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38 FLRA No. 68

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

WASHINGTON, D.C.

AND

CUSTOMS SERVICE

NORTHEAST REGION

BOSTON, MASSACHUSETTS

(Respondents)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 133

(Charging Party)

1-CA-50395

1-CA-70128

1-CA-70129

DECISION AND ORDER

December 7, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge issued in the above-entitled consolidated proceeding. The Respondents filed exceptions to the Judge's decision. The General Counsel filed a cross-exception and an opposition to the Respondents' exceptions.

The complaint in Case No. 1-CA-50395 alleges that the Respondents violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain in good faith with National Treasury Employees Union, Chapter 133 (hereinafter Union) over changes in matters affecting working conditions. The complaints in Case Nos. 1-CA-70128 and 1-CA-70129 allege that the Respondents violated section 7116(a)(1) and (5) by unilaterally changing conditions of employment without providing the Union with notice and an opportunity to bargain over the changes. The Judge found that the Respondents had violated the Statute, as alleged in the three complaints.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. After consideration of the Judge's Decision, the exceptions and cross-exception, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, except as noted below.

II. Case No. 1-CA-50395

A. Background

The U.S. Customs Service, Northeast Region (hereinafter Respondent) consists of an Airport Division and a Seaport Division. Each division is headed by its own supervisor and has different geographic jurisdictions, hours of work, and overtime lists. Customs Inspectors employed by the Respondent rotate through assignments (referred to by the parties as "slots") in the divisions. Most slots involve a specific duty station or work location and a fixed period of time. Relief slots, on the other hand, require assigned employees to fill in, where needed, at certain work locations. Inspectors in the regular rotation schedule rotate, after a fixed period of time, to the next slot on the list. A smaller number of inspectors are removed from the rotation system for assignment to special details or other assignments which are not included in the regular rotation.

In 1980, the Respondent and the Union established, through negotiations, a rotation schedule for the Respondent's inspectors. G.C. Exh. 4. That rotation schedule provided for different durations of various assignments depending, in part, on the grade level of the inspectors involved. For example, inspectors in grades 5, 7, and 9 were assigned to slots for 2-week periods. GS-11 inspectors were assigned for 12-week periods. Certain assignments were made from a list of volunteers and, in addition, assignments of GS-11 inspectors were made from a list submitted by the Union.

In 1983, the Respondent implemented the Automated Cargo and Clearance Enforcement Procedures Technique (ACCEPT) program in the Port of Boston. The ACCEPT program was an automated process designed to facilitate the inspection of cargo shipments. The Union sought to bargain over the implementation of the ACCEPT program and submitted proposals in July 1983. The Respondent asserted, however, that bargaining over the program should take place between the Customs Service and the National Treasury Employees Union, the parties at the national level.

Subsequently, in October 1983, the national parties reached agreement over the Customs Service's implementation of the ACCEPT program. The agreement, which was reduced to writing in November 1983, provided, in part:

Prior to implementation of ACCEPT at any additional ports, the parties will meet locally to bargain over the impact of ACCEPT on existing rotational patterns.

At ports where ACCEPT has been implemented without advance notice and/or negotiations with NTEU, the parties will, upon request of the union, engage in negotiations over the impact of ACCEPT on existing rotational patterns, provided such requests are made within 30 days of the effective date of this agreement.

G.C. Exh. 6. The agreement provided also that either party could reopen the agreement 1 year after its effective date "in the event of unforeseen impact on employees resulting from the implementation of ACCEPT." Id.

In December 1983, following the national-level agreement, the Union again requested bargaining over the impact of the ACCEPT program and submitted the same proposals it had submitted the previous July. The Respondent again refused to bargain, however, asserting, among other things, that (1) the Union had not timely requested to bargain, (2) the Union's proposals exceeded the scope of the changes resulting from implementation of the ACCEPT program, and (3) the proposals were nonnegotiable. The Union grieved, and invoked arbitration over, the Respondent's refusal to bargain.

Also in December 1983, the national-level parties executed a new master agreement. As relevant to this case, that agreement provided:

Article 20

Assignment of Work

GENERAL

. . . .

Section 2. A. For purposes of this Article the following definitions shall apply:

(1) Reassignment: The permanent change of an employee from one position, work location or post of duty without promotion or demotion.

(2) Temporary Reassignment/Loan: The movement of an employee to an identical position (i.e., same grade and series) at a different work location or post of duty for a fixed or limited duration of time, upon the expiration of which the employee will return to his original position, work location or post of duty.

. . . .

(6) Rotation: The recurring assignment of employees to different work locations, assigned work, shifts, and/or tours of duty within the confines of the employees' post of duty and/or other locations to which employees are regularly assigned.

. . . .

REASSIGNMENT

Section 3. A. When the Employer determines that the interest of the Customs Service will be served by the reassignment of an employee due to staffing imbalance, workload fluctuations, new programs or locations, special projects, or for other legitimate reasons, that action will be affected [sic].

. . . .

Section 5. When the Employer determines it is necessary to reassign or temporarily reassign employees in positions at one post of duty to identical positions at a different post of duty pursuant to Subsection 3A of this Article and the Employer determines that more than one (1) equally qualified employee is available for reassignment or temporary reassignment (from within the work group from which the reassignment is to be made), the Employer will:

(1) seek a volunteer for reassignment among those determined to be equally qualified, and

(2) if more qualified employees volunteer than positions to be reassigned, those employees with the greatest amount of Customs Service within the position being reassigned will be selected,

(3) if too few qualified employees volunteer, those employees with the least total Customs service within the position being reassigned will be selected.

. . . .

ROTATION

Section 16. A. Where necessary or appropriate the Employer shall rotate employees through different work locations, assigned work, shifts, and/or tours of duty within the confines of the employee's post of duty and/or other locations to which the employees are regularly assigned.

B. Should the Employer decide to make substantial changes in an established rotation system, timely notice and the opportunity to bargain will be given in accordance with Article 37.

Article 37

Impact Bargaining

Section 1. A. The Union recognizes that the Employer has the right to exercise its management rights as set forth in the Civil Service Reform Act during the life of this Agreement and--in accordance with applicable law, rule, regulation and this Agreement--to initiate changes in operational and administrative procedures and programs when the Employer determines that it is in the interest of the Customs Service to do so.

. . . .

Section 4 If the Union wishes to negotiate concerning the implementation or impact on employees of the proposed change(s), the Union will submit written proposals to the Employer within a reasonable period after notification of the proposed change(s). The Union agrees that any proposals submitted in the context of impact bargaining will be related to the proposed change(s) and will not deal with extraneous matters.

G.C. Exh. 3.

On or about January 14, 1985, the Union's president received a letter from the Respondent's Assistant Director notifying the Union of changes that the Respondent proposed to implement on February 4, 1985.^(*) The Respondent proposed to: (1) assign the Document Analysis Units (DAU's) and the employees assigned to those units to the regular rotation; (2) reduce by three the number of employees assigned to the Contraband Enforcement Team (CET) and reassign those three employees to the regular rotation; and (3) establish a Carrier Accountability Team (CAT), consisting of three inspectors, with initial assignments of 1 year. On January 21, the Union submitted proposals concerning the proposed changes. In part, the Union proposed that "qualified employees will rotate utilizing the bid process once a year." G.C. Exh. 9.

On January 18, the arbitrator issued his award involving the Respondent's previous failure to bargain over the ACCEPT program. In addition to finding that the Union had timely requested to bargain over ACCEPT, the arbitrator rejected the Respondent's argument that it was not required to bargain over the impact of ACCEPT on the rotation schedule because the implementation of ACCEPT did not change the rotation schedule. The arbitrator concluded:

. . . although the Agency's "adjustments" did not change the scheduled two-week rotation, it did alter the pattern of slots through which the inspectors rotated. The "adjusted" rotation schedule decreased the number of rotational slots, increased the number of voluntary details and changed the rotation sequence ratio between the airport and the seaport. In the Arbitrator's view, a rotational pattern consists of the frequency of the rotation as well as the numbers, types, and the sequence of slots on the rotation schedule. Therefore, the Arbitrator finds that the Agency's rotation schedule "adjustments" were in fact changes in the rotational pattern.

G.C. Exh. 5 at page 22.

The arbitrator found that as negotiability determinations were within the exclusive jurisdiction of the Authority, he would not resolve issues relating to the negotiability of the Union's proposals. As a remedy, the arbitrator directed the parties to "engage in good faith bargaining to the extent consistent with the applicable negotiability requirements . . . ." Id. at 25. On January 23, the Union requested to bargain over "the local impact of the ACCEPT program on the Port of Boston rotational pattern." G.C. Exh. 7. The record does not disclose the results of the Union's request to bargain over ACCEPT.

By letter dated January 31, the Union requested that the Respondent provide certain information with respect to the changes it had proposed on January 14. G.C. Exh. 10. The Union stated that after receipt of the information, it would "delete, amend, and add to its proposals of January 21, 1985." Id. By letter dated February 8, the Respondent notified the Union that the changes it originally proposed to implement on February 4 would be "held in abeyance to facilitate clarification, understanding and i[n]put on [the Union's] part." G.C. Exh. 13. The Respondent stated that the changes would be implemented on March 4.

Beginning on February 11, the parties bargained over the changes in the rotation schedule proposed in the Respondent's January 14 letter. On February 12, the Union submitted its amended proposals including, as pertinent here, the following:

1.) All qualified employees . . . will be assigned to work locations which have been identified by the Employer utilizing the bid process based on occupational seniority in a descending order. If there is a tie, Customs Service [sic] will be utilized to break the tie. If a tie still exists, Service computation date will be used to break the tie. If the tie still exists, a lottery will be used to break the tie. In the alternative, Merit Protection Principals [sic] will be utilized to assign employees.

2.) All qualified employees . . . will rotate utilizing the bid process or in the alternative Merit Promotion Principals [sic], every six months.

3.) In order to maintain proficiency in sufficient aspects of the employees assigned duties, employees will change work locations once a year. For purposes of this agreement, only the airport passenger (Volpe) assignment will be considered one work location and only the 7/3, 3/ll, 4/12 shifts assignments will be considered as one work location.

13.) Assignments of Customs Inspectors to Duty Officer, Terrorist Team and Cargo Accountability Team (C.A.T.) will be made in accordance with Article 20, Section 5 of the National Agreement. These assignments will have a duration of 6 months.

14.) The assignment of Customs Entry Aides to the Cargo Accountability Team will be in accordance with Article 20, Section 5 of the National Agreement. This assignment will have a duration of 6 months.

Judge's Decision at 5-6.

The Respondent declared the five proposals to be nonnegotiable and, by letter dated February 25, responded to the Union's assertion "that the negotiations concerning the various revisions to the I&C work schedule are at impasse." G.C. Exh. 1(A), attachment E. The Respondent notified the Union that the parties were not at impasse because there were "no negotiable proposals on the table." Id. The changes proposed in the Respondent's January 14 letter were implemented on March 4.

On August 23, 1985, the Union filed an unfair labor practice charge alleging, in part, as follows:

This charge is based on the failure and refusal of the Agency to give notice of a change and negotiate in good faith with the Union concerning a change in personnel policy and working conditions. The change: Unilateral implementation of the changes to the rotation pattern of inspectors caused by the ACCEPT program.

On January 18, 1985, after the Agency had refused to bargain and a grievance was filed, the Agency was ordered to bargain pursuant to an arbitration award . . . .

. . . .

On or about February 25, 1985, the Agency issued a response declaring all proposals non[]negotiable. Further, the Agency stated implementation of the proposed change would occur on March 4, 1985.

On or about March 4, 1985, the changes were implemented.

G.C. Exh. 1(A).

On April 28, 1987, the unfair labor complaint in this case was issued. The complaint alleged, in part, that:

8. (a) By letter dated January 14, 1985, . . . the Respondent notified [the Union] of several changes which it proposed to implement to the rotation schedule . . . .

(b) By letters dated January 21, 1985, and February 8, 1985, . . . [the Union] requested to bargain concerning the changes described above . . . and it submitted bargaining proposals . . . .

(c) Commencing on or about February 5, 1985, and at all times material thereafter, the Respondent has refused to bargain over the proposals . . . .

(d) On February 13, 1987, the Federal Labor Relations Authority issued a DECISION AND ORDER ON NEGOTIABILITY ISSUES in National Treasury Employees Union and U.S. Customs Service, Northeast Region, 25 FLRA 731 . . . finding proposals i[]dentical to those [set forth previously] to be within the Respondent's duty to bargain.

G.C. Exh. O.

B. Judge's Decision

The Judge first rejected the Respondent's contentions that: (1) the unfair labor practice charge in this case was untimely filed because the charge specifically mentioned only the ACCEPT program and the changes implemented by the Respondent on March 4, 1985, did not relate to the ACCEPT program; and (2) the unfair labor practice complaint should be dismissed because it was not "based on the charge." Judge's Decision at 14.

The Judge concluded that the charge was sufficient "to include an allegation that Respondent implemented certain changes on March 4, 1985, which it deemed non-negotiable and about which it refused to bargain, and some of the changes it implemented were subsequently held negotiable by the Authority." Id. at 15. The Judge noted, in this regard, that "specificity" in a charge is not required because the purpose of a charge "is merely to initiate agency investigations to determine whether a complaint should issue." Id. The Judge concluded also that as the complaint bore a reasonable relationship to the charge, there was no basis on which to dismiss the complaint.

Next, the Judge rejected the Respondent's argument that it was not obligated to bargain over Union proposals 1, 2, 3, 13, and 14 because the subject matters of these proposals had been bargained over in Article 20 of the parties' 1983 master agreement. The Judge found that "[h]aving bargaining at the national level, [did] not . . . preclude impact bargaining at the local level . . . ." Id. at 17.

The Judge found also that the impact of the changes was more than de minimis. The Judge noted that as a result of the changes, 44 employees were affected by 22 changes in assignments, duty locations, and sequence of slots in the regulation rotation schedule. The changes included changes in days off and hours worked. With respect to the latter point, the Judge found that CET and CAT assignments were viewed as desirable by employees because they offered regular work hours and, with respect to CET, promotion potential. The Judge concluded that as the Respondent . . . "recognized its obligation to bargain" and as there was no showing that "finding . . . a bargaining obligation . . . would result in any hardship or would unduly burden . . . the Respondent[,]" it "appear[ed] equitable to find that a bargaining relationship exist[ed] here." Id. at 19.

Further, the Judge rejected the Respondent's argument that it was not obligated to bargain because the proposed changes were not "substantial," within the meaning of Article 37 of the parties' master agreement, and because the Union's proposals exceeded the scope of the Respondent's proposed changes. With respect to the latter argument, the Judge noted that although some of the proposals did not "specifically involve or address precisely the changes implemented on March 4, . . . all of the proposals relate[d] to conditions of employment of bargaining unit employees . . . ." Id. at 17. The Judge noted also that proposals 1, 2, and 3 "all deal[t] with procedures for assigning employees to CAT and other special assignments and [could] hardly be considered extraneous." Id.

The Judge found that the former argument (that the proposals were barred by Article 37), was "essentially a waiver argument." Id. at 19. Noting that waivers of bargaining rights must be clear and unmistakable, the Judge found that Article 37 provided "no basis for concluding that a clear and unmistakable waiver of statutory bargaining rights exist[ed]." Id.

Finally, the Judge found that the Regional Director's decision to await the Authority's decision in National Treasury Employees Union and U.S. Customs Service, Northeast Region, 25 FLRA 731 (1987) (Customs), before issuing the complaint in this case was appropriate because Customs involved the "exact proposals[]" involved here. Id. at 20. The Judge found that the Respondent's refusal to negotiate over the proposals violated the Statute "eventhough [sic] the determination of negotiability was made after its refusal to negotiate . . . ." Id.

The Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute when it implemented the changes in unit employees' conditions of employment on March 4, 1985. To remedy the unfair labor practice, the Judge recommended that the Respondent be directed to cease and desist from its violations of the Statute and, on the Union's request, bargain over proposals 1, 2, 3, 13, and 14.

C. The Parties' Positions

1. Respondent's Exceptions

The Respondent filed six exceptions to the Judge's decision in this case. The Respondent argues first that the charge was not timely filed and the complaint was not based on the charge. The Respondent maintains, in this regard, that the charge specifically referred only to the changes resulting from implementation of the ACCEPT program and, accordingly, the General Counsel improperly attempted to include in the complaint the allegations resulting from other changes.

Second, the Respondent argues that the impact of the changes involved in this case was de minimis. The Respondent asserts that changes in the rotation schedule routinely are made and that, as a result, the adjustments in the rotation schedule resulting from the changes involved here did not adversely affect unit employees.

The Respondent asserts, as its third and fourth arguments, that the Union's proposals were not within its duty to bargain because (1) the proposals exceeded the scope of the changes implemented by the Respondent; and (2) in Articles 20 and 37 of the parties' master agreement, the Union "limited its right to bargain." Respondent's Brief in Support of Exceptions at 11. According to the Respondent, the parties' agreement "makes it clear that there must be substantial changes to the system before negotiations are necessary." Id. at 13.

Fifth, the Respondent asserts that the Union's proposals are nonnegotiable. The Respondent acknowledges the Authority's decision in Customs. The Respondent asserts, however, that the courts' decisions in U.S. Immigration and Naturalization Service v. FLRA, 834 F.2d 515 (5th Cir. 1987) (INS), and Department of the Navy v. FLRA, 854 F.2d 1 (1st Cir. 1988) (Navy), "effectively overruled" the Authority's decision in Customs. Respondent's Brief in Support of Exceptions at 6.

Finally, the Respondent maintains that it did not violate the Statute because the General Counsel did not allege, and the Judge did not find, that the Respondent's actions were taken in bad faith. The Respondent asserts that proof of bad faith is a necessary element to finding that the Respondent violated section 7116(a)(5) of the Statute and that, as the Respondent declared the Union's proposals nonnegotiable before the Authority issued the decision in Customs, there can be no finding that its declarations of nonnegotiability were made in bad faith.

2. General Counsel's Cross-Exception

The General Counsel asserts that the portions of the Judge's recommended Order and Notice requiring the Respondent to cease and desist from "[u]nilaterally implementing changes concerning the rotation schedule, assignments, staffing and proposals 1, 2, 3, 13 and 14 . . . ," are "potentially confusing." Judge's Decision at 27; General Counsel's Brief in Support of Opposition and Cross-Exception at 3. The General Counsel requests that the Order and Notice be modified to require the Respondent to cease and desist from "[u]nilaterally implementing changes . . . after refusing to bargain with the [Union] . . . over proposals 1, 2, 3, 13 and 14 . . . . " Id. at 3-4.

3. General Counsel's Opposition

The General Counsel notes, first, that consistent with the Judge's findings and reasoning, the charge in this case was timely filed and the complaint was reasonably based on the charge. Second, the General Counsel asserts that the Respondent's assertion that the impact of the changes was de minimis is "ridiculous." Id. at 7.

Next, the General Counsel asserts that the Union's proposals were sufficiently related to the Respondent's changes in the rotation schedule. In this regard, the General Counsel maintains also that the Judge correctly applied Authority precedent to determine that the Union had not waived its right to bargain over the changes.

The General Counsel argues that the courts' decisions in INS and Navy do not affect the viability of the Authority's decision in Customs. The General Counsel asserts that INS does not provide a "coherent analysis" of how, or why, the Union's proposals are nonnegotiable. Id. at 5. The General Counsel notes that Navy involved the management right to lay off. According to the General Counsel, Navy is not "even roughly analogous" to the Union's proposals involved here. Id.

Finally, the General Counsel argues that, consistent with long-standing Authority precedent, an agency "acts at its peril and commits an unfair labor practice when it implements changes . . . after refusing to bargain over union proposals which are subsequently found negotiable by the Authority." Id. at 8 (citations omitted).

D. Analysis and Conclusions

We find first, in agreement with the Judge and for the reasons stated by the Judge, that (1) the charge in this case was timely filed, and (2) the complaint was reasonably related to the charge.

We note that, as emphasized by the Respondent, the charge referred specifically to the implementation of the ACCEPT program. We note also, however, that the charge clearly and unambiguously referred to both the Respondent's letter of February 25, 1985, and the Respondent's implementation of changes on March 4, 1985. It is uncontroverted that the Respondent's letter and the changes did not relate to the ACCEPT program. The Respondent knew, or should have known, that those changes were the ones the Respondent itself proposed on January 14. Moreover, as the charge specifically referenced the changes contained in the complaint, there is no basis on which to find that the complaint should be dismissed.

In addition, we agree with the Judge that the changes involved here had more than a de minimis impact on unit employees. The Judge correctly applied the factors set forth by the Authority in Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) (SSA), in making his determination and we will not further consider the Respondent's arguments to the contrary. We reject, however, the Judge's statement that it was "equitable" to find a bargaining obligation because there was no showing that finding such an obligation "would result in any hardship or would unduly burden . . . the Respondent." Judge's Decision at 19. Nothing in the Statute or Authority precedent supports a conclusion that the existence of a bargaining obligation depends, in any way, on the equity, hardship, or burdens involved.

Next, we reject the Respondent's assertions that it was not required to bargain over the Union's proposals because the proposals were not sufficiently related to the proposed changes. Put simply, the Respondent's proposed changes in the rotation schedule and the Union's proposals were all related to the operation of the rotation schedule. It is clear, therefore, that the proposals were related to the changes.

We note, in this regard, our agreement with the arbitrator's reasoning in the ACCEPT case: a rotation schedule includes, and encompasses, the various conditions of employment addressed in the schedule. These matters include duration, work assignments, work locations, overtime, and the like. As such, agreements on such schedules reasonably encompass the parties' understandings, and trade-offs, on all these matters. Changes in portions of such schedules, therefore, have direct and immediate effects on other portions. We will not, in these circumstances, adopt a rule limiting a party to such an agreement to bargaining over only the exact change proposed by the other party. To do so would be inconsistent with common understandings of collective bargaining agreements as well as with the policies and purposes of the Statute.

We conclude also that the Union did not waive its right to bargain over the changes. It is well and long established that waivers of statutory rights must be clear and unmistakable. See, for example, Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). A waiver may be established by express agreement or by bargaining history. See, for example, Missouri National Guard, Office of the Adjutant General, Jefferson City, Missouri, 31 FLRA 1244, 1247 (1988). A union has a statutory right to bargain over changes in conditions of employment. See generally, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395-97 (1990) (Weather Service).

We reject the Respondent's assertion that Articles 20 and 37 of the parties' master agreement constitute clear and unmistakable waivers of the Union's right to bargain in this case. We note, in this regard, that the Respondent's assertion is not based on the bargaining history of the articles. Compare Department of the Navy, United States Marine Corps (MPL), Washington, D.C. and Marine Corps Logistics Base, Albany, Georgia, 38 FLRA No. 59 (1990) (based on relevant bargaining history, Authority concluded that union had waived its right to be furnished with certain information). Instead, the Respondent relies on the plain wording of Articles 20 and 37.

As noted above, Article 20, section 16 provides only that the Respondent would provide the Union with notice and an opportunity to bargain over "substantial changes in an established rotation system[.]" G.C. Exhibit 3. Article 37 requires only that Union proposals submitted in response to notices of proposed changes be "related to the proposed change(s)and . . . not deal with extraneous matters." Id.

Nothing in the plain wording of these articles supports a conclusion that the Union agreed, in the circumstances of this case, to waive its right to bargain over the Respondent's proposed changes. We note that, as found above, the changes affected 44 unit employees' assignments, duty locations, and sequence of slots. Moreover, as also found above, the Union's proposals were related to the Respondent's proposed changes. Accordingly, whether or not Articles 20 and 37 were intended to constitute waivers of the Union's rights to bargain over insubstantial changes and offer unrelated proposals, the facts herein belie any assertion that the changes were insubstantial or the proposals were unrelated.

We note also, in this regard, that the Respondent's assertions regarding Article 20 are inconsistent with its actions. That is, the Respondent maintains that, under Article 20, it is not required to provide the Union with notice of and an opportunity to bargain over "changes . . . that are not substantial." Respondent's Brief in Support of Exceptions at 13. It is uncontroverted, however, that the Respondent provided notice to the Union of the proposed changes involved here.

Based on the foregoing, we find no basis on which to conclude that Articles 20 and 37 constituted a clear and unmistakable waiver of the Union's rights to bargain. Rather, these articles clearly imposed an obligation on the parties to negotiate over matters such as those involved in this case, in accordance with the procedures set forth in the parties' agreement.

Next, we reject the Respondent's argument that it did not violate the Statute because the Authority's decision in Customs was effectively overruled by the courts in INS and Navy. As an initial matter, we agree with the General Counsel that the court's decision in Navy is inapposite here. The court in Navy held that "[p]reventing Navy management from laying off employees without pay most certainly 'affects' the general authority to lay off employees[.]" 854 F.2d at 5. The court in Navy did not, explicitly or implicitly, address an agency's right to assign work. We will not, therefore, further discuss that decision.

In INS, the court reversed the Authority's determination that the agency was required to bargain over its decision that Immigration and Naturalization Service Inspectors would rotate between work stations every hour. The union had proposed that rotations occur every 30 minutes. The court held that "management has the absolute and unilateral authority to assign and direct an employee's work." INS, 834 F.2d at 517. The court stated that as "management retains complete authority to decide WHEN a particular task is to be performed . . . [,]" an agency has "neither an obligation nor a duty to negotiate with the union as to WHEN an employee is assigned to do a particular task." Id. (emphasis in original). According to the court, the case fell "more closely under an 'assignment of work' classification than a change in a 'condition of employment.'" Id. at 518.

The Authority previously has noted that the court's distinction between assignments of work and conditions of employment has no foundation in the Statute. See Weather Service, 37 FLRA at 398. There is, quite simply, no basis on which to find that the two matters are mutually exclusive. We now find also that, in cases such as the one now before us, we will not adhere to the court's conclusions regarding the right to assign work.

Section 7106(a) of the Statute provides that subject to subsection 7106(b), nothing in the Statute shall affect, as relevant here, management's right to assign work. Consistent with the plain wording of section 7106(a) and long-established Authority precedent, therefore, an agency is required to bargain over procedures by which it exercises its right to assign work and appropriate arrangements for employees who are adversely affected by such assignment. A procedural proposal is negotiable unless it directly interferes with the exercise of the management right. See, for example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 710 (1990) (EPA). An arrangement for adversely affected employees is appropriate, and negotiable, unless it excessively interferes with the exercise of the right. See, for example, id. at 710-11.

Moreover, the right to assign work includes not only the actual assignment. The right also includes the right to determine the qualifications necessary to perform the work to be assigned and, as well, to determine whether individual employees possess the necessary qualifications. See, for example, National Federation of Federal Employees, Local 1437 and United States Army Armament, Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1060-61 (1990). Further, the right encompasses the right to determine what work will be assigned, the position or positions to which the work will be assigned, and when the work will be performed. See, for example, U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 35 FLRA 990, 995 (1990); Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 524 (1990).

In this case, it is apparent that all employees included in the rotation schedule are equally qualified to perform the duties of all the positions in the schedule. The Respondent does not argue to the contrary. That all employees are equally qualified is, in fact, the essence of a rotation: employees move from assignment to assignment for fixed periods.

The Respondent maintains that the proposals are nonnegotiable because they affect "management's right to determine when work will be performed." Respondent's Brief in Support of Exceptions at 5. We disagree. For example, nothing in the Union's proposals interferes in any way with the Respondent's rights to determine what work will be performed or when it will be performed. That is, under the Union's proposals, as under the Respondent's proposed schedule, all work deemed necessary to accomplish the Respondent's mission would be performed at all times the Respondent determined it necessary. Moreover, the Union's proposals would not interfere with the Respondent's ability to assign particular duties to particular employees. Under a rotation system, whatever the duration of the rotation, employees are assigned duties based on their positions on the rotation schedule; assignments are not based on personal identification or characteristics.

Moreover, we reject the Respondent's assertions that the proposals are nonnegotiable because they would interfere with the Respondent's right to ensure "generalized skill[s] among its workers." Respondent's Brief in Support of Exceptions at 8. The Respondent's goal of ensuring that all inspectors are able to perform all the duties of the various rotational assignments is not in dispute here. Whether, or to what extent, 2-week rotations are necessary to reach that goal is a matter to be resolved on the merits. We do not understand the Respondent's argument, in this regard, to be that any duration longer than 2 weeks would interfere with the generalized skills of inspectors and, indeed, common sense dictates otherwise. Whether 6-month, or 1-year, or any other period would undermine the Respondent's goal is a matter to be resolved by the parties, during bargaining on the merits of the Union's proposals or, if necessary, with third-party assistance.

Put simply, the Union's proposals affect only the length of time that equally qualified employees will spend doing work that already has been assigned by the Respondent to those employees. All work that has been assigned by the Respondent would be performed at all times the Respondent assigned it. Moreover, the use of a rotation schedule itself is not in dispute. The Respondent remains free to decide to accomplish its work in another manner. We are unable to conclude, in these circumstances, that the Union's proposals would directly interfere with the Respondent's right to assign work.

In INS, the court concluded that requiring the agency to bargain over the duration of rotations could not "be reconciled with the clear congressional intent to promote effective and efficient government." INS, 834 F.2d at 518. It is clear that, as found by the court, the Statute is to be interpreted in a manner consistent with an effective and efficient Government. 5 U.S.C. § 7101(b). It is equally clear, however, that in enacting the Statute, Congress found that collective bargaining and the protection of employee and union rights is in the public interest. 5 U.S.C. § 7101(a). In this case, we find that the Union's proposals would not interfere with the Respondent's right to assign work. There is, therefore, no conflict between the promotion of collective bargaining and effective and efficient Government.

Accordingly, we adhere to our holding in Customs that the proposals are negotiable. See Customs, 25 FLRA at 733-35. To the extent that the court's decision in INS would mandate a decision that the proposals here are nonnegotiable, we respectfully disagree with the court.

With respect to the Respondent's final exception, a Respondent acts at its peril when it refuses to bargain over proposals subsequently held negotiable by the Authority. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 33 FLRA 454, 458 (1988). Proposals identical to the Union's proposals in dispute here were found to be negotiable in Customs. Bad faith, as asserted by the Respondent, is not a necessary element of finding a violation in these circumstances.

Finally, we agree with the General Counsel that the wording of the Judge's recommended Order and Notice with respect to this case is unclear. We will, accordingly, modify the Order and Notice, as requested by the General Counsel.

For the foregoing reasons, we agree with the Judge that the Respondent violated section 7116(a)(1) and (5) when it implemented changes in unit employees' conditions of employment on March 4, 1985, after refusing to bargain over Union proposals which subsequently were found to be negotiable by the Authority.

III. Case No. 1-CA-70128

A. Background

From 1980 to October 1986, employees assigned to airport relief slots were assigned exclusively at the airport. Likewise, employees assigned to seaport relief slots were assigned to the seaport only. This practice was in accord with agreements between the parties. See, for example, G.C. Exh. 15(f) at para. 6.

On or about October 27, 1986, the Respondent began cross-assigning inspectors from airport to seaport relief slots, and vice versa. Between that date and the date of the unfair labor practice hearing, four such cross- assignments had been made; three assignments were from airport to seaport relief. Judge's Decision at 9.

The Union was not notified of the Respondent's decision to cross-assign inspectors. When the Union learned of the cross-assignments, it requested bargaining. The Respondent did not respond to the Union's bargaining request.

B. Judge's Decision

The Judge found first that the impact of cross-assignments from airport relief slots to seaport relief slots, and vice versa, was more than de minimis. The Judge found that, as of the date of the unfair labor practice hearing, the change had resulted in four employees' work locations, shift hours, and days off being changed, and that at least one employee's commuting time had doubled. The Judge noted also that consistent with "uncontroverted testimony" by the Union's president, an employee's "overtime opportunities and earnings suffer as a result of a cross-assignment." Judge's Decision at 21.

The Judge next found that it was "impossible to determine from a reading of the [parties' master agreement] that the Union agreed . . . to waive any right to bargain over specific matters involving conditions of employment in situations where absences or fluctuations of work loads dictated changes." Id. The Judge found that absent a "clear and unmistakable waiver . . . it can hardly be found that this is a matter merely for contract interpretation." Id. at 22.

The Judge also rejected the Respondent's argument that no employees were reassigned from a seaport slot to an airport slot. According to the Judge, the argument was "factually out of line since the record disclose[d] that four employees who worked in one area were reassigned to work at another." Id.

Finally, the Judge noted that there was "little question" that the Respondent's decision to reassign employees from one division to another constituted the exercise of the Respondent's rights to assign employees and determine the numbers of employees assigned to an organizational subdivision. Id. The Judge found, however, that as the affected employees had already been assigned to rotating positions, "the determination as to which particular employee [would] be assigned to a specific work location, such as an Airport or Seaport slot, [did] not require the exercise of any reserved management right." Id. (citation omitted). The Judge found that as the "substance" of the decision to cross-assign employees was negotiable, "the nature and extent of the impact on affected employees" did not need to be considered. Id. (citation omitted).

The Judge concluded that by failing to provide the Union with notice and an opportunity to bargain over the cross-assignments, the Respondent violated section 7116(a)(1) and (5) of the Statute. The Judge found that a status quo ante remedy was appropriate to remedy the violation "because that change was substantively negotiable, and no special circumstances which would render such relief inappropriate [were] shown." Id. at 26 (citation omitted).

C. The Parties' Positions

1. Respondent's Exceptions

The Respondent filed five exceptions to the Judge's decision. First, the Respondent argues that the Judge erred in concluding that the Respondent reassigned airport relief inspectors to seaport slots, and vice versa. According to the Respondent, the affected employees all volunteered, or agreed, to the cross-assignments. Second, the Respondent argues that the cross-assignments did not constitute reassignments because, in their master agreement, the parties agreed that "the movement of employees within the same post of duty in the same position and grade shall not be considered a reassignment." Respondent's Brief at 21, citing Article 20, section 2(b) of the Master Agreement.

Third, the Respondent maintains that, even if the affected employees were reassigned, there was no "change in practice" because the reassignments were effected because of "emergency conditions." Id. (emphasis deleted). According to the Respondent, the Respondent's actions were consistent with the parties' master agreement.

Fourth, the Respondent argues that, even if the reassignments constituted changes in conditions of employment, it was not obligated to bargain over the changes because the changes did not adversely affect unit employees. The Respondent notes that pursuant to the parties' agreement, inspectors' overtime earnings must be "equalized to the maximum extent possible." Id. at 23, citing Article 22, section 3.A. of the Master Agreement. As such, the Respondent maintains that, because of the cross-assignments, overtime would not be "lost." Id. at 24.

Finally, the Respondent objects to the Judge's finding that the decision to cross-assign employees was negotiable. According to the Respondent, "[m]anagement has the right to assign any position it chooses to do any kind of work." Id. at 25.

2. General Counsel's Opposition

The General Counsel asserts that the Judge's conclusions that the cross-assignments constituted changes in conditions of employment that had more than a de minimis impact on unit employees are amply supported in the record. The General Counsel asserts also that although the Respondent was not obligated to bargain over its decision to reassign employees between the airport and seaport divisions, it was obligated to bargain over the substance of its decision to "make such cross-assignments from employees assigned to relief slots, as opposed to seeking, for example, volunteers among all employees . . . ." General Counsel's Post-Hearing Brief to the Judge at 29, incorporated by reference in General Counsel's Brief in Support of Opposition and Cross-Exception at 9.

D. Analysis and Conclusions

First, we reject the Respondent's assertions, also made to the Judge, that it was not required to bargain over the cross-assignments because (1) the inspectors volunteered for the cross-assignments; (2) the cross-assignments did not constitute reassignments, as defined by the parties in Article 20, section 2(b) of their master agreement; and (3) the cross-assignments were instituted because of "emergency conditions." Respondent's Brief at 21 (emphasis deleted).

With regard to the first two exceptions, the Judge found that at the time of the hearing, four employees had been affected by the institution of cross-assignments in that their "work locations, shift hours and, in some cases, days off were changed[.]" Judge's Decision at 21. In these circumstances, issues of whether or not the four affected employees volunteered for the cross-assignments or whether, consistent with the parties' agreement, the personnel actions properly may be referred to as reassignments is irrelevant. The facts remain that conditions of employment of unit employees were changed by the Respondent without providing the Union with notice and an opportunity to bargain. As for the third exception, the Judge found that the Respondent had not shown that "absences or fluctuations of work loads" necessitated the cross-assignments. Id. The Respondent has not demonstrated that the Judges' finding was erroneous and, as a result, we will not further consider the Respondent's argument that the cross-assignments were necessary because of an emergency.

Next, we reject the Respondent's assertion that it was not required to bargain over the institution of cross-assignments because those assignments did not adversely affect unit employees. We need not, and do not, determine here whether the cross-assignments harmed unit employees because that finding is not necessary to our decision. Stated simply, unit employees' conditions of employment may not be changed unilaterally, absent factors not present in this case. See generally, Weather Service. Accord NLRB v. Katz, 369 U.S. 736, 743 (1962) (under National Labor Relations Act, employer's unilateral change in conditions of employment constituted violation of statutory obligation to bargain). Nothing in the Statute, or Authority case law, supports a conclusion that the change must adversely affect unit employees in order for a bargaining obligation to rise. Compare, for example, National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 29-33 (1986) (nature and extent of impact experienced by employees adversely affected by the exercise of management's rights under section 7106 of the Statute is relevant in determining negotiability of proposals under section 7106(b)(3)). To hold otherwise would undermine the Union's status as exclusive representative of all unit employees and, in addition, would be inconsistent with the policies and purposes of the Statute. We do not, therefore, determine whether, or to what extent, the cross-assignments affected inspectors' overtime earnings.

Finally, as its fifth exception, the Respondent asserts that "[m]anagement has the right to assign any position it chooses to do any kind of work." Respondent's Brief at 25. It appears, in this regard, that the Respondent has misinterpreted the Judge's decision. The Judge held specifically that "there [was] little question but that the decision to reassign an employee from the Airport Division to the Seaport Division involve[d] the exercise of the . . . management right to assign employees . . . or a determination on the numbers of employees assigned to an organizational subdivision . . . ." Judge's Decision at 22.

We agree with the Judge that the Respondent's decision that more, or fewer, inspectors were needed at the seaport or the airport was not bargainable. See, for example, Action Employees Local, American Federation of State, County and Municipal Employees and ACTION, 31 FLRA 1053, 1055 (1988). As noted above in connection with 1-CA-50395, however, nothing in the parties' agreed-upon rotation system prevents the Respondent from assigning necessary work to qualified employees. Indeed, the essence of the rotation system is that all inspectors included in the rotation were equally qualified to perform, and did perform, all the duties encompassed within the rotation. As such, there is no basis on which to conclude that bargaining over the selection of the inspectors to be cross-assigned, as needed, between the seaport or the airport would conflict with the Respondent's rights under section 7106 of the Statute. Moreover, as noted above, nothing in this record indicates that the Respondent's unilateral decision to effect the disputed cross-assignments was necessitated by an emergency. Accordingly, although the decision to reassign an employee between the airport and the seaport was not bargainable, the decision to cross-assign relief inspectors was bargainable.

We conclude, therefore, that by instituting cross-assignments between the seaport and the airport, and vice versa, without providing the Union with notice and an opportunity to bargain, the Respondent violated section 7116(a)(1) and (5) of the Statute. Further, as the decision to cross-assign relief inspectors was negotiable, we agree with the Judge that a status quo ante remedy is necessary to effectuate the policies and purposes of the Statute.

IV. Case No. 1-CA-70129

A. Background

Beginning in 1984, after the Union questioned the Respondent's decision to assign certain intelligence duties to a GS-9 inspector, the Respondent began to assign those duties to a series of GS-11 inspectors. The inspectors performed the intelligence duties on a part-time basis, for brief periods of time. The Respondent's work schedules showed no separate listing for an Intelligence Officer position.

In August 1986, a GS-9 inspector, Theodore Woo, was detailed to a "Designated Intelligence Officer" assignment for 30 days. Judge's Decision at 11. After expiration of the 30-day detail, the inspector was temporarily promoted to the GS-11 level for 60 days. During this time, the inspector continued to be included in a slot in the regular rotation schedule.

By letter dated November 13, 1986, the Respondent notified the Union that it intended to create an "'ACS processing unit[,]'" that would include, among other positions, a "'Designated Intelligence Officer-GS-11 Senior.'" Judge's Decision at 11. The letter indicated also that assignments to the ACS unit would be for 1 year. The Union requested bargaining over, and information concerning, the changes noted in the November 13 letter.

The Respondent provided the Union with a copy of a memorandum dated December 2, 1986, from the Respondent's Assistant District Director to the Chief Inspector of the Inspection and Control Division which provided, in relevant part, that "[e]ffective December 8 . . . adjustments to the work schedule" would be made. Id. at 11. One of the adjustments was the removal of Woo from the regular rotation.

The Union again requested bargaining. The Respondent replied, in pertinent part:

These changes involve the exercise of management's rights pursuant to 5 USC 7106(b)(1). In accordance with this statute, we have the right to determine the numbers, types and kinds of employees assigned to any organizational subdivision, work project or tour of duty. We have carefully reviewed this matter and, since there is no evident adverse impact, we elect not to bargain over this issue. . . .

G.C. Exh. 39.

The changes outlined in the Respondent's November 13 letter were implemented on December 8, 1986. In March 1987, Woo was promoted to the position of Operations Enforcement Analyst, GS-12, and the Designated Intelligence Officer duties were reassigned to that position. The Respondent did not notify the Union of its intention no longer to assign Designated Intelligence Officer duties to GS-9 or GS-11 inspectors.

B. Judge's Decision

The Judge first rejected the Respondent's argument that a Designated Intelligence Officer (DIO) position was not created. The Judge concluded, based on "documentary evidence and the testimony of Respondent's own witness" that "the position was created and subsequently terminated . . . ." Id. at 24.

As with the other changes, the Judge concluded that the impact of the change on unit employees was more than de minimis. The Judge noted, in this regard, that: (1) Woo was removed from the regular rotation schedule; (2) Woo no longer performed the full range of inspection duties; and (3) the creation of the DIO position affected unit employees' "opportunities for advancement . . . ." Id. With respect to the latter point, the Judge noted that it was "certain that once an employee [was] selected for the [DIO] special assignment, all employees who were not selected [were] deprived of an opportunity for exposure to different and potentially career enhancing duties . . . . " Id.

The Judge concluded that the Respondent violated the Statute when it failed to provide the Union with notice and an opportunity to bargain over the changes, and when it unilaterally (1) created and filled a new DIO special assignment; and (2) terminated the assignment and determined no longer to assign intelligence duties to GS-9 and GS-11 inspectors. To remedy the violation, the Judge found, based on evaluation of the factors discussed in Federal Correctional Institution, 8 FLRA 604, 606 (1982) (FCI), that a status quo ante remedy was appropriate. The Judge noted, in this regard, that there had been no showing that a restoration of the status quo would be disruptive to the Respondent's operations.

C. The Parties' Positions

1. Respondent's Exceptions

The Respondent excepts only to the Judge's recommended status quo ante remedy, and the Judge's recommendation that the required Notice be posted nationwide.

The Respondent argues that, as the DIO position was terminated in March 1987, the required status quo ante has already been achieved. The Respondent asserts that "[c]onsidering the short duration of the illegally established position, the lack of bad faith on the part of management, and the corrective action of returning to the status quo ante," an appropriate remedy "would be simply a posting." Respondent's Brief at 27. The Respondent asserts also that reestablishing the DIO position would require the Respondent to use one of the slots in the regular rotation schedule to duplicate work already being performed by the Operations Enforcement Analyst. The Respondent maintains that as it now has a significant staffing shortage, the remedy would be unduly disruptive to its operations.

With respect to the scope of the posting, the Respondent notes that all three complaints involved in this case concerned only the Port of Boston. The Respondent asserts, therefore, that it is appropriate to require that a Notice be posted only in "the Port of Boston or the District of Massachusetts at the most." Id. at 29.

2 General Counsel's Opposition

The General Counsel argues that a status quo ante remedy is appropriate. According to the General Counsel, there has been no showing that requiring the Respondent "to return to a practice which it had previously voluntarily followed, would prove disruptive." General Counsel's Post-Hearing Brief to the Judge at 36, incorporated by reference in General Counsel's Brief in Support of Opposition and Cross-Exception at 9.

The General Counsel does not oppose the Respondent's request it be required to post a Notice in facilities in the Boston District only, however. The General Counsel notes that "[t]his was the level where the unfair labor practices occurred and where the affected employees are located." General Counsel's Brief in Support of Opposition and Cross-Exception at 9.

D. Analysis and Conclusions

We note first that, except for the Judge's recommended remedial order, the Respondent does not except to any of the Judge's findings and conclusions in this case. Accordingly, we adopt those findings and conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute when it unilaterally created, and then terminated, the Designated Intelligence Officer position.

With respect to the remedy, the Respondent maintains that a status quo ante order is not appropriate because (1) the improperly established Designated Intelligence Officer position has already been disestablished, and (2) requiring the position to be reestablished would impair the effectiveness and efficiency of the Respondent's operations.

We agree with the Respondent that, in the circumstances of this case, a status quo ante remedy is inappropriate. We note as an initial matter, however, that the Judge's recommended remedy appears to be inconsistent with the complaint in this case and with the remedy sought by the General Counsel. The complaint in this case alleged that the Respondent violated the Statute by creating and terminating the DIO position. See G.C. Exh. O, paras. 9(c) and (d). That is, the complaint alleged that conditions of employment of unit employees, who previously performed intelligence duties as part of their regular positions, were changed when the Respondent assigned those duties to the new DIO position. As such, requiring the Respondent again to create the DIO position is not an appropriate remedy.

However, we find that a status quo ante remedy properly tailored to this case--a remedy requiring the Respondent again to assign intelligence duties to officers as part of their regular assignments--is inappropriate here. First, it is clear to us that the creation of the DIO position, as well the assignment of the intelligence duties to the subsequently created Operations Enforcement Analyst position, resulted from the exercise of the Respondent's right to assign work. See, for example, U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 35 FLRA 990, 995 (1990). It is also clear that, as found by the Judge, the Respondent was required to bargain with the Union over the impact and implementation of its decision. See generally Weather Service. As the Respondent was required to bargain only over the impact and implementation of its decision, a status quo ante remedy is permissible, but is not required. See, for example, Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 951-53 (1990).

The disputed intelligence duties, which were previously assigned to the improperly created DIO position, are now assigned to the Operations Enforcement Analyst position. Although the Respondent does not except to the Judge's conclusion that it violated its bargaining obligations by creating and terminating the DIO position, we conclude that a requirement that the Respondent reinstitute its previous practice of assigning intelligence duties to GS-11 inspectors, on a rotating basis, would be meaningless. See U.S. Department of Labor, Occupational Safety and Health Administration, 24 FLRA 743, 746 (1986). In these circumstances, we find that an order requiring the Respondent to cease and desist from changing conditions of employment without satisfying its bargaining obligations, coupled with an order requiring the Respondent to bargain, upon request of the Union, over appropriate arrangements for employees who were adversely affected by the change, provides a full and appropriate remedy.

Finally, we conclude that, consistent with the Respondent's request, which is not opposed by the General Counsel, we will modify the scope of the posting recommended by the Judge so as to require the Notice to be posted throughout the Boston District only.

V. Remedies

For the reasons discussed above, we conclude that, in Case No. 1-CA-50395, the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing changes in unit employees' conditions of employment on March 4, 1985, after refusing to bargain over proposals subsequently held negotiable by the Authority. To remedy this unfair labor practice, the Judge recommended that the Respondent be directed to bargain, on request of the Union, over the proposals subsequently found negotiable. Except with respect to the particular wording of the recommended Order and Notice, no exceptions were filed to the Judge's remedy. Accordingly, as modified to clarify the Respondent's bargaining obligation, we adopt the Judge's recommended remedy.

In Case No. 1-CA-70128, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by instituting cross-assignments without providing the Union with notice and an opportunity to bargain. Further, for reasons discussed previously, we conclude that the Respondent was required to bargain over its decision to cross-assign relief inspectors. We will, therefore, for the reasons provided by the Judge, require the Respondent to return to the status quo ante.

Finally, in Case No. 1-CA-70129, we conclude that the Respondent violated section 7116(a)(1) and (5) by refusing to bargain with the Union over the creation and termination of the DIO position. We will modify the Judge's recommended remedy to require the Respondent, among other things, to bargain with the Union over appropriate arrangements for employees who were adversely affected by the Respondent's improper creation and termination of the DIO position.

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Customs Service, Washington, D.C., and the U.S. Customs Service, Northeast Region, Boston, Massachusetts, shall:

1. Cease and desist from:

(a) Unilaterally implementing changes in the rotation schedule for inspectors in the Northeast Region without bargaining with the National Treasury Employees Union and the National Treasury Employees Union, Chapter 133, the exclusive representative of these employees, to the extent consistent with law and regulations, on the decision to effectuate such changes, and in particular on Union Proposals 1, 2, 3, 13 and 14, which were made in the course of the parties' bargaining, and which were subsequently found to be negotiable by the Authority in National Treasury Employees Union and U.S. Customs Service, 25 FLRA 731 (1987).

(b) Unilaterally changing conditions of employment for inspectors in the Northeast Region by instituting cross-assignments of relief inspectors without giving the Union adequate notice and an opportunity to bargain, to the extent consistent with law and regulations, on the decision to effectuate such a change.

(c) Unilaterally instituting a special assignment for a Senior Inspector, GS-11, to act as the Designated Intelligence Officer within the Northeast Region, and later unilaterally terminating that special assignment, without giving the Union adequate notice and an opportunity to bargain, to the extent consistent with law and regulations, on the decision to effectuate such changes.

(d) In any like or related manner, interfering with, restraining or coercing their employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute.

(a) Upon request, bargain, to the extent consistent with law and regulation, with the Union over the changes implemented in the rotation schedule for inspectors in the Northeast Region on March 4, 1985, and in particular, over Union Proposals 1, 2, 3, 13, and 14.

(b) Upon request by the Union, rescind the policy implemented in October 1986 of cross-assigning relief inspectors.

(c) Notify the Union of any intention to change the policy regarding cross-assignments within the Northeast Region and, on request, bargain with the Union, to the extent consistent with law and regulation, on any decision to change the policy.

(d) Upon request of the Union, bargain to the extent consistent with law and regulation, over appropriate arrangements for employees who were adversely affected by the Respondent's creation and termination of the Designated Intelligence Officer position.

(e) Post at their facilities in the Northeast Region 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 Regional Commissioner, and shall be posted and maintained for 60 consecutive days in conspicuous places, including all bulletin boards and 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.

(f) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally implement changes in the rotation schedule for inspectors in the Northeast Region without bargaining with the National Treasury Employees Union and the National Treasury Employees Union, Chapter 133, the exclusive representative of these employees, to the extent consistent with law and regulations, on the decision to effectuate such changes, and on Union Proposals 1, 2, 3, 13, and 14, which were made in the course of the parties' bargaining, and which were subsequently found to be negotiable by the Authority in National Treasury Employees Union and U.S. Customs Service, 25 FLRA 731 (1987).

WE WILL NOT unilaterally change conditions of employment for inspectors in the Northeast Region by instituting cross-assignments of relief inspectors without giving the Union adequate notice and an opportunity to bargain, to the extent consistent with law and regulations, on the decision to effectuate such a change.

WE WILL NOT unilaterally institute a special assignment for a Senior Inspector, GS-11, to act as the Designated Intelligence Officer within the Northeast Region, and later unilaterally cancel such a special assignment, without giving the Union adequate notice and an opportunity to bargain.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce our employees in the exercise of the rights assured them by the Statute.

WE WILL, upon request, bargain, to the extent consistent with law and regulation, with the Union over the changes implemented in the rotation schedule for inspectors in the Northeast Region on March 4, 1985, and in particular, over Union Proposals 1, 2, 3, 13, and 14.

WE WILL, upon request by the Union, rescind the policy implemented in October, 1986 of cross-assigning relief inspectors.

WE WILL bargain with the Union, to the extent consistent with law and regulation, over appropriate arrangements for employees who were adversely affected by the creation and termination of the Designated Intelligence Officer position.

____________________________
(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 I, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046 and whose telephone number is: (617) 565-7280.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ Unless otherwise noted, all remaining dates used in the discussion of this case are in calendar year 1985.

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