48:0061(7)CA - - Justice, INS, U.S. Border Patrol, El Paso, TX and AFGE, National Border Patrol Council - - 1993 FLRAdec CA - - v48 p61

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ALJ's Decision

48 FLRA No. 7

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel did not file an opposition to the Respondent's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by abolishing an evening shift of a particular work unit without affording the Union an opportunity to negotiate over the procedures to be observed in implementing the change and appropriate arrangements for employees adversely affected by the change. The Judge found that the Respondent violated the Statute as alleged in the complaint. For the following reasons, we have decided to remand this case to the Judge.

Before the Judge, the Respondent argued, among other things, that it was privileged under Article 28 of the parties' agreement to temporarily terminate the SIBAD (Stop Inbound Aliens and Drug) evening shift and to reassign the employees on that shift to different work locations and work hours.^(*) The Judge rejected the Respondent's argument on the basis that Article 28 did not constitute a "clear and unmistakable waiver" of the Union's right to negotiate over the impact and implementation of changes in tours of duty and shift assignments. Judge's Decision at 7. The Judge concluded that the Respondent violated the Statute as all