United States, Border Patrol Livermore Sector, Dublin, California (Respondent) and American Federation of Government Employees, National Border Patrol Council, Local 2730, AFL-CIO (Charging Party/Union)

[ v58 p231 ]

58 FLRA No. 56

UNITED STATES
BORDER PATROL LIVERMORE SECTOR,
DUBLIN, CALIFORNIA
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL
LOCAL 2730, AFL-CIO
(Charging Party/Union)

SF-CA-00599

_____

DECISION AND ORDER

December 18, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

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 filed by the General Counsel. No opposition was filed to the General Counsel's exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain over the impact and implementation of its decision to temporarily reassign two employees to different offices. The Judge concluded that the Respondent did not violate the Statute and recommended that the Authority dismiss the complaint.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended order to the extent consistent herewith. We find that the Respondent did not violate § 7116(a)(1) and (5) of the Statute. Accordingly, we dismiss the complaint.

II.     Background and Judge's Decision

      The facts are fully set forth in the Judge's decision and only briefly summarized here.

      Pursuant to Article 3, Section A of the parties' National Agreement (which was expired at all times relevant hereto), the Respondent notified AFGE Local 2730 that it intended to temporarily assign two employees from their current Border Patrol office to other Immigration and Naturalization Service (INS) sub-offices within the employees' commuting area. [n2]  Local 2730 requested to bargain, and the parties began (but did not complete) negotiations over the matter. The Respondent subsequently refused to bargain further over the assignments, asserting that they constituted details within the meaning of Article 26 of the parties' National Agreement, and that it was entitled to effect the details in accordance with the terms of the agreement. [n3] 

      The Judge found that the Respondent did not violate § 7116(a)(1) and (5) of the Statute by failing to bargain over the impact and implementation of the assignments because the assignments were details, within the meaning of the parties' National Agreement. Finding that the parties' National Agreement did not define the term "detail," the Judge applied the Office of Personnel Management's (OPM's) definition of a detail as a "temporary assignment to a different position for a specified period when the employee is expected to return to his or her regular duties at the end of the assignment." Decision at 5 (quoting OPM Guide to Processing Personnel Actions 14-3 (1998)). The Judge found that the assignments were temporary and that, while they were not limited to a "date certain," the initial notification concerning the assignments indicated that they would end upon the selection of a candidate for a specific managerial position. Id. (citing G.C. Exhs. 2(a) and (b)).

      The Judge rejected the General Counsel's argument that the assignments were not details. In so doing, the Judge determined that the only support for that argument was the testimony of the Acting Chief Patrol Agent (Acting Chief) that the "involuntary assignments" were not details because, under Article 26, Section [ v58 p232 ] O of the parties' National Agreement, details away from an employee's duty station in excess of 35 days must be "voluntary." In rejecting that testimony, the Judge found no evidence that the Acting Chief had specialized knowledge of the meaning of the relevant contract terms. Moreover, to the Judge it was not clear that the 35-day provision applied, as the disputed assignments were within the employees' commuting area.

      Acknowledging dictum in Authority precedent relevant to whether the Authority's "covered by" doctrine was applicable to expired agreements, the Judge concluded that nothing would preclude the Respondent from relying on the terms of the expired agreement (as construed pursuant to a "covered by" analysis) in refusing to bargain in this case. Moreover, pointing to the fact that the agreement had expired, the Judge noted Authority precedent that limits the bargaining obligation in such instances to the level of recognition. The Judge then found that the bargaining demand here came not from the level of recognition but from the local Union. Id. at 8. Accordingly, the Judge found that the Respondent's refusal to engage in impact and implementation bargaining over the matters at issue did not violate the Statute, and recommended that the complaint be dismissed.

III.     General Counsel's Exceptions [n4] 

      The General Counsel asserts that the Judge's finding that the assignments were details within the meaning of the parties' agreement is not supported by the record. While the General Counsel asserts that the OPM definition of detail "may be relevant" in view of the absence of a definition in the parties' agreement, the General Counsel claims that the Judge's application of the OPM definition ignored record evidence that the disputed assignments were not details. Exceptions at 10. The General Counsel maintains, in this regard, that the Respondent had the burden of establishing that the assignments were details because the Respondent is relying on the agreement as an affirmative defense.

      The General Counsel also asserts that the Judge erred in applying the Authority's "traditional covered by doctrine" to the parties' expired agreement. Id. at 12. In this regard, the General Counsel asserts that where the plain language of an agreement does not clearly cover an agency's actions, the agency must demonstrate that it acted "consistent with the way the contract provision was applied during the life of the contract." Id.

      No exceptions were taken to any other part of the Judge's decision.

IV.     Analysis and Conclusions

      The General Counsel excepts to the Judge's conclusions that: (1) the temporary assignments in this case constituted "details" within the meaning of the parties' expired collective bargaining agreement; and (2) the terms of the expired agreement permitted the Respondent to detail the employees without bargaining with the Union. For the following reasons, we believe that the Judge's conclusions are correct.

      As to the first point, the General Counsel contends that the Judge erred in finding that the assignments were "details" within the meaning of the agreement. In reviewing a judge's interpretation of the meaning of a collective bargaining agreement, the Authority determines "whether the judge's interpretation is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the Federal courts." Internal Revenue Service, Washington, D.C., 47 FLRA 1091, 1111 (1993).

      In our view, the Judge's determination in this case is so supported. In the absence of any specific definition of the term "details" in the parties' agreement or any indication in the parties' bargaining history as to what they meant by the term, it was certainly reasonable for the Judge to apply the OPM definition of the term, which is commonly used in the Federal sector as a term of art. Moreover, while the parties' past practice may be relevant in defining terms used in their collective bargaining agreement, in this case there is no assertion that there is any relevant past practice. Thus, the General Counsel has not established that the Judge erred in finding that the assignments were details within the meaning of the agreement.

      As to the second point, we agree with the Judge's determination that the terms of the expired agreement permitted the Respondent to detail the employees without bargaining with the Union. As an initial matter, the Judge concluded that the provisions of the contract concerning details concern mandatory subjects of bargaining, and that, "absent agreement to the contrary, contract provisions resulting from negotiations over mandatory subjects of bargaining continue in effect after the expiration of a contract." Judge's Decision at 7. After stating that the Authority "has never decided the question of whether an agency may, without further bargaining, implement changes in conditions of employment in a manner consistent with the provisions of an expired agreement[,]" the Judge reviewed related Authority precedent and concluded as follows: [ v58 p233 ]

I find nothing unique in the circumstances of this case to create an exception to the rule that parties to an expired agreement continue to be bound by the provisions of that agreement until otherwise agreed or the provisions are modified in a manner consistent with the Statute. Such a finding is consistent with the purposes underlying the "covered by" doctrine as well. As the Authority noted in adopting the covered by doctrine, that doctrine furthers the statutory purpose of providing the parties to an agreement with stability and repose with respect to matters reduced to writing in the agreement. SSA, 47 FLRA at 1017.

Judge's Decision at 8.

      The General Counsel contends that "if an agency is to avoid bargaining based on the terms of an expired contract, it must demonstrate that its current action is consistent with either the plain language of a contract provision or consistent with the way the contract provision was applied during the life of the contract." Exceptions at 12. According to the General Counsel, "[i]t is not enough to contend that the contract could have been applied in a particular matter [sic]. An agency must show that the contract provision was in fact applied in a particular manner during the life of the contract and that the agency's current action is consistent with that application." Id. (emphasis in original). However, the General Counsel cites no cases or other support for this argument.

      We believe the Judge correctly applied to the facts of this case the general principle that parties to an expired agreement continue to be bound by the provisions of that agreement until otherwise agreed or the provisions are modified in a manner consistent with the Statute. This principle affords stability to the parties' relationship and at the same time allows parties the flexibility to change those provisions if they so desire.

      Specifically, upon the expiration of a collective bargaining agreement, it is well-established that either party may seek to renegotiate its terms, and the parties have an obligation to engage in such negotiations upon request. United States Patent and Trademark Office, 57 FLRA 185, 191-92 (2001). If neither party seeks to renegotiate, then the mandatory terms of the agreement continue in effect, and the parties may rely on and enforce such provisions. United States Dep't of the Air Force, HQ Air Force Materiel Command, 49 FLRA 1111, 1121 (1994); Dep't of Health and Human Servs., Soc. Sec. Admin., 44 FLRA 870, 881 (1992). [n5] 

      In this case, there is no evidence that the parties at the level of exclusive recognition or their designees sought to renegotiate the terms of the expired agreement. The only request for negotiations came from the Union, which sought to negotiate at the local level over the details of the two employees in this case. [n6]  In sum, there is no evidence that a proper request was made to initiate term bargaining on the mandatory subject of details, and the terms and conditions of employment affecting the mandatory subject of details established by the contract provisions continued after the expiration of the contract. In these circumstances, the Respondent could rely on a contractual "covered by" defense to the same extent that it could during the term of the contract. [n7] 

      Accordingly, the Respondent was entitled to rely on terms and conditions established by the expired agreement, and its conduct in detailing the employees without bargaining with the Union was not an unfair labor practice. [n8] 

V.     Order

      The complaint is dismissed.


File 1: Authority's Decision in 58 FLRA No. 56
File 2: Chairman Cabaniss' Opinion
File 3: Member Pope's Opinion
File 4: ALJ's Decision


Footnote # 1 for 58 FLRA No. 56 - Authority's Decision

   Chairman Cabaniss' concurring opinion, and Member Pope's dissenting opinion, are set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 56 - Authority's Decision

   Article 3, Section A establishes procedures for impact bargaining over changes in personnel policies, practices and/or working conditions not covered by the National Agreement.


Footnote # 3 for 58 FLRA No. 56 - Authority's Decision

   As relevant here, Article 26, Section O of the parties' National Agreement provides that "[e]xcept for training courses, details away from the normal duty station will not exceed 35 calendar days, unless the employee volunteers for a longer period." Agency Exh. 1 at 40.


Footnote # 4 for 58 FLRA No. 56 - Authority's Decision

   / The General Counsel asserts that the Judge failed to rule on its Motion to Strike portions of the Respondent's brief to the Judge, and the General Counsel renews its Motion before the Authority. Because we, like the Judge, do not rely on the disputed portions of the brief to reach our decision, we deny the General Counsel's Motion.


Footnote # 5 for 58 FLRA No. 56 - Authority's Decision

   Permissive terms of an expired contract remain in effect as well. However, in contrast to mandatory subjects of bargaining, permissive subjects of bargaining may be unilaterally terminated by either party. FAA, Northwest Mtn. Region, Seattle, Wash., 14 FLRA 644, 648 (1984) ("where the parties reach agreement on a matter which is outside the required scope of bargaining under the Statute . . . either party may elect not to be bound thereby upon the expiration of that agreement.")


Footnote # 6 for 58 FLRA No. 56 - Authority's Decision

   The Union is a local affiliate of AFGE, which is the exclusive representative of a nationwide consolidated unit of employees of the United States Border Patrol. The Union did not seek to renegotiate the national agreement. In this regard, we note the Judge's statement that "the only demand to bargain was at the local level, not at the level of recognition, i.e., the national level." Judge's Decision at 8. This statement appears in a paragraph in which the Judge notes that following the expiration of an agreement, "a union can compel negotiations on any negotiable matter at the appropriate level of recognition." Id. Member Armendariz believes that, although the Judge's statement might be read as suggesting that there was no request to bargain at the level of exclusive recognition about the details of the two employees, in context, the Judge was simply stating that there was no request at the level of exclusive recognition-that is, at the national level-to renegotiate either the detail provisions or any other provisions of the expired agreement.


Footnote # 7 for 58 FLRA No. 56 - Authority's Decision

   The Judge noted that, in dictum, the Authority had suggested that the "covered by" defense does not apply to expired agreements. Judge's Decision at 7 (citing Professional Airways Systems Specialists, 56 FLRA 798, 804 and n.11 (2000)). However, as the Judge also noted, the Authority has never actually decided this question; that is, whe