44:1128(92)CA - - Customs Service, SW Region, El Paso, TX and NTEU - - 1992 FLRAdec CA - - v44 p1128
[ v44 p1128 ]
The decision of the Authority follows:
44 FLRA No. 92
FEDERAL LABOR RELATIONS AUTHORITY
UNITED STATES CUSTOMS SERVICE
EL PASO, TEXAS
NATIONAL TREASURY EMPLOYEES UNION
DECISION AND ORDER
May 4, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by changing bargaining unit employees' shifts and tours of duty without providing the Union with adequate notice of the changes and affording the Union an opportunity to bargain over the impact and implementation of the decision. The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition to the Respondent's exceptions.(1)
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the Judge's rulings made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
In so doing, we disagree with the Respondent's contention that the preponderance of the evidence does not support the Judge's conclusion that the changes made by the Respondent resulted in a reduction of earning opportunities for bargaining unit employees. Rather, on review of the record, we conclude, as did the Judge, that the change in shifts and tours of duty had more than a de minimis effect on the employees' ability to earn overtime, night differential and Sunday premium pay.(2) We also agree with the Judge, for the reasons he stated, that the subpoenaed documents, which were not produced until after the hearing closed, should not be part of the record for the purpose of determining the adverse effect of the changes on the employees' earnings. Such documents may, of course, be supplied during the compliance portion of these proceedings.
Finally, based on our conclusion that the Respondent violated the Statute and, accordingly, committed an unjustified personnel action that resulted in the reduction of earnings opportunities for bargaining unit employees, we disagree with the Respondent's argument that a backpay award is improper. Nothing in our decision in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and U.S. Department of Health and Human Services, Social Security Administration, Hartford District Office, Hartford, Connecticut, 37 FLRA 278 (1990), requires a finding, as suggested by the Respondent, that backpay cannot be awarded if a status quo ante award is deemed to be inappropriate. Rather, the Authority will find that a backpay award is appropriate to remedy a refusal to bargain over the impact and implementation of a decision whenever an employee has been affected by an unjustified or unwarranted personnel action that resulted in a withdrawal or reduction in the employee's pay, allowances or differentials. Id. at 290. See also U.S. Department of the Treasury, Customs Service, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 38 FLRA 163, 175-76 (1990). (Authority denied exceptions to arbitrator's award ordering backpay to compensate employees who lost holiday pay when the agency changed its method of calculating holiday pay without notifying the union and bargaining over the impact and implementation of the change).
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the United States Customs Service, Southwest Region, El Paso, Texas, shall:
1. Cease and desist from:
(a) Instituting any change in the tours of duty or work shifts of inspectors in the El Paso Cargo Branch without first notifying the National Treasury Employees Union, the exclusive collective bargaining representative of its employees, and affording such bargaining representative the opportunity to negotiate the impact and implementation of such change.
(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) Compensate those bargaining unit inspectors who are entitled to backpay with appropriate premium pay for the periods during which tours of duty and work shifts were changed at the Bridge of the Americas (BOTA) Import Lot and at the Cargo Enforcement Station (CES) Lot.
(b) Post at its facilities in the El Paso, Texas area 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 of the Southwest Region, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director,