51:1274(103)CA - - INS, Washington, DC and AFGE, National Border Patrol Council - - 1996 FLRAdec CA - - v51 p1274



[ v51 p1274 ]
51:1274(103)CA
The decision of the Authority follows:


51 FLRA No. 103

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

WASHINGTON, D.C.

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL, AFL-CIO

(Charging Party/Union)

WA-CA-30789

DECISION AND ORDER

May 10, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

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

The Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it failed to give the Charging Party notice and an opportunity to bargain the impact and implementation of a memorandum that it sent to its supervisors instructing them to closely review holiday and Sunday staffing patterns to ensure that an absolute minimum on-duty force is used during those premium pay work hours.

For the following reasons, we dismiss the complaint.

II. Background and Judge's Decision

The facts are fully set forth in the Judge's decision and are only briefly summarized here. On January 19, 1993, the Chief of the U.S. Border Patrol issued a memorandum to all Chief Patrol Agents which provided in pertinent part:

Recently . . . you were briefed on the Patrol's projected budget shortfall for 1993 . . . . Therefore, the following . . . will be implemented immediately program-wide:

. . . .

All Sectors will closely review their holiday and Sunday staffing patterns to ensure that an absolute minimum on-duty force is used during premium pay work hours. Shifts which carry from one day to another are to be reviewed for critical needed [sic] and elimination where possible. All Sectors are to report the estimated amount of savings projected to the end of the fiscal year to their respective Regional Border Patrol offices by March 31.

General Counsel's Exhibit 2. The Respondent did not give the Charging Party notice of the memorandum.

The General Counsel issued a complaint alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by issuing the memorandum. According to the General Counsel, the memorandum implemented a policy to reduce holiday and Sunday work hours without providing the Charging Party with prior notice and an opportunity to negotiate the impact and implementation of the change.

The Judge recommended dismissing the complaint. Among other things, he found that instructing supervisors to keep holiday and Sunday work hours to the minimum possible consistent with its mission "is a management right reserved exclusively by [section 7106(a)] of the Statute to Respondent and recognized by Article 28, Section A of the Agreement . . . ."(1) Judge's Decision at 6. He concluded that because the Respondent had no obligation to bargain on its decision concerning the number of employees it required to meet its needs on Sundays and holidays, the Respondent did not violate the Statute by failing to give the Charging Party notice of the memorandum and to bargain over its decision.

III. Positions of the Parties

A. Charging Party

The Charging Party acknowledges that Article 28, Section A recognizes the Respondent's right to vary tours of duty in order to carry out its mission. However, it contends that the changes in employees' conditions of employment resulting from implementation of the policy set forth in the memorandum are not covered by Article 28. In this connection, the Charging Party, relying in part on the dissent in Navy Resale Activity, Naval Station, Charleston, South Carolina, 49 FLRA 994, 1003 (1994) (Navy Resale), asserts that nothing in the record establishes that at the time Article 28 was negotiated, the parties intended or should have contemplated that it would cover the particular changes here. Additionally, the Charging Party relies on United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 47 FLRA 225, 233 (1993) (INS, Del Rio), where the Authority rejected the Respondent's argument that by negotiating Article 28 of the agreement, the Respondent satisfied its obligation to negotiate regarding the impact and implementation of the abolishment of a specialized unit. The Charging Party contends that Article 28 merely covers routine scheduling changes in tours of duty. Therefore, the Charging Party claims that the Respondent must negotiate the impact and implementation of the policy to reduce holiday and Sunday work hours contained in the memorandum.

B. Respondent

The Respondent argues that it has no duty to negotiate because the policy to reduce holiday and Sunday work hours set forth in the memorandum is covered by Article 28 of the parties' agreement. In support, the Respondent asserts that the memorandum concerned changes in employees' tours of duty, in part, and it is clear that, at the time Article 28 was negotiated, the parties negotiated impact and implementation provisions pertaining to this disputed subject. The Respondent relies on the D.C. Circuit's decision in Department of the Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48, 53 (D.C. Cir. 1992), as well as the Authority's decision in Navy Resale. The Respondent maintains that the issuance of the memorandum was "clearly at least 'covered by,' if not expressly contemplated and authorized by, the contract." Respondent's Opposition at 12.

IV. Analysis and Conclusions

In determining whether a respondent has an obligation to provide notice and bargain over the impact and implementation of a change in conditions of employment, the Authority ordinarily considers first whether the Respondent changed conditions of employment, and if so, whether those changes had more than a de minimis impact on employees' conditions of employment. See U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and Michigan Airway Facilities Sector, Belleville, Michigan, 44 FLRA 482, 492-93 (1992). However, we need not pursue this inquiry here because the Respondent was under no obligation to bargain over the impact and implementation of any changes in conditions of employment as they are covered by Article 28 of the parties' agreement. See id. at 493. Accordingly, we dismiss the complaint.

In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA), the Authority established a three-pronged approach for determining whether it should sustain a respondent's assertion that it has no duty to bargain based on the terms of the existing negotiated agreement. First, the Authority looks to the express language of the provision of the agreement to determine whether it reasonably encompasses the subject in dispute, which, in this case, is the reduction of holiday and Sunday work hours. Id. at 1018. In this connection, an exact congruence of the language is not required. Id. Thus, the requisite similarity will be found if a "reasonable reader would conclude that the provision settles the [subject] in dispute." Id. If the provision does not expressly encompass the subject in dispute, the second prong will be applied. In this regard, the Authority determines whether the subject in dispute is "'inseparably bound up with and . . . thus [is] plainly an aspect of . . . a subject expressly covered by the contract.'" Id. (citing C & S Industries, 158 NLRB 454, 459 (1966). In other words, the Authority determines if the subject in dispute is "so commonly considered to be an aspect of" a subject set forth in a provision of a contract that negotiations over that subject are presumed foreclosed. Id. Third, in cases where it is difficult to determine whether the subject matter sought to be bargained is an aspect of matters already negotiated, the Authority will examine all of the record evidence, including the parties' bargaining history, and decide whether the parties reasonably should have contemplated that the agreement would foreclose further bargaining in such instances. SSA, 47 FLRA at 1019.

Applying the analytical approach in SSA, we conclude that the Respondent had no obligation to provide notice to, or engage in impact and implementation bargaining with, the Charging Party before implementing the directive contained in January 19, 1993 memorandum. In this connection, we find that the disputed subject of the memorandum--reducing holiday and Sunday Border Patrol work hours--is inseparably bound up with the provisions of Article 28 of the parties' agreement, which concern Border Patrol employees' tours of duty. We note that the parties' agreement does not define "tours of duty." However, our examination of Article 28 persuades us that the parties intended the phrase to encompass the days and hours of employees' scheduled workweeks. For example, section A, which permits the Respondent to vary tours of duty, also provides that changes in employees' "scheduled hours of duty" should be kept to a minimum; this section appears to view "tour of duty" and "scheduled hours of duty" synonymously. In addition, section C provides for a minimum of 8 hours between changes in shifts; section E addresses consecutive days off; section F defines for certain purposes "the administrative workweek"; section G addresses the scheduling of breaks during workdays; and sections H and I establish procedures for notice of and trading of shifts. All of these sections evidence the parties' attention to daily and weekly work schedules. Further, the conclusion that Article 28 encompasses the days and hours of an employee's work schedule is consistent with the meaning of the phrase "tour of duty" set forth in Government-wide regulations. See 5 C.F.R. § 610.102(h) ("Tour of duty means the hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee's regularly scheduled administrative workweek.").

Changes in holiday and Sunday work hours are plainly subsumed in, and therefore are an aspect of, the daily and weekly work schedule provisions in Article 28. Accordingly, under the second prong of the SSA test, the subject of the Respondent's memorandum is covered by Article 28.(2) Therefore, because the parties have already bargained with respect to impact and implementation matters, the Respondent did not incur any additional bargaining obligation when it issued the January 19, 1993 memorandum. See, e.g., Sacramento Air Logistics Center, McClellan Air Force Base, California, 47 FLRA 1161, 1165 (1993); U.S. Department of the Navy, Marine Corps Logistics Base, Barstow, California, 48 FLRA 102, 106-07 (1993).

We note the Respondent's reliance on the Authority's decision in Navy Resale and the Charging Party's reliance on the dissent in Navy Resale. However, because Navy Resale is distinguishable from the instant case for two reasons, both parties' reliance is misplaced. First, the Authority's decision in Navy Resale was based on an application of the third prong of the SSA test because the Authority was not able to determine whether the subject sought to be bargained was an aspect of a subject already negotiated without looking to record evidence of the parties' bargaining history. Navy Resale, 49 FLRA at 1002, 1015-18. By contrast, we do not examine the parties' bargaining history here because, under the second prong, we have found that the disputed subject--the reduction of Sunday and holiday work hours--is an aspect of a subject already negotiated in Article 28. Second, the central issue in Navy Resale concerned a reduction in the total number of weekly work hours, and the majority and dissent disagreed over whether the reduction in work hours concerned employees' tours of duty. This case, on the other hand, concerns the scheduling of weekly work hours, a subject that plainly is an aspect of employees' tours of duty.

V. Order

The complaint is dismissed.

Appendix

Article 28 states:

Tours of Duty (Border Patrol Council):

A. The parties to 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.

Respondent's Exhibit 4.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

U.S. DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE, WASHINGTON, D.C.

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER PATROL COUNCIL, AFL-CIO

Charging Party

Case No. WA-CA-30789

Amy V. Dunning, Esquire
Mr. Steven R. Freedman
For the Respondent

Mr. Terrence J. Bonner
Deborah S. Wagner, Esquire
By Brief
For the Charging Party

Christopher M. Feldenzer, Esquire
Susan Kane, Esquire
For the General Counsel

Before: WILLIAM B. DEVANEY
Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq.(***), and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether Respondent's instruction to supervisors, to, ". . . closely review their holiday and Sunday staffing patterns to ensure that an absolute minimum on-duty force is used during premium pay work hours. . . ." (G.C. Exh. 2), created a bargaining obligation. For reasons set forth hereinafter, I find that it did not and will dismiss the complaint.

This case was initiated by a charge filed on July 7, 1993 (G.C. Exh. 1(a)) and the Complaint issued on December 9, 1993 (G.C. Exh. 1(d)), for a hearing to be held on a date to be determined. On May 20, 1984, a Notice issued setting the hearing in this and other cases for June 29, 1994 (G.C. Exh. 1(d)); by Order dated June 14, 1994 (G.C. Exh. 1(e)) the hearing was rescheduled for July 21, 1994, and by Order dated July 7, 1994 (G.C. Exh. 1(f)) the hearings in this and other cases were scheduled to begin on August 10, 1994, pursuant to which a hearing was duly held on August 11, 1994, in Washington, D.C., before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence hearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, September 12, 1994, was set as the date for mailing post-hearing briefs, which time was subsequently extended, on timely motion of the Charging Party, to which the other parties did not object, for good cause shown to November 14, 1994. Charging Party, Respondent and General Counsel each timely mailed, or filed, an excellent brief, received on, or before, November 18, 1994, which have been carefully considered. Upon the basis of the entire record, I make following findings and conclusions:

Findings

1. The National Border Patrol Council (hereinafter, "Union") is the certified exclusive representative of a nationwide unit of approximately 4,500 employees in the continental United States and Puerto Rico who are assigned to the U.S. Department of Justice, Immigration and Naturalization Service's (hereinafter, "INS") Border Patrol Sectors.
(Tr. 14).

2. On September 30, 1976, the Union and INS entered into an Agreement (Res. Exh. 4), which is still in effect (Tr. 20, 21, 32). Article 27 is entitled "Overtime - (other than uncontrollable overtime)" and Section A provides,

"A. Overtime assignments will be distributed and rotated equitably among eligible employees. Supervisors shall not assign overtime work to employees as a reward or as a penalty, but solely in accordance with the Agency's needs. Complaints or disagreements on distribution of overtime shall be processed in accordance with the negotiated grievances procedure." (Res. Exh. 4, Article 27, Section A).

Article 28 is entitled, "Tours of Duty (Border Patrol Council)" and provides, in part, as follows:

"A. The parties . . . 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 . . . covering at least a two week period.

. . .

"F. The administrative workweek shall be seven consecutive days, Sunday through Saturday.

. . . ." (Res. Exh. 4, Article 28, Sections A, B, F).

3. On January 19, 1993, Mr. Michael S. Williams, the Chief, U.S. Border Patrol, issued a memorandum to all Chief Patrol Agents which, in pertinent part, provided as follows:

"Recently . . . you were briefed on the Patrol's projected budget shortfall for 1993 . . . . Therefore, the following . . . will be implemented immediately program-wide:

. . .

"All Sectors will closely review their holiday and Sunday staffing patterns to ensure that an absolute minimum on-duty force is used during premium pay work hours. Shifts which carry from one day to another are to be reviewed for critical needed and elimination where possible. All Sectors are to report the estimated amount of savings projected to the end of the fiscal year to their respective Regional Border Patrol offices by March 31.

. . .

". . . HQBOR will keep you updated and informed on budget changes as we work through this time of fiscal austerity." (G.C. Exh. 2).

4. On January 28, 1993, Mr. Marshall M. Metzgar, Chief Patrol Agent, Southern Region, in a memorandum to All Patrol Agents in charge, followed up Mr. Williams' memorandum and instructed supervisors as follows:

"Due to the potential for a budget crisis in the Border Patrol Program this fiscal year, Headquarters has instructed that a number of cost saving measures be taken.

"One measure requires that scheduling of premium pay (ie, Sunday, holiday) work hours be reduced and held to the absolute minimum. Therefore, I am directing that all Patrol Agents in Charge and Supervisors make immediate adjustments to schedules to comply with Headquarter's directives.

"Supervisors will assign personnel to provide coverage during a six (6) day administrative work week starting Monday and ending Saturday. No scheduling of work hours on Sunday or a holiday may be undertaken without approval of the respective Assistant Chief for each location. . . ."

(G.C. Exh. 3).

Mr. John Claydon, Senior Border Patrol Agent, Jacksonville, Florida, and for about seven years National Vice President of the Union for the Southeastern United States (Tr. 22, 23), testified that he knew of no similar document in any of the other twenty sectors, which had taken action to eliminate scheduled Sunday or holiday work without approval (Tr. 26), although he ". . . heard complaints of the same situation happening. . . ." (Tr. 26).

5. Mr. Claydon further testified that before January, 1993, the typical staffing at Orlando on Sunday and holidays had been six to seven agents and that after January 1993, the typical level became two agents (Tr. 25-26). Mr. Terrence J. Bonner, President of the Union (Tr. 13), testified that by statute, employees who work on Sundays are entitled to a 25 percent premium and that employees who work on a holiday receive double time (Tr. 14). In addition, there is a ten percent night shift differential for hours between 6:00 p.m. and 6:00 a.m. (Tr. 15).

6. Mr. J. William Carter, Acting Deputy Assistant Commissioner, Border Patrol, who has been with the Border Patrol over 22 years (Tr. 38), testified that to his certain knowledge, the Service had since 1978, when he first became a supervisor, periodically reminded supervisors to closely monitor and review Sunday and holiday staffing; that this was done at least annually; and that he knew of no bargaining concerning this matter (Tr. 39-41).

7. Mr. Thomas P. Burroughs, Information Systems Specialist (Tr. 29), produced Respondent Exhibit 1, which shows the amount of Sunday pay paid, by Region and by Sector, in fiscal years 1992 and 1993; Respondent Exhibit 2, which shows the amount of holiday pay paid in fiscal years 1992 and 1993; and Respondent Exhibit 3, which shows a comparison of Border Patrol 1992 and 1993 fiscal year Sunday and holiday overtime payments (Tr. 30-32). Mr. Burroughs testified that, as shown by Respondent Exhibit 3, "In '93, in real dollars . . . there were more holiday and Sunday pay paid out. . . ." (Tr. 32), i.e., that Respondent spent more money for Sunday and holiday in 1993 than it did in 1992 (Tr. 32). Thus, Respondent Exhibit 3 shows total Sunday pay in 1992 of $3,383,285 [adjusted to reflect 3.7% cost of living increase received in January 1993 - 3,508,467] and 3,810,957 in 1993; holiday pay: 3,170,906 in 1992 [adj. 3,288,230] and 3,439,001 in 1993. However, both the Sunday and holiday pay by year varied greatly from region to region and from sector to sector. For example, in the Southern Region both the Sunday and holiday pay increased in 1993 over 1992; but in the Miami sector, Sunday pay decreased slightly, 25,132 [adj. 26,062] in 1992 to 24,280 in 1993; and holiday pay also decreased in the Miami sector, 46,859 [adj. 48,593] in 1992 to 38,259 in 1993. (Res. Exh. 3).

8. It is conceded that Respondent gave the Union no notice of either its January 19 or January 28, 1993 memoranda to supervisors.

Conclusions

Respondent changed no established shift, established no new shift, did not fail to post schedules in advance, as required by the Agreement, and did not fail to distribute overtime assignments equitably as required by the agreement. Respondent did instruct its supervisors to keep holiday and Sunday staffing to the absolute minimum possible consistent with accomplishment of its mission; but this is a management right reserved exclusively by § 6(a) of the Statute to Respondent and recognized by Article 28, Section A of the Agreement as an obligation of management to meet its needs. Respondent's decision on the number of employees to schedule to work on Sundays and holidays gave rise to no bargaining obligation. Because Respondent had no obligation to bargain on its decision concerning the number of employees it required to meet its needs on Sundays and holidays, neither its failure to give the Union notice nor its failure to bargain on its decision concerning the number of employees required was in violation of the Statute. Accordingly, it is recommended that the Authority adopt the following:

ORDER

The Complaint in Case No. WA-CA-30789 be, and the same is hereby, dismissed.

_____________________________
WILLIAM B. DEVANEY
Administrative Law Judge

Dated: March 30, 1995
Washington, DC




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


Authority's Footnotes Follow:

1. Article 28 is set forth in the Appendix to this decision.

2. The Authority has addressed Article 28 of the parties' agreement in two previous decisions: INS, Del Rio, 47 FLRA at 233 and U.S. Department of Justice, Immigration and Naturalization Service, U.S. Border Patrol, El Paso, Texas, 48 FLRA 61, 63-64 (1993). In INS, Del Rio, the Authority rejected the Respondent's argument that abolishment of a work unit was covered by Article 28. The Authority found that abolishment of a work unit concerned a change in the organizational structure of the Respondent's operation, and not a change in a tour of duty. Unlike the changes in INS, Del Rio, the reduction in holiday and Sunday work hours present here are, as discussed above, plainly an aspect of tours of duty. Thus, we reject the Charging Party's reliance on INS, Del Rio, as support for its position in this case. In INS, El Paso, the Authority remanded the case to a judge because it could not determine whether the abolishment of one shift of a work unit was covered by Article 28. Remand is not required in this case because we are able to make a determination that Article 28 covers the subject of a reduction in Sunday and holiday work hours.


ALJ's Footnote Follow:

***/ For convenience of reference, sections of the Statute hereinafter are, also