23:0090(10)CA - Justice, INS , Border Patrol, Laredo, TX and AFGE, NBPC, Local 2455 -- 1986 FLRAdec CA



[ v23 p90 ]
23:0090(10)CA
The decision of the Authority follows:


 23 FLRA No. 10
 
 DEPARTMENT OF JUSTICE
 UNITED STATES IMMIGRATION AND 
 NATURALIZATION SERVICE
 UNITED STATES BORDER PATROL 
 LAREDO, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, NATIONAL BORDER PATROL 
 COUNCIL, AFL-CIO, LOCAL 2455
 Charging Party
 
                                            Case No. 6-CA-30309
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This case is before the Authority based on exceptions to the attached
 Administrative Law Judge's Decision filed by the General Counsel and the
 American Federation of Government Employees, National Border Patrol
 Council, AFL-CIO, Local 2455 (the Union).  An opposition to these
 exceptions was filed by the Respondent.  The complaint, as amended,
 basically alleged two things:  the Respondent violated section
 7116(a)(1) and (5) of the Statute by failing to notify the Union and
 refusing to bargain over the procedures to be observed in implementing
 revisions in shift and rotation schedules and appropriate arrangements
 for employees adversely affected by such changes;  and the Respondent
 violated section 7116(a)(1) and (5) of the Statute by refusing to
 maintain the existing shift and rotation schedules to the maximum extent
 possible during the pendency of a question concerning representation
 (QCR).
 
                              II.  Background
 
    The facts are fully set out in the Judge's Decision.  Briefly, they
 indicate that during the time the events in this case occurred, a
 question was pending concerning representation of, among others,
 employees located at the Respondent's Laredo Station.
 
    In April 1983, the Union learned that the Respondent was planning a
 change in the shift and rotation schedules for employees of the Laredo
 Station.  The Union filed a grievance based on management's failure to
 provide it with views on the matter.  The parties met, also in April, at
 which time various elements of the proposed change were discussed.  The
 Union then requested bargaining, which request was denied and the new
 schedule was implemented in May.  Another shift and rotation change was
 implemented the following September.  The Union received notification
 prior to this change but did not request bargaining.
 
                          III.  Judge's Decision
 
    The Judge recommended dismissal of the amended complaint in its
 entirety.  As to the failure to maintain existing conditions of
 employment during the QCR, the Judge cited the Authority's decision in
 United States Department of Justice, United States Immigration and
 Naturalization Service, 9 FLRA 253 (1982), in which we determined that
 agency management is required to maintain existing conditions of
 employment, to the maximum extent possible, during the pendency of a QCR
 unless changes in those conditions of employment are required consistent
 with the necessary functions of the agency.  The United States Court of
 Appeals for the Fifth Circuit, on appeal, reversed certain of the
 Authority's unfair labor practice findings on the basis that the
 particular changes in that case involved the exercise of management's
 rights under the Statute, but stated that its decision "should not be
 read as invalidating the rule." United States Department of Justice,
 United States Immigration and Naturalization Service v. FLRA, 727 F.2d
 481, 489 (5th Cir. 1984).  Here, the Judge applied this rule to the
 particular circumstances of the case and found that the changes in shift
 rotation schedules were required consistent with the necessary
 functioning of the agency and, also, were matters covered by section
 7106(b)(1) of the Statute.  /1/ The Judge concluded, therefore, that
 there was no obligation to bargain over the substance of the changes.
 As to the other allegation of the complaint involving a refusal to
 bargain over procedures and appropriate arrangements of changes in the
 shift and rotation schedules, the Judge found that section 7116(d) of
 the Statute /2/ barred processing of the unfair labor practice
 allegation concerning one of the changes and that the Union had failed
 to request bargaining over the other change.
 
                       IV.  Positions of the Parties
 
    The General Counsel excepted to a number of findings and conclusions
 of the Judge, specifically, the following:  that the April meeting
 between the Respondent and the Union was a grievance meeting;  that the
 grievance covered the May shift and rotation schedule changes;  that the
 Union was given timely notice of the September change;  and that section
 7116(d) of the Statute bars processing of the unfair labor practice
 allegation concerning the May shift and rotation schedule changes.
 Rather, the General Counsel argues that the Respondent unlawfully
 refused to bargain over the impact and implementation of the May and
 September shift changes.  Further, the General Counsel asserts that the
 changes were not consistent with the necessary functioning of the agency
 so that their implementation during the pendency of a QCR violated
 section 7116(a)(1) and (5) of the Statute.
 
    The Union excepted to the Judge's finding that the Union was given
 reasonable notice of the changes, arguing that the Respondent breached
 the parties' contractural requirement that at least 10 days notice be
 given.  The Union also argued that the subject of shift changes was
 within the duty to bargain.  Finally, the Union expressed its
 disagreement with the Court's decision in Immigration and Naturalization
 Service v. FLRA.
 
    The Respondent generally opposed the exceptions of the General
 Counsel and the Union.  The Respondent also made certain arguments it
 wished the Authority to consider in the event the Judge's findings and
 conclusions were reversed.
 
                               V.  Analysis
 
    We find, as did the Judge, that the changes in the shift and rotation
 schedules which involved the exercise of management's section 7106(b)(1)
 rights were necessary for the Respondent to perform its mission;  that
 is, the changes were consistent with the necessary functioning of the
 agency.  As noted by the Judge in his Decision, the Respondent is
 engaged in law enforcement activities.  The changes made were deemed
 necessary "to permit the Laredo Station to effectively police the border
 and to perform its duties most effectively." Therefore, the Respondent's
 conduct in making these particular changes during the pendency of a
 question concerning representation was not violative of section
 7116(a)(1) and (5) of the Statute.
 
    We also adopt the Judge's finding that no violation of the Statute
 occurred with respect to the Respondent's alleged failure to bargain
 over the procedures to be observed in implementing the changes as well
 as on appropriate arrangements for employees adversely affected by such
 changes.  As to the change in shift and rotation schedules that were
 implemented in May, we find that section 7116(d) of the Statute bars
 processing of this portion of the complaint.  Record evidence indicates
 that a grievance was filed and processed with regard to this change.
 Therefore, the Union selected the procedure it wished to pursue and
 processing of the same issue as an unfair labor practice is precluded.
 /3/
 
    Finally, as to the change in shift and rotation schedules implemented
 in September, we find, as did the Judge, that the Union never requested
 bargaining after having received notice of the change.  Therefore, the
 Respondent did not unlawfully refuse to bargain.  U.S. Department of
 Treasury, Internal Revenue Service, Philadelphia Service Center, 16 FLRA
 749 (1984);  General Services Administration, 15 FLRA 22 (1984).
 
                              VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision and the entire record in this case, and adopts the
 Judge's findings, conclusions and recommended Order.  The Authority
 therefore concludes that the complaint must be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 6-CA-30309 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., August 12, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 6-CA-30309
 
    UNITED STATES DEPARTMENT OF JUSTICE IMMIGRATION 
    AND NATURALIZATION SERVICE, UNITED STATES BORDER 
    PATROL SECTOR, LAREDO, TEXAS
         Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
    NATIONAL BORDER PATROL COUNCIL, AFL-CIO, Local 2455
         Charging Party
 
 
    Shirley A. Epperson
    Dennis L. Elkberg
    For Respondent
 
    James P. Jones
    For Charging Party
 
    Elizabeth Martinez
    For General Counsel, FLRA
 
    Before:  SAMUEL A. CHAITOVITZ
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101 et seq., 92 Stat. 1191, (hereinafter referred to as the
 Statute), and the Rules and Regulations of the Federal Labor Relations
 Authority (FLRA), 5 C.F.R.  Chapter XIV, Section 2410, et seq.
 
    An unfair labor practice charge was filed on July 7, 1983 by Local
 2455 American Federation of Government Employees, National Border Patril
 Council, AFL-CIO /4/ alleging that U.S. Immigration and Naturalization
 Service, U.S. Border Patrol (hereinafter called Respondent or Border
 Patrol) violated Sections 7116(a)(1) and (5) of the Statute.  Based upon
 the foregoing on October 6, 1983 the General Counsel of the FLRA, by the
 Director of Region 6, issued a Complaint and Notice of hearing.
 Respondent filed a timely Answer denying that it had violated the
 Statute.
 
    A hearing was held before the undersigned in Laredo, Texas.
 Respondent, Charging Party and General Counsel of the FLRA were
 represented and afforded full opportunity to be heard, to examine and
 cross-examine witnesses, to introduce evidence and to argue orally.
 Post hearing briefs were filed and have been fully considered.
 
    Based upon the entire record in this matter, /5/ my observation of
 the witnesses and their demeanor, and from my evaluation of the
 evidence, I make the following:
 
                             Findings of Fact
 
    At all times material the Council has been the exclusive collective
 bargaining representative for a unit of Respondent's employees that
 includes those assigned to the Laredo Border Patrol Station.  The
 Council and the United States Immigration and Naturalization Service
 (hereinafter called INS) were parties to a collective bargaining
 agreement, covering the afforedescribed unit, which expired on September
 30, 1978.  On January 19, 1978 the International Brotherhood of Police
 Officers (IBPO) files a representation petition with the FLRA and an
 election was conducted.  The Council filed timely objections and the
 FLRA issued a decision in which the objections were sustained and a
 second election ordered.  The FLRA was sustained by the Fifth Circuit
 Court of Appeals.  United States Department of Justice, United States
 Immigration and Naturalization Service, 9 FLRA 253 (1982) affirm'd sub
 nom.  United States Department of Justice, United States Immigration and
 Naturalization Service v. FLRA, 727 F.2d 481 (5th Cir., March 19, 1984).
  During the period the above described representation case was pending,
 the Council continued to represent Respondent's employees and the
 parties continued to give effect and operate under the terms of the
 collective bargaining agreement.
 
    The INS is divided into regions, one of which is the Southern Region,
 which are in turn divided into sectors which are in turn divided into
 stations.  One of the sectors of the Southern Region is the Laredo
 Sector which contains the Laredo Station, among other stations.
 Approximately sixty-seven bargaining unit employees were employed at the
 Laredo Station during 1983.  At all material times, William Selzer held
 the position of Chief Patrol Agent (CPA) of the Laredo Sector and Miguel
 Vallina occupied the position of Assistant Chief Patrol Agent (ACPA).
 Joe Trevino held the position of Patrol Agent In Charge (PAIC) of the
 Laredo Station and James Fulgham was the Assistant Patrol Agent In
 Charge (APAIC).
 
    The Council had a president and five vice-presidents.  The
 vice-presidents had responsibility at the regional level.  Below the
 regional level, there are local presidents that had responsibility at
 the sector level.  At all times material herein, Benito Lopez was the
 President of AFGE Local 2455, which covers the Laredo Sector.
 
    On April 20, 1983 AFGE Local 2455 President Lopez asked PAIC Trevino
 whether rumors which were circulating concerning a change in the shift
 schedules were accurate.  Trevino stated that on May 1, 1983 the shifts
 would in fact be rolled back two hours.  /6/ Lopez noted that the union
 had not received prior official notice of the proposed change and that
 there was insufficient time prior to the implementation date of May 1
 for the union to submit proposals.  Trevino stated that the change would
 go into effect on May 1, 1983.
 
    On April 21, 1983 AFGE Local 2455 filed a grievance under the
 collective bargaining agreement concerning management's failure to
 provide the union with timely written notice of the proposed changes and
 to allow the union to present its views on the matter.  /7/ AFGE Local
 2455's grievance stated:
 
          In accordance with Article 32-Grievance Procedure in the
       negotiated agreement between the American Federation of Government
       Employees National Border Patrol Council and the U.S. Immigration
       and Naturalization Service, I hereby submit this formal grievance
       on behalf of all union members and all Border Patrol Agents in the
       Laredo Station.
 
          On April 20, 1983 PAIC Joe Trevino, of the Laredo Station,
       advised me, upon my request, that all Border Patrol Agents in the
       Laredo Station would be divided into eight (8) units of squads
       headed by one supervisor.  PAIC Trevino also advised me that all
       the shifts would be rolled back two (2) hours.  The new Shifts
       would be from 6A-2P, 2P-10P, 10P-6A, 9P-5A.  Implementation, as
       stated by PAIC Trevino, would be on May 1, 1983.
 
          PAIC Joe Trevino has violated Article 3 section G of the
       negotiated agreement between the American Federation of Government
       Employees National Border Patrol Council and the U.S. Immigration
       and and Naturalization Service.  Violations are that PAIC Trevino
       failed to notify in writing, The Union, of proposed changes in
       personnel policies, practices, or working conditions and that PAIC
       Trevino violated the same article by not allowing The Union, to
       present its views to the proposed change or its impact.
 
    On April 22, 1983 Trevino and ACPA Vallina informed Lopez that they
 had reconsidered their decision to implement the change on May 1, 1983,
 and that there would be a meeting between management and the union on
 April 29, 1983, at 1 p.m. in Vallina's office to discuss the matter.
 During the afternoon of April 22, 1983, CPA Selzer gave the same
 information to Lopez.  In addition, Selzer informed Lopez that since
 management did not intemd to implement the change on May 1, he
 considered the grievance to be moot and did not intend to issue a
 written response to the grievance as is required by Article 32, Section
 E of the contract.  /5/
 
    On April 29, 1983 a meeting was held between Respondent and AFGE
 Local 2455, as scheduled.  Present for AFGE Local 2455 were Lopez, AFGE
 Local 2455 Treasurer Joe Bradley, and Conrado Villanueva.  Present for
 Respondent were Vallina, Trevino, and Fulgham.  This was a meeting held
 to discuss the grievance pursuant to provisions of Article 32E, Step II
 of the collective bargaining agreement.  Vallina stated that Respondent
 intended to begin operating on an eight shift system as opposed to the
 four shift operation that existed at the time.  Vallina further stated
 that employees would be selected for the various shifts under a draft
 system comparable to that used in professional football.  AFGE Local
 2455 requested more specific details concerning the draft system and the
 implementation of the change, but Respondent responded that the details
 of the plan had not yet been finalized.  At the meeting on April 29,
 1983 AFGE Local 2455 was not advised of the details such as the hours of
 the various shifts, the exact way the draft would work and the names of
 employees assigned to these shifts.  At the close of the meeting, the
 Union requested a written copy of the proposed shift change.  Vallina
 informed Lopez that the Selzer had denied the request for a written copy
 without specifying any reason for the denial.
 
    By letter dated May 9, 1983 AFGE Local 2455 set forth examples of
 adverse impact of the changes and requested to bargain concerning the
 proposed changes.  By letter dated May 16, 1983 Selzer denied the
 bargaining request and stated the new shifts would be implemented.  The
 new shift schedule was implemented on May 29, 1983.
 
    A few days before the implementation date, Lopez found a copy of the
 new schedule marked "union" and a blank scheduling form in his mailbox.
 Lopez did not know who had put them there.  According to the schedule,
 the hours of the shifts in the actual order of rotation were as follows:
  12:00 a.m.-8:00 a.m., 5:00 p.m.-1:00 a.m., 10:00 p.m.-6:00 a.m., 4:00
 p.m.-12:00 a.m., 2:00 p.m.-10:00 p.m., 6:00 a.m.-2 p.m. (signcutting),
 /9/ 6:00 a.m.-2:00 p.m. (regular day shift), and 8:00 a.m.-4:00 p.m.
 
    Because border patrol agents would rotate to a new shift every two
 weeks, under this new shift and rotation schedule agents were assigned
 to work ten weeks of consecutive night shifts.  Under the prior
 four-shift system, employees worked six weeks of consecutive night
 shifts.  The change to the eight-shift system might reasonably
 foreseeably have an adverse impact upon the health and personal
 situations of bargaining unit employees.  Specifically, it might
 reasonably be anticipated that the increase in night shift assignments
 would cause employees to become fatigued and irritable, thereby
 decreasing their reaction time in critical situations and increasing
 their usage of sick leave.  Further, the excessive night-shift work
 might reasonably create serious conflicts in employees' marital and
 family relationships.  In addition, the reduced size of shifts might
 reasonably foreseeably cause hardships for employees who needed
 particular days off each week to attend college classes.  /10/ The new
 system might reasonably be foreseen to adversely affect employees who
 had been actively involved in religious, civic, and social functions.
 
    On or about August 27 or 28, 1983, Lopez found a copy of a routing
 slip dated August 26, 1983 in his mailbox which was addressed to all
 supervisors from APAIC Fulgham.  The slip stated that effective
 September 4, 1983 the shift and rotation schedule would be further
 revised.  Pursuant to this revision, the new shifts in the proper order
 of rotation were listed as follows:  11:00 p.m.-7:00 a.m., 3:00
 p.m.-11:00 p.m., 4:00 p.m.-12:00 a.m. or 5:00 p.m.-1:00 a.m., 7:00
 a.m.-3:00 p.m. and 6:00 a.m.-2:00 p.m. (signcutting shift).  Thus, this
 new five-shift schedule changed the former eight-shift schedule by
 eliminating the following three shifts:  (1) 10:00 p.m.-6:00 a.m., (2)
 2:00 p.m.-10:00 p.m., and (3) 6:00 a.m.-2:00 p.m. (regular day shift).
 Under this system, employees were assigned to work six weeks of
 consecutive night shifts and four weeks of day shifts.  The new schedule
 was in fact implemented on September 4, 1983.  Lopez testified that the
 slip had been put in his box sometime when he was on leave and that he
 did not discover it until on or about August 27 or 28, 1983.  AFGE Local
 2455 did not request to bargain and no bargaining occurred over the
 shift and rotation change that was implemented on September 4, 1983.
 
    The record establishes that, prior to the May 29, 1983 and September
 4, 1983 shift changes, Respondent had made changes and adjustments in
 shifts, including the establishment and removal of specific shifts
 (commando, train, etc.).  However none of the previous changes or
 adjustments were of the magnitude nor so all affecting as the changes
 that are subjects of the instant case.
 
    The May 29, 1983 and September 4, 1983 shift changes were made by
 Respondent, pursuant to the best available intelligence, in order in its
 view, to intercept illegal aliens as effectively as possible.
 
    Article 28 of the Collective bargaining agreement provides:
 
            ARTICLE 28 - Tours of Duty (Border Patrol Council)
 
          A.  The parties of this agreement recognize that the Agency
       must, to carry out its mission, vary tours of duty.  In the
       interest of good employee morale, it is agreed that changes in an
       employee's scheduled hours of duty shall be kept to the minimum
       necessary to accomplish the mission of the Agency.
 
          B.  Assignment to tours of duty shall be posted five days in
       advance in the appropriate work area covering at least a two week
       period.
 
          C.  Except in an emergency, the Agency agrees to schedule eight
       (8) hours between changes in shifts, and when practical will
       schedule more time between shifts.
 
          D.  Any employee may retain a carbon copy of his DJ-296 and/or
       Form I-50 if he so desires.
 
          E.  The Agency agrees that maximum effort will be made to
       assign consecutive days off duty.
 
          F.  The administrative workweek shall be seven consecutive
       days, Sunday through Saturday.
 
          G.  Breaks in working hours of more than one hour shall not
       normally be scheduled in any basic workday.
 
          H.  When practical, an employee shall be given 24 hours advance
       notice of individual shift changes.  Exceptions to this provision
       may be made where there is mutual agreement between the employees
       and supervisors involved.  Individuals involved in a change of
       tour should be notified of the reasons for the change.
 
          I.  Where mutually agreeable to all employees affected
       employees may trade shifts out of the normal rotation consistent
       with the needs of the Service.
 
                     Discussion and Conclusions of Law
 
    General Counsel of the FLRA alleges that Respondent violated Sections
 7116(a)(1) and (5) of the Statute by implementing revisions and changes
 in shift and rotation schedules at the Laredo Border Patrol Station on
 May 29, 1983 and on September 4, 1983 without providing AFGE Local 2455
 proper notice and without bargaining concerning the revisions and
 changes and without bargaining over the procedures to be observed in
 implementing the changes and appropriate arrangements for adversely
 affected employees.  /11/
 
    The General Counsel of FLRA recognizes that the establishment of a
 shift or tour of duty involves the "numbers, types and grades of
 employees or positions assigned to any organizational subdivision, work
 project or tour of duty" within the meaning of Section 7106(b)(1) of the
 Statute and is therefore negotiable only at the discretion of the
 agency.  U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA
 116 (1982).  Thus it is recognized by the General Counsel of the FLRA
 that, absent more, the Border Patrol was not obliged to bargain
 concerning the substance of the substantial and far reaching shift
 changes made on May 29, 1983 and September 4, 1983.  /12/ General
 Counsel of the FLRA contends that Respondent violated Sections
 7116(a)(1) and (5) of the Statute by making unilateral changes in shift
 and rotation schedules of employees at the Laredo Station during the
 pending of a representation case, which changes were not "required
 consistent with the necessary functioning of the Agency." United States
 Department of Justice, United States Immigration and Naturalization
 Service, 9 FLRA 253 (1982) enforcement denied sub nom. United States
 Department of Justice, United States Immigration and Naturalization
 Service v. FLRA, 727 F.2d 481 (5th Cir., March 19, 1984).  In this case,
 involving the same parties as in the subject case, the FLRA held that
 during the pendency of the question concerning representation Respondent
 was obligated to maintain existing conditions of employment, except
 Respondent could make such changes as were required consistent with the
 necessary functioning of the agency.  In that case the changes
 implemented concerned traffic check points and uniforms and the
 Administrative Law Judge concluded that the reasons for the changes were
 of long-standing origin and were merely desirable, rather than essential
 or necessary to the functioning of the agency, and further were made
 during the election period because management felt the election turmoil
 could weaken the union's response to the changes.  /13/ The Court of
 Appeals concluded that the changes made by the agency were management
 rights covered by Section 7106 of the Statute and that the pendency of
 the representation case did not negate management's right to make the
 changes.
 
    In the subject case I am constrained to follow the holdings of the
 FLRA /14/ and in so doing I conclude that, in the subject case, the
 shift and schedule changes made by Respondent were "required consistent
 with the necessary functioning of the agency." In so concluding I rely
 on the facts that the Border Patrol is engaged law enforcement
 entrusted, inter alia, with intercepting illegal aliens attempting to
 cross our national borders.
 
    In the judgment of the Border Patrol the shift changes made in the
 subject case were perceived by Respondent as necessary in order to
 permit the Laredo Station to effectively police the border and to
 perform its duties most effectively.  They were not just desirable
 changes, they were changes deemed necessary by Respondent's officials,
 based on the best intelligence available, to effectively stop the
 maximum number of illegal aliens.  Thus, noting also the period of time
 during which the representation case was pending, it is concluded that
 the shift changes made on May 29 and September 4 were consistent with
 the necessary functioning of the Border Patrol as reasonably perceived
 by Respondent's officials.  Further since the changes were, as discussed
 above, covered by Section 7106(b)(1) of the Statute, Respondent was not
 obligated to negotiate with the Council concerning the substance of the
 changes.  Therefore Respondent's failure to bargain concerning the
 substance of the shift and schedule changes did not violate Sections
 7116(a)(1) and (5) of the Statute.
 
    Respondent defended its failure to negotiate concerning the substance
 of the scheduling changes on the grounds that the Council waived its
 right to negotiate concerning the schedule change by Article 28 of the
 collective bargaining agreement and that Section 7116(d) barred
 processing the complaint because a grievance was filed that allegedly
 covered the same issues.  Because of the foregoing conclusions, I need
 not reach any conclusions with respect to these defenses.  /15/
 
    Even though, as concluded above, Border Patrol was privileged, under
 Section 7106(b)(1) of the Statute, to refuse to bargain about the
 institution of the schedule changes, it nevertheless was obligated,
 pursuant to Section 7106(b)(2) and (3) of the Statute, to bargain over
 the impact and implementation of such changes.  U.S. Customs Service,
 Region V, New Orleans, Louisiana, supra.
 
    In the subject case, with respect to the May 29 changes, the Council
 raised the issue of these changes as part of the grievance and not only
 would that grievance reasonably have included the impact and
 implementation of the change, but at the April 29 meeting the Council
 specifically raised the adverse impact of the proposed changes.
 Accordingly it is concluded that, because the May 29 changes and their
 impact and implementation were issues raised in the grievance, Section
 7116(d) of the Statute bars the findings of any unfair labor practice
 with respect to the issues raised in the grievance.
 
    The General Counsel of the FLRA alleges, additionally, that Border
 Patrol failed and refused to bargain about the impact and implementation
 of the September 4 schedule changes.  Respondent routed a notification
 of these changes to AFGE Local 2455 President Lopez.  The routing slip
 was dated August 26, 1983 and Lopez' testimony as to when he actually
 received it is unclear;  he apparently received it on August 27 or
 August 28, 1983.  /16/ Thus the notice was given and received some seven
 days before the anticipated changes.  There is no showing that this
 notice was not given sufficiently in advance of the September 4 schedule
 change so as to permit the union to request to bargain and to bargain
 about the impact and implementation of the changes.  See Department of
 the Interior, U.S. Geological Survey, Conservation Division, Gulf of
 Mexico Region, Metairie, Louisiana, 9 FLRA 543 (1982).  The Council
 after the timely notification was given did not request to bargain about
 the September 4 changes /17/ and accordingly I find Respondent did not
 refuse to bargain about the impact and implementation of the September
 4, 1983 changes.  /18/
 
    In light of all of the foregoing I conclude that Respondent did not
 refuse to bargain with the Council concerning the May 29 and September
 4, 1983 schedule changes or about the impact and implementation of the
 changes and therefore did not violate Sections 7116(a)(1) and (5) of the
 Statute.  Accordingly, I recommend that the FLRA issue the following:
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 6-CA-30309 be,
 and it hereby is, dismissed.
 
                                       /s/ SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  February 20, 1985
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) Section 7106(b)(1) of the Statute provides:
 
                     Section 7106.  Management rights
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating --
 
          (1) at the election of the agency, on the numbers, types, and
       grades of employees or positions assigned to any organizational
       subdivision, work project, or tour of duty, or on the technology,
       methods, and means of performing work(.)
 
    (2) Section 7116(d) of the Statute provides, in relevant part:
 
          (I)ssues which can be raised under a grievance procedure may,
       in the discretion of the aggrieved party, be raised under the
       grievance procedure or as an unfair labor practice under this
       section, but not under both procedures.
 
    (3) Compare Department of the Air Force, Headquarters, Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA No. 17
 (1985) and Department of Justice, Bureau of Prisons, Federal
 Correctional Institution, Butner, North Carolina, 18 FLRA NO. 100
 (1985).
 
    (4) American Federation of Government Employees will hereinafter be
 referred to as AFGE, and the National Border Patrol Council will
 hereinafter be referred to as the Council.
 
    (5) The General Counsel of the FLRA's unopposed Motion to Correct the
 Official Transcript is hereby granted.
 
    (6) At that time, the four established shifts were as follows:  8:00
 a.m.-4:00 p.m., 4:00 p.m.-12:00 a.m., 12:00 a.m.-8:00 a.m., and a
 variable shift from 6:00 p.m.-2:00 p.m.
 
    (7) Article 36 of the collective bargaining agreement provides that
 the union will be provided 30 calendar days to present its views on
 proposed changes.  In a memorandum of understanding between the Council
 and INS, dated June 10, 1977, the parties agreed that the local union
 would be allowed 15 days to submit proposals on changes made at the
 district and sector levels.
 
    (8) Lopez' undenied testimony on this point was that he concurred
 with Chief Selzer and considered the grievance dropped.  Respondent did
 not call Chief Selzer as a witness at the hearing.  Accordingly, Lopez'
 testimony as to this conversation is fully credited.
 
    (9) "Signcutting" involves searching outlying areas for signs or
 trails of illegal aliens and tracking them down.
 
    (10) In this regard, the record established that the Respondent has,
 for years, encouraged employees to obtain college degrees and to
 otherwise further their education.  Prior to the implementation of the
 eight-shift system, employees had no problems obtaining particular days
 off to attend college classes.  However, after the change, there might
 foreseeably be an increased difficulty in obtaining requested days off;
 the burden was placed on these employees to find other agents who were
 willing to trade shifts and this might be more difficult under the new
 schedule and thus might interfere with the employees' ability to obtain
 days off when classes were scheduled.
 
    (11) The Complaint and Notice of Hearing alleged the violations of
 Sections 7116(a)(1) and (5) of the Statute with respect to the failure
 to bargain about the implementation and impact of the changes.  The
 Complaint was amended at the hearing to allege that the Statute was also
 violated by Respondent's alleged refusal to bargain concerning the
 substance of the changes.
 
    (12) It is concluded that the shift changes made on May 29 and
 September 4, 1983 were so fundamental and basic that they more closely
 resemble the creation of a new shift than merely the changing the time
 an existing shift starts and ends.  See U.S. Customs Service, Region V,
 New Orleans, Louisiana, supra.  For example on May 29 when eight shifts
 were substituted for four shifts it is difficult, if not impossible, to
 determine which of the eight shifts were new and which were the prior
 four with merely changed starting and finishing hours.  It is noted,
 that such a distinction was recognized by the FLRA in U.S. Customs
 Service, Region V, New Orleans, Louisiana, supra.
 
    (13) See United States Department of Justice, United States
 Immigration and Naturalization Service, supra at 286.
 
    (14) See also Immigration and Naturalization Service, 16 FLRA 80
 (1984), Immigration Naturalization Service, 16 FLRA 88 (1984).
 
    (15) In the event the FLRA concludes my prior disposition of the
 issue of Respondent's alleged failure to bargain concerning the
 substance of the schedule changes, in an error, I would reject
 Respondent's contention that Article 28 of the collective bargaining
 agreement constituted a waiver by the Council of its rights to negotiate
 concerning the schedule change, but I would agree that Section 7116(d)
 of the Statute bars the finding of any violation with respect to the May
 29, 1983 changes, but not with respect to the September 4, 1983 changes.
  The conclusions with respect to the contract waiver is based on the
 FLRA's decisions holding that the waiver of a statutory right must be "a
 clear and unmistakable waiver of bargaining rights." Cf. Immigration and
 Naturalization Service, 10 FLRA 202 (1982);  Internal Revenue Service,
 10 FLRA 182 (1982).  Article 28 of the collective bargaining agreement,
 although recognizing that the Border Patrol will have to, on occasion,
 vary and change schedules, does not constitute a clear and unmistakable
 waiver of any rights the Council might have to bargain about such
 schedule changes.
 
    Section 7116(d) of the Statute provides, in part, that "issues which
 can be raised under a grievance procedure may, in the discretion of the
 aggrieved party, be raised under the grievance procedure or as an unfair
 labor practice . . . , but not under both procedures." The grievance
 filed by the Local President Lopez on April 24, 1983 specifically raised
 the issue of the Laredo Station Border Patrol Agents being "divided into
 eight (8) units or squads headed by one supervisor".  There was no
 explanation as to what these eight squads referred to except the eight
 new shifts.  Although the record does not establish that Respondent
 advised AFGE Local 1455 about the eight new squads, the union could
 reasonably have learned about them in the same manner it learned about
 the change in shifts.  Thus it would be found, if necessary, that the
 grievance did in fact, deal with the schedule changes effective May 29,
 1983 and therefore Section 7116(d) of the Statute would require that no
 unfair labor practice can be found with respect to substance of the May
 29, 1983 schedule changes.
 
    (16) If Lopez did not receive the notification until after August 27
 or 28 because he had been on leave, it was incumbent upon the union to
 designate someone to receive such notification and not just to await
 Lopez return.
 
    (17) Although the memorandum between the Council and INS provided for
 15 days notice for changes at the local level, that was a contract
 provision and any breach of it should have been raised under the
 grievance procedure.  The seven days notice that was given was
 sufficient notice under the Statute.
 
    (18) In light of the foregoing c