
coercing its 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, bargain with the National Treasury Employees Union,
the employees' exclusive bargaining representative, with respect to
procedures and appropriate arrangements for employees adversely affected
by the implementation of the Radio Preliminary Entry Test Program.
(b) Post at the Pacific Region facilities, wherever bargaining unit
employees are located, 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 a Regional Commissioner and shall be
posted and maintained by him/her for 60 consecutive days thereafter, in
conspicuous places where Notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that said 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 VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply therewith.
Issued, Washington, D.C., January 20, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Dissenting Opinion of Chairman Calhoun -- Proposal 2
I agree with the analysis and conclusions discussed above in sections
V.A. and V.B. As to the negotiability of the proposals, discussed in
section V.C., I concur in the determination that Proposals 3, 4 and 5
are outside the duty to bargain. I respectfully disagree, however, with
my colleagues' analysis of Union Proposal 2 and find that in certain
circumstances the provision directly interferes with management's rights
under section 7106(a) of the Statute.
Proposal 2 provides for a delay in the implementation of the RPET
program for a period of up to six months. The proposal acts as an
absolute bar to implementation until the Union completes its study, even
where the Agency determines that implementation before that time is
necessary. For example, if the Agency decided that its mission
accomplishment required immediate implementation of the RPET program, it
is my view that the provision would prevent that necessary action and
thus directly interfere with a substantive right reserved by section
7106(a)(1) to agency discretion. It is by definition not a negotiable
procedure under section 7106(b)(2). As I stated in my opinion in
National Treasury Employees Union and Department of the Treasury, 24
FLRA No. 54 (1986), the Agency's right to implement a new program to
accomplish its mission in the most efficient and effective manner
necessarily includes the right to determine when to implement the new
program. See National Treasury Employees Union v. FLRA, 691 F.2d 553,
563 (D.C. Cir. 1982). Moreover, because the proposal substantially
limits and abrogates management's rights, it is not a negotiable
procedure under section 7106(b)(2) or an appropriate arrangement under
section 7106(b)(3) of the Statute.
Issued, Washington, D.C., January 20, 1987.
/s/ Jerry L. Calhoun, Chairman
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 unilaterally change conditions of employment by
instituting the Radio Preliminary Entry Test Program in the Pacific
Region, without first affording the National Treasury Employees Union,
the employees' exclusive bargaining representative, an opportunity to
negotiate with respect to the procedures to be observed in implementing
such program and appropriate arrangements for employees adversely
affected thereby.
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, bargain with the National Treasury Employees
Union, the employees' exclusive bargaining representative, with respect
to procedures and appropriate arrangements for employees adversely
affected by the implementation of the Radio Preliminary Entry Test
Program.
(Activity)
Dated: . . . By: Regional Commissioner
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 VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071, and whose telephone number is: (213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 8-CA-40453
UNITED STATES CUSTOMS SERVICE
WASHINGTON, D.C. and UNITED STATES
CUSTOMS SERVICE, PACIFIC REGION
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Alfred A. Suarez, Esquire
For the Respondent
John R. Pannozzo, Esquire
Gerald Cole, Esquire
For the General Counsel
Carol Perkins
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
A hearing in the above-entitled case was held before the undersigned
on April 19, 1985 at Los Angeles, California. The Complaint and Notice
of Hearing was issued on January 31, 1985 by the Regional Director for
the Federal Labor Relations Authority, Los Angeles, California.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7171, et seq. (herein called the Statute). It is
based on a First Amended Charge (filed on January 29, 1985 by National
Treasury Employees Union (hereby called the Union) against United States
Customs Service, Washington, D.C. and United States Customs Service,
Pacific Region (herein called Respondents).
The Complaint alleged, in substance, that on or about July 1, 1984
Respondents unilaterally changed working conditions by instituting a
radio preliminary entry test program for vessels in the Pacific Region
and failed to bargain with the Union re the impact and implementation
thereof -- all in violation of Section 7116(a)(1) and (5) of the
Statute.
Respondents' Answer, dated February 21, 1985, admits the institution
of a radio preliminary entry test program on the alleged date, but
denies the commission of any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed which have been
duly considered. /1/
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is,
the exclusive representative in a national consolidated unit of all
non-professional employees assigned to the Headquarters Office and
Regions I through VII of the U.S. Customs Service, excluding all
professional employees and other specified classifications.
2. Respondents' Pacific Region, /2/ which is involved in this
proceeding, is composed of the ports in Los Angeles and San
Francision/Oakland, California, in Portland, Oregon, in Seattle,
Washington, and in Hawaii.
3. About 100 Customs Inspectors are attached to the Los Angeles
District and about 150 Customs Inspectors are employed at the San
Francisco port.
4. At all times material herein Respondent U.S. Customs Service and
the Union have been, and still are, parties to a collective bargaining
agreement covering the employees in the aforesaid nationwide unit,
inclusive of the employees in Respondent Pacific Region.
5. Regulations of the United States Customs Service provide for
vessels, foreign or domestic, to gain preliminary entry upon arriving at
a port in order to begin loading or unloading cargo and/or passengers.
Both time and money are saved by the use of this procedure. If
preliminary is not requested, the vessel must wait 24-48 hours after its
arrival for formal entry in order to commence said operations or other
transactions.
6. Prior to July 1, 1984 under the preliminary entry procedure a
Customs Inspector would board the vessel when it arrived at a port.
After boarding the vessel the Inspector reviewed the documentation
required for this entry. There are two complete manifests on board each
vessel, and a manifest is needed for each foreign loading port. About
40% of vessel entries were submitted by the Customhouse broker at the
pier. The documents to be reviewed by the Customs Inspector include the
following:
(a) Master's Oath, listing the name of the vessel, where built,
vessel owner and the operator.
(b) General Declaration
(c) Ship's Store's List, showing provisions on board, as food,
alcoholic beverages, tobacco.
(d) Crew's Effects, listing articles belonging to crew members
who wish to land any of same.
(e) Crew's List, stating names, dates, and passport numbers of
individuals on baord.
The Customs Manifest, which is part of the documentation, lists the
name of the vessel, ports of loading and discharge, names of the shipper
and consignee, bills of lading. /3/ container numbers, and a
description of merchandise.
7. One of the duties of the Customs Inspector is to "outturn the
manifest". This requires him to check the manifest with the bills of
lading, and he must request that delivery orders on bills of lading left
open be sent to Customs Office for delivery to a government warehouse.
While on board the vessel the Inspector will check the load line and
complete its certificate, check the water pollution certification and
the ship's register. He will seal up bonded stores -- liquor and
tobacco items -- and observe individuals so as to make judgments
regarding them. The Inspector may suspect crew members come from
narcotic source countries and then have them checked out as possible
drug offenders. He may check the cargo, take tank metages
(measurements) of fuel, make changes required to the cargo manifest as
on the bill of lading or re the port. The Customs Inspector is present
during the unloading of the merchandise. Then he returns to the office
on the pier with the manifest and commences the releasing of the
merchandise.
8. By letter dated May 9, 1984 Steve F. Miller, Chief of
Labor-Management and Employee Relations for the Pacific Region notified
Carol Perkins, Assistant General Counsel of the Union that a Radio
Preliminary Entry Test (RPET) Program for vessels would be implemented
on May 30, 1984. /4/ The new program involved a change in the procedure
for granting preliminary entry to a vessel arriving at a port. Under
the changed method of entry the vessel agents or Customhouse Brokers may
request, at least 24 hours before arrival, radio preliminary entry of a
vessel by presenting a form to the appropriate Customs Marine Office.
The Pacific Region, under the Plan, would conduct a one-year test
allowing masters of vessels meeting certain conditions to request and
receive preliminary entry by means of modern radio-telecommunications
equipment and/or other electronic transmission of manifest data.
9. Under the changed procedure for preliminary entry of a vessel the
Customs Inspector no longer boards the vessel. Upon approval of the
application for radio preliminary entry a signed RPET permit will be
returned to the vessel agent or Customhouse Broker. Formal entry of the
vessel is required within 48/24 hours of the actual arrival time of the
vessel.
10. In a letter dated May 17, 1984 Union representative Perkins
advised Miller that the Union wished to negotiate the substance, impact
and implementation of the new program -- RPET. Further, the Union
requested all documentary information re RPET, and it proposed that the
directive not be implemented prior to completing negotiations.
11. Management replied to Perkins in a letter dated June 4, 1984 in
which it was stated (a) the proposal by the Union not to implement the
Plan is not negotiable, (b) since no other proposals were submitted by
the Union, RPET would be implemented on July 1, 1984, (c) no documentary
information was on hand since no special studies were conducted re RPET.
12. Perkins replied to Miller by letter dated June 8, 1984 wherein
she repeated a request for informational briefing and disputed
management's claim of non-negotiability. The letter also proposed that
(a) the new program not be implemented pending a six month study by the
Union to evaluate the impact on unit employees of RPET, (b)
implementation be withheld pending clarification of the goals for RPET
and guidelines for an analysis of the test's results, (c) unit employees
not a disciplined for errors resultant from RPET, (d) unit employees not
be evaluated on basis of errors arising from RPET.
13. Under date of June 13, 1984 Miller notified the Union that it
deemed the latter's proposals to be outside the agency's duty to
negotiate; that the proposals either had no valid impact on employees,
or would interfere with the agency's right to discipline employees.
Accordingly, Management intended to begin RPET on July 1, 1984.
14. On June 29, 1984 the Union filed a negotiability appeal with the
Federal Labor Relations Authority based on 'respondents' refusal to
negotiate and its declaration that the impact and implementation
proposals by the Union were non-negotiable. /5/ The Authority issued an
Order Dismissing Petition For Review on August 29, 1984 based on its
determination that the Union's petition for review was untimely filed.
Finding no extraordinary circumstances warranting reconsidering its
order of August 19, the Authority denied a Motion For Reconsideration on
October 24, 1984.
15. RPET was instituted on July 1, 1984. Between March 1, 1985 and
April 19, 1985, between 75-100 ships have used this procedure at the San
Francisco port. At said port about 50% -- 75% of vessels utilizing
preliminary entry are doing so through RPET, and one-half of them during
non-regular hours, i.e., before 8:00 a.m. or after 5:00 p.m. Record
facts show that in the Los Angeles District ships have made use of RPET
about 240 times.
16. Changes involving the work performance of the Customs Inspector,
arising from the implementation of RPET, include the following:
(a) Prior to RPET the Customs Inspector "outturned" the manifest in
one or two hours since he had posted all entries or rung up the
manifest. He accomplished this task immediately or the next business
day. Under RPET the Inspector does not have the manifest at the time of
unloading, and thus it takes 4-6 hours to "outturn" the manifest when he
receives it.
(b) Prior to RPET the Customs Inspector was able to observe the crew
and cargo upon boarding the vessel. Under RPET he had no control over
either crew or cargo since he was not on the ship when it discharged
either.
(c) Prior to RPET the Customs Inspector was in a position, by reason
of his presence on board a vessel, to make seizures. In so doing he
could prevent people from removing alcoholic beverage or he might seize
any article that was removed from the vessel.
17. The overtime pay granted Customs Inspectors is paid by the
carrier of the merchandise. It is based on periods, i.e., if an
Inspectors works 5 p.m. to 6 p.m. he gets one period; 5 p.m. to 8 p.m.
he receives two periods; 5 p.m. to 10 p.m. he gets three periods; and
5 p.m. to 12 a.m. he gets four periods. A period constitutes one-half
day's pay. In some instances the Customs Inspector might work around
the clock. Record facts show that, as a result of the new entry
procedure implemented in July, 1984, the Customs Inspectors have lost
overtime pay. /6/ Record facts show that about 10% of overtime pay has
been lost by the Inspectors in the Los Angeles District. Further, that
the Customs Inspectors in the San Francisco port suffered a loss of 10%
-- 15% overtime pay due to RPET program begin implemented thereat.
18. A new Employee Performance Appraisal System (EPAS) was
instituted by Respondents for Customs Inspectors which became effective
on August 1, 1984 and was to continue to July 31, 1985. (G.C. Exh. 8).
It provided for five overall Summary Rating: (a) Outstanding, (b)
Highly Successful, (c) Successful (d) Marginal and (e) Unacceptable.
Included in the EPAS is the "Annual Performance Plan and Appraisal,"
which lists various Performance Elements and Subelements as well as
Performance Standards of "Acceptable" and "minimal." Appendices A, B and
C of EPAS sets forth an "Enforcement Activity Measurement System" which
designates the number of enforcement (unit) points to be granted an
Inspector for types and amounts of seizures or detentions made by him in
connection with his duties.
19. Performance elements and subelements set forth in the EPAS call
for the Customs Inspector, in respect to cargo, to board vessels,
complete documents and grant preliminary entry; to review and process
in-bond, formal and informal entries and maintain custody of all
merchandise until regulatory requirements have been met; to "outturn"
manifest by auditing carrier records. In respect to baggage, the
performance requirements call for the Inspector to question passengers
and crew, examine baggage, assessand collect duties and taxes. In
respect to enforcement, the Customs Inspector is expected to perform
searches and arrests, to make seizures and assess penalties.
20. In connection with his performance the GS 9/11 Customs Inspector
must earn 25-100 credit points per rating period to be deemed
"Acceptable", and 10-25 credit points to be judged "Minimal". The GS
5/7 Customs Inspector must earn 20-95 credit points per rating period to
be deemed "Acceptable" and 4-10 credit points for a "Minimal" rating.
21. The record reflects that as a result of not boarding the vessel
under RPET, contrary to the former procedure, the Customs Inspectors
cannot search a crew or visitors who may be bringing in articles
illegally upon the ship's arrival, and then make necessary arrests.
Further, the Inspectors cannot make seizures of contraband or undeclared
currency and write up necessary penalties. Since he cannot board a
vessel, the Inspector no longer is in a position to make observations or
judgments relating to the documentation, the crew, or such vessel
problems causing pollution as an oil spill, so as to aid other Customs
officials in enforcement. /7/
Conclusions
The ultimate issue herein is whether Respondents unilaterally
implemented the RPET program on July 1, 1984 and unlawfully refused to
negotiate the impact and implementation thereof with the Union.
In respect thereto Respondents raise the following principal
contentions: (1) since the Union filed a negotiability appeal pursuant
to Section 2424 of the Authority's Rules and Regulations, it is barred
under 7216(d) of the Statute from raising the issue as an unfair labor
practice; (2) the collective bargaining agreements cover the impacts
which General Counsel asserts to result from the new program, and hence
bargaining has taken place as required; (3) assuming arguendo the
bargaining agreement is not controlling and that bargaining has not
occurred, no obligation existed to negotiate since: (a) the Union's
proposals were non-negotiable, and (b) any adverse effect upon employees
stemming from the implementation of RPET was de minimis. /8/
(1) It is contended by Respondents that, since the Union filed a
negotiability appeal after management determined the proposals of the
Union were non-negotiable, the issue of negotiability has been settled.
Adverting to Section 7116(d) of the Statute, Respondents claim that this
complaint must be dismissed in view of the statutory language which
provides that "Issues which can properly be raised under an appeals
procedure may not be raised an unfair labor practices prohibited under
this section. . ." (underscoring supplied). Further, it is argued that
the particular appeals procedure, under which the negotiability issue
may properly be raised, is set forth in Section 7117(c) which states:
"(c)(1) Except in any case to which subsection (b) of this
section applies, if any agency involved in collective bargaining
with an exclusive representative alleges that the duty to bargain
in good faith does not extend to any matter, the exclusive
representative may appeal the allegation to the Authority in
accordance with the provisions of this subsection." (underscoring
supplied).
The undersigned is not persuaded that Section 7116(d) of the Statute
operates to bar the present proceeding. That statutory provision does,
it is true, foreclose raising issues in an unfair labor practice
proceeding which are properly raised in an appeals procedure. But,
apart from the question as to whether negotiability appeals before the
Authority are in fact "appeals procedures" /9/ under 7116(d), the issues
raised must be the same in the negotiability appeals procedure and the
unfair labor practice proceeding in order to bar raising the issue as an
unfair labor practice. The Authority has addressed this point in
several cases where a grievance was filed against the agency and
thereafter an unfair labor practice complaint was issued against said
agency. In Defense Logistics Agency, Defense Depot Tracy, Tracy,
California, 16 FLRA No. 142 the complaint alleged a unilateral
elimination of Environmental Pay Differential (EPD). Prior thereto, the
unit employees filed a grievance seeking continuance of EPD. It was
held that 7116(d) did not operate as a bar since the issues raised in
the grievance proceeding as not the same as that raised in the unfair
labor practice complaint. To the same effect, which involved a
reorganization, see United States Air Force, Air Force Logistics
Command, Aerospace Guidance and Metrology Center, Newark, Hio, 4 FLRA
No. 70.
In the instant case the issue raised by the unfair labor practice
complaint concerned an alleged change in working conditions, i.e. the
unilateral institution of a Radio Preliminary Entry Test program in
place of the former vessel entry practice -- all without bargaining with
the Union re its impact and implementation. Assuming arguendo, that the
negotiability appeal filed by the Union constituted an "appeal
procedure" with the meaning of 7116(d), the issue raised therein would
have involved the negotiability of the Union's proposals number 2 and 3.
Thus, the issues in these two proceedings are different and accordingly
I reject the contention that the unfair labor practice change herein was
barred under Section 7116(d) of the Statute.
(2) The various agreements alluded to by Respondents do contain, it
is true, provisions with respect to overtime. The National Agreement
/10/ sets forth, in Article 22, Section 1-29, clauses dealing with,
inter alia, notification of overtime, method of assignment, equalizing
overtime earnings, and uncontrolled overtime. The supplemental
agreements covering the Los Ageles Region /11/ and the San Francisco
Region /12/ deal, for the most part, with "equalization of overtime" and
the keeping of records re overtime. Respondents argue that these
provisions fully cover all aspects of overtime over which bargaining
could take place. It is urged that there has been no change in
procedures, and that the assignment of overtime is a management right.
While the agreements do refer to the procedures for overtime
assignments, as well as other features thereof, the Union does not seek
to challenge these provisions. Neither does it question management's
right to make assignments. Rather does the Union seek to bargain re the
impact of a change in working conditions, i.e. the institution of RPET.
The effect of the new entry program upon Customs Inspectors' overtime
earnings, concerning which, inter alia, the Union seeks to bargain, is
not covered by any of the agreements. There is no provision which deals
with, and provides for, arrangements in the event overtime is lost due
to changes in operations. Had such appeared therein, it could then be
concluded that the Union waived its right to bargain over the loss of
overtime due to a changed condition. In my opinion there is no language
in the agreements supporting a conclusion that this matter was
negotiated therein.
With respect to the Employee Performance Appraisal System (EPAS)
which became effective on July 1, 1984, Respondents maintain that any
effect of such plan is also covered under the National Agreement.
Specifically, reference is made to Article XVI, Section 5 thereof.
Those clauses pertain to the procedures for changing performance plans,
including notification to employees and a meeting with the latter as
well as the union steward to discuss the performance elements. Again,
the Union herein does not question the procedures for modifying or
changing the performance standards, nor the right of management to do
so. It does not, as the record reflects, challenge EPAS but is
concerned with the fact that the change in the entry system for vessels
(RPET) redounds to the detriment of Inspectors under EPAS. None of the
provisions in the National Agreement pertaining to performance
appraisals is germane to this central issue: whether the changed entry
system for vessels affected the working conditions of Customs
Inspectors.
Accordingly, I conclude that the issue at hand has not been bargained
heretofore by the parties and is not controlled by the National
Agreement or the Supplemental Agreements covering Los Angeles and San
Francisco.
(3)(a) With respect to the insistence by Respondents that the Union's
proposals concerning RPET were non-negotiable and thus relieved
management of a duty to bargain, I am persuaded that this contention
lacks merit. In respect to Proposal No. 2, /13/ the thrust thereof is
that implementation of the radio entry program be withheld pending a
study within 6 months by the Union on its impact upon unit employees.
This proposal, insofar as it concerns management's procedures in
establishing RPET, does not prevent the agency from acting to exercise
its authority under Section 7106 of the Statute. While the reason for
deferring implementation may not meet with management's approval, the
basic request of Respondents is for a delay thereof up to 6 months. As
such, it does not interfere with management's rights under the Statute.
Immigration and Naturalization Service, Eastern Regional Office
(Burlington, Vermont), 18 FLRA No. 103; National Federation of Federal
Employees, Council of Consolidated SSA Locals and Department of Health
and Human Services, Social Security Administration, 17 FLRA No. 95.
Moreover, it seems apparent to the undersigned that such proposal is
concerned with the impact that the RPET program will have upon the
Inspectors in view of the stated reason therefor. I conclude that
Proposal No. 2 is a negotiable matter. /14/
In Proposal No. 3 /15/ the Union requests that implementation of RPET
be withheld pending (a) written clarification of the program's goals (if
any) and (b) the establishment of guidelines re an analysis of test
results. In respect to the first portion of the proposal, Respondents
contend it does not bear on any procedures or impact; that it is merely
a request for information and management's obligation to furnish data is
governed by 7114(b) (4) of the Statute. In respect to the second
portion of the proposal, it is argued that requiring guidelines for an
analysis of test results would affect the agency's discretion in
determining the mission of the agency; that it imposes a limitation on
management's right to assign work and determine the personnel who would
conduct operations.
Neither argument of Respondents convinces me that this proposal is
non-negotiable. Suggested clarification of goals in connection with
RPET is not equatable, in my opinion, with request for information which
a union seeks in order to engage in collective bargaining. It is
understandable that particular goals, if established by management, may
infringe on the effects of the new radio entry program. Respondents are
not called upon to set up such goals and, unless in existence, they may
not be required to provide them. The proposal to advise the Union of
established goals does not interfere with management's rights to effect
RPET or direct its personnel in the operation thereof.
In respect to the establishment of guidelines for an analysis of the
test results, Respondents assert this particular proposal lacks
specificity. The case of National Treasury Employees Union and NTEU
Chapter 66 and Department of the Treasury, Internal Revenue Service,
Kansas City Service Center, Missouri, 6 FLRA No. 16 is cited in support
thereof. In that case the union proposed that "Guidelines be
established and distributed to employees advising them what spot
checking will consist of." (Underscoring supplied). This and other
disputed proposals arose from discussions re a reorganization and a
request by the union to negotiate as to duties of a working leader
position in the Compliance Division. The Authority concluded that while
the proposal appears to relate to the "working leader" position,
insufficient explanation existed as to the meaning of the language as
well as the purpose of all the proposals. In the NTEU case, supra, the
Authority referred to its decision in Association of Civilian
Technicians, Alabama ACT and State of Alabama National Guard, 2 FLRA No.
39 where a failure by the union to present a proposal, "sufficiently
specific and delimited in form", precludes a determination as to
negotiability and warrant dismissal of a petition for review. Note is
taken, however, that in the Alabama case the union sought a
determination as to whether impact and implementation of the agency's
conversion program was within the duty to bargain, but no specific
proposals were even submitted. The Authority concluded that a definite
proposal must be sent to management.
The case at bar, I am persuaded, is distinguishable from those in
which either no proposal was submitted or the proposal was uncertain and
indefinite. The request for clarification is clearly referrable to RPET
and is not shrouded in ambiguity. It is specific in nature. While
Respondents aver that the establishment of guidelines would impose a
substantive limitation upon management's authority to assign work or
determine the mission of the agency, I do not agree. Guidelines, as
proposed, would relate to eventual results of the test. An analysis
thereof could well bear on the impact of RPET as it affects employees,
and no such considerations would prevent Respondents from carrying on
its mission or assigning work to employees. See National Treasury
Employees Union and U.S. Customs Service, Region VIII, San Francisco,
California, 2 FLRA No. 30.
In sum, I am satisfied that Proposal No. 3 is a negotiable matter
which does not preclude management from acting in regard to its ratio
entry program.
Two other proposals by the Union were rejected by Respondents as
being non-negotiable and remain for consideration. Proposal No. 4 /16/
was deemed by Respondents to interfere with the agency's right to
discipline employees. Proposal No. 5 /17/ was deemed to interfere with
the agency's right to evaluate or discipline employees. This was so
stated in Miller's letter of June 13, 1984 to the Union.
The net effect of these two proposals calls for management abstaining
from disciplining or evaluating employees during this RPET program based
on error committed under the new procedures. While management argues to
the contrary, the fact that these proposals were not the subjects of
negotiability appeals does not, in my opinion, warrant the conclusion
that the Union conceded their non-negotiability. No such concession or
statement in that regard appears in the record. Note is taken that in
National Federation of Federal Employees, Council of Consolidated SSA
Locals and Department of Health and Human Services, Social Security
Administration, 17 FLRA No. 95 the Authority dealt with a union proposal
somewhat similar to Proposal No. 4 and 5 herein. In the cited case the
union proposed that unit employees not be charged with payment or
documentation errors on issues relating to certain changes made by
management. The Authority concluded the said proposal provides what is
tantamount to a training period, during which employees are not charged
with errors attributable to the new procedures. It followed the
reasoning set forth in American Federation of State, County and
Municipal Employees, Local 2910, AFL-CIO and Library of Congress, 15
FLRA No. 112 and determined there was no attempt to prevent the
assignment of work. It was not contemplated that employees not perform
the changed duties, but merely they not be evaluated during a trial
period.
In the case at bar I am persuaded that these particular proposals
(Nos. 4 & 5) do not interfere with Respondents' right to assign work or
expectation that the Inspectors perform the assigned work. As in the
cited cases, the proposals would seek to exclude the errors committed by
these employees under the new procedure from being the basis for
disciplinary action or evaluation. As such, these proposals bear on the
impact resulting from RPET, and I conclude they were negotiable matters
in connection with the implementing of the change in vessel entry.
(3)(b) Case law is well established reaffirming the principle that,
in the event an agency exercises a management right under Section 7106,
it must still negotiate any impact upon its unit employees which results
from a change which was reasonably foreseeable. U.S. Government
Printing Office, 13 FLRA 203. The Authority has also reiterated that no
duty to bargain over a changed working condition exists where the effect
of such change is de minimis in nature. See Department of Health and
Human Services, Social Security Administration, Chicago Region, 15 FLRA
No. 174. Adhering to this principle, the Authority in Department of
Health and Human Services, Social Security Administration, Region V,
Chicago, Illinois, 19 FLRA No. 101 mentioned five factors /18/ which it
felt should be considered in determining whether the impact, or
reasonably foreseeable impact, was de minimis.
In the case at bar Respondents argue that the RPET program
constituted only a change in procedure; that any alteration of
Inspectors' duties was not a material one. It is insisted that the only
specific change resulting from the radio entry plan involved eliminating
a boarding of the vessel by the Inspectors; that their duties were not
changed in any significant manner by reason thereof.
Record facts establish, in my opinion, that the impact of the change,
i.e. the elimination of a procedure whereby Inspectors board a vessel
upon its entry, is more than de minimis in nature. When these
individuals were called to board ships before 8:00 a.m. or after 5:00
p.m. (the regular work hours), it was a condition of their employment
that overtime was earned for work performed during those non-regular
periods. With the change in this procedure such overtime was lost to
250 Customs Inspectors at the ports of Los Angeles and San Francisco.
Factual testimony reflects that, as a result of their not boarding
vessels which arrive at non-duty hours, these employees stood to lose
10% - 25% of their overtime pay. Respondents' argument that assignment
of overtime is a management right is not at issue. The fact remains
that, during a fiscal year, 1/2 of the vessels which gained entry to
these ports utilized RPET. A substantial loss, or foreseeable loss, of
overtime for 250 employees can scarcely be termed minimal in nature.
Contrary to Respondents, I conclude that such deprivation of overtime is
a material change in conditions of employment.
Under the performance appraisal system (EPAS) adopted by Respondents
on August 1, 1984, an Inspector would be appraised based on his
performing certain elements and subelements. The latter calls for
Customs Inspectors to board a vessel and (a) insure that documents are
in order, and maintain custody of merchandise until regulations are met,
(b) questions passengers and crew regarding baggage as well as examine
same, (c) perform searches and arrests as well as make seizures and
assess penalties. In performing these duties the Customs Inspector,
pursuant to EPAS, earns credit points which determine the rating
received by him. The summary rating system ranges from "outstanding" to
"unacceptable". The amount of credit points earned by these Inspectors
is the measuring standard as to whether his performance is deemed
"Acceptable" or "Minimal."
It thus becomes self-evident that if these employees no longer board
vessels upon entry they are scarcely in a position to comply with the
performance expectations or standards set by management. Respondents
argue that, except for examining the manifests ashore instead of aboard
the vessel, there has been no change, and it further challenges the fact
that such duties aboard the vessel were actually performed prior to
RPET. The credible testimonies of the Senior Customs Inspector and two
other Inspectors reveal that, prior to radio entry, searches and
seizures were performed as needed when the Customs Inspectors boarded a
vessel; that cargo was examined as well as passengers; that entries
were made therewith by there employees for the assessment and collection
of penalties in connection with contraband merchandise or the illegal
presence of persons on ship. The foregoing convinces me that the change
effected by Respondents whereby Inspectors no longer board vessels had a
foreseeable impact upon credits earned by them and thus affected their
performance appraisals under the rating system of EPAS.
Consideration has been given by the undersigned to the question as to
whether the change caused by RPET was temporary, in which instance it
justifies labeling the change as de minimis. While the Authority in
Department of Health and Human Services, Social Security Administration,
Region V, supra, emphasized that the change therein was short-lived and
of temporary duration, the case herein is readily distinguishable. In
the cited case claims representatives from SSA were detailed or assigned
to State of Michigan, Department of Social Service (DDS) to help clear
up a backlog of cases. Such travel by the claims representatives was
done one day a week, and only six trips were taken by any one
representative. Construing such a change as de minimis is
understandable in view of its non-recurrence. However, despite the fact
that the RPET program was a test for one year, it was a continuing and
daily condition of employment. To deem a change as "temporary" based on
its being operative for a year, so as to be called de minimis, would set
the stage for an agency to escape bargaining on any change by merely
designating it as a one year test program. In the opinion of the
undersigned logic compels the conclusion that where, as here, management
effects a program requiring constant and continued conditions of
employment -- albiet for a year as a trial -- the change is not properly
characterized as temporary within the meaning of a term as used by the
Authority in the cited case.
On the basis of the foregoing, I conclude that the RPET program was
instituted by Respondents without affording the Union an opportunity to
bargain re its impact and implementation: that the change wrought by
discontinuing the practice and condition of employment whereby Customs
Inspectors boarded the vessel upon entry, with the attendant duties
heretofore described, constituted a change more than de minimis in
nature; and that, as a result thereof. Respondents violated Section
7116(a)(1) and (5) of the Statute.
In view of the foregoing I recommend that the Authority issue the
following:
ORDER
Pursuant to Section 2423.29 of the Authority's Rules and Regulations
and Section 7118 of the Statute, it is hereby ordered that the United
States Customs Service, Washington, D.C. and United States Customs
Service Pacific Region, shall:
(a) Unilaterally instituting the Radio Preliminary Entry Test
program in the Pacific Region, without first affording the
National Treasury Employees Union, the employees' the exclusive
bargaining representative, an opportunity to negotiate with
respect to the procedures to be observed in implementing such
program and appropriate arrangements for employees adversely
affected thereby.
(b) In any like or related manner interfering with, restraining
or coercing its 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, bargain with the National Treasury Employees
Union, the employees' exclusive bargaining representative, with
respect to procedures and appropriate arrangements for employees
adversely affected by the implementation of the Radio Preliminary
Entry Test program.
(b) Post at its Pacific Region facilities, wherever bargaining
unit employees are located, 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 a Regional
Commissioner, or his designee, and shall be posted and maintained
by him for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where Notices to
employees are customarily posted. Reasonable steps shall be taken
to insure that said 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 8, 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.
/s/ WILLIAM NAIMARK
Administrative Law Judge
Dated: December 30, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) On June 29, 1984 the Union filed a negotiability petition for
review as to Proposals 2 and 3 with the Authority; the petition was
dismissed as untimely filed. National Treasury Employees Union and
Department of the Treasury, Customs Service, 15 FLRA 775 (1984).
(1) Subsequent to the hearing, General Counsel filed with the
undersigned a Motion to Correct Transcript. No objections having been
filed to the Motion, and it appearing that the proposed corrections are
proper, the Motion is granted as requested.
(2) Formerly designated as Region VII.
(3) The average vessel coming into the port at Los Angeles have from
700-1000 bills of lading.
(4) Deputy Assistant Regional Commissioner Tag testified that RPET
was developed due to declining resources and rapidly increasing workload
in Los Angeles. The Pacific Regional management consulted with the
service headquarters in Washington beforehand.
(5) It also set forth the meaning of two of its proposals; those set
forth, supra, under paragraphs 12(a) and (b) of the Findings of Fact
herein.
(6) This occurs since the Inspector, under RPET, does not board the
vessel before 8 a.m. or after 5 p.m. as he did prior to the new entry
procedure.
(7) There are about 400 laws which the Customs Inspector is
responsible for enforcing in connection with his inspections.
(8) Respondents do not concede that RPET constituted any change in
working conditions. It insists that any change which occurred involved
one of procedure which did not affect the job functions or
responsibilities of Customs Inspectors.
(9) No case has been brought to my attention which is dispositive of
this questions. In any event, in view of the ultimate determination re
the applicability of 7116(d), I do not find it necessary to pass upon
whether a negotiability appeal to the Authority constitutes an appeals
procedure" under the Statute.
(10) Respondents' Exhibit No. 5.
(11) Respondents' Exhibit No. 6.
(12) Respondents' Exhibit No. 7.
(13) "That the implementation of the proposed temporary directive be
withheld pending a study to be carried out, within six months, by NTEU
to evaluate on the impact of the directive on bargaining unit
employees."
(14) Respondent also maintains this proposal is not specific and thus
warrants its refusal to negotiate therein. I disagree. The language
therein is neither vague nor subject to conjecture. The proposal
specifies that implementation be withheld and a maximum period is
stated.
(15) "That the implementation of the proposed directive be withheld
pending clarification, in written forms of the perceived goals (if any)
for the RPE program as well as establishment of guidelines for the
eventual analysis of the test results."
(16) "That bargaining unit employees shall not be subject to
disciplinary action for errors resulting from the RPE test."
(17) "That bargaining unit employee shall be evaluated on the basis
of errors involving the case (sic) of the RPE test."
(18) These involved the extent of the change, duration and frequency
of the change, number of employees affected or foreseeably affected,
size of the unit, and extent to which parties established procedures and
arrangements re analogous changes in the past.
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 unilaterally change conditions of employment by
instituting the Radio Preliminary Entry Test program in the Pacific
Region, without first affording the National Treasury Employees Union,
the employees' the exclusive bargaining representative, an opportunity
to negotiate with respect to the procedures to be observed in
implementing such program and appropriate arrangements for employees
adversely affected thereby.
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, bargain with the National Treasury Employees
Union, the employees' exclusive bargaining representative, with respect
to procedures and appropriate arrangements for employees adversely
affected by the implementation of the Radio Preliminary Entry Test
program.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 8,
whose address is: 350 South Figueroa Street, 10th Street, Los Angeles,
CA 90071 and whose telephone number is: (213) 688-3805.