File 4: ALJ's Decision
[ v58 p236 ]
Office of Administrative Law Judges
U.S. BORDER PATROL, LIVERMORE SECTOR
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL BORDER PATROL
COUNCIL, LOCAL 2730, AFL-CIO
Case No. SF-CA-00599
Gerald K. McMahon
Karen E. Rubio
For the Respondent
Mark D. Marquez
For the Charging Party
Stefanie Arthur, Esquire
Vanessa Lim, Esquire
For the General Counsel, FLRA
Before: WILLIAM B. DEVANEY
Administrativ.e Law Judge
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. [n1] , and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1 et seq., concerns whether, as alleged in the Complaint, Respondent violated § 16(a)(1) and (5) of the Statute.
This case was initiated by a charge filed on June 13, 2000, (General Counsel (G.C.) Exh. 1(a)) which alleged violations of §§ 16(a)(1), (5) and (8) of the Statute. The Complaint and Notice of Hearing issued on September 29, 2000; alleged violations of §§ 16(a)(1) and (5) of the Statute; and set the hearing for December 20,2000, pursuant to which a hearing was duly held on December 20, 2000, in Ventura, California before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which all parties declined. At the conclusion of the hearing, January 26, 2001, was fixed as the date for mailing post-hearing briefs and General Counsel and Respondent each timely submitted a brief, received on, or before, January 29, 2001, which have been carefully considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:
1. The American Federation of Government Employees, AFL-CIO (hereinafter, "AFGE") is the exclusive representative of a nationwide consolidated unit of employees of the U.S. Border Patrol. AFGE, Local 2730 (hereinafter "Union") is an agent of AFGE for the purpose of representing employees of the U.S. Border Patrol, Livermore Sector (hereinafter, "Respondent"). The U.S. Border Patrol is a component of the U.S. Immigration and Naturalization Service (hereinafter, "INS"). The Livermore Sector includes the Oxnard Border Patrol Station and the Bakersfield Border Patrol Station.
2. At all times material herein, Robert Logazino was the Acting Chief Patrol Agent and Thomas G. Madden was the Acting Deputy Chief Patrol Agent for the Respondent (G.C. Exh. 1(b) and 1(d)). Both Mr. Logazino and Mr. Madden were supervisors and acted as agents for the Respondent (id.).
3. AFGE and the U.S. Border Patrol executed a collective bargaining agreement (National Agreement) in 1995. The Agreement expired prior to the events at issue herein and no successor agreement had been negotiated. Article 16H of the National Agreement provided procedures to be used in "details" of employees, and further provided that disputes concerning details are to be resolved through the negotiated grievance procedure. Article 26 entitled "Travel and Per Diem" provides in § O that, except for training courses, "[involuntary] details away from the normal duty station will not exceed 35 calendar days" (Respondent (Res.) Exh. 1).
4. On March 20, 2000, Mr. Logazino informed Mr. Mark Marquez, the Union president, that due to the current staffing levels at current duty stations and the departure of the Patrol Agent in Charge, two bargaining unit employees were being reassigned "until such time as a new Patrol Agent in Charge is selected" (G.C. Exh. 2(a) and 2(b)). One employee, Ms. Angelina Quinones, was being reassigned from the Oxnard Border Patrol Station to the INS Sub-office at Ventura (G.C. Exh. 2(a)). The other employee, Ms. Alma [ v58 p237 ] Chavez, was being reassigned from the Bakersfield Border Patrol Office to the INS Sub-Office at Bakersfield (G.C. Exh. 2(b)). Mr. Marquez was informed that the employees would continue to be assigned duties within the scope of their position descriptions and that their hours of duty would remain from 8:00 am to 4:00 pm (G.C. Exh. 2(a) and 2(b)). Neither reassignment was outside the employee's commuting area (Tr. 63, 95-96). Both letters were captioned "Official Notice Pursuant to Article 3, Section A of the Negotiated Agreement." (G.C. Exhs. 2(a) and 2(b)). [n2]
5. By letter dated April 4, 2000, the Union requested that the Respondent withdraw the reassignments. The Union further stated that if the Respondent intended to implement the reassignments, the Union was exercising its right to bargain over the matter (G.C. Exh. 3). The Respondent replied that it would not withdraw its proposal to temporarily reassign the employees, but requested that the Union submit bargaining proposals no later than April 28, 2000. Further, Respondent stated that the reassignments would be effective May 22, 2000, and that negotiations would commence on May 11, 2000 (G.C. Exh. 4).
6. Negotiations began on May 17, 2000 (G.C. Exh. 7). The parties agreed on ground rules and began to discuss substantive topics. Negotiations were not concluded and the parties agreed to resume negotiations at a later date (Tr. 42-43).
7. The following week, Mr. Marquez spoke with Mr. Madden regarding the resumption of negotiations. Mr. Madden informed Mr. Marquez that the Respondent would not bargain further, but did not provide a reason at that time (Tr. 44). In fact, Mr. Logazino had been advised by Respondent's Regional labor relations personnel that there was no obligation to bargain because the actions contemplated were details and covered by the National Agreement (Tr. 99). By letter dated May 31, 2000, Mr. Logazino informed Mr. Marquez that the March 20, 2000, "Article 3A Notice" was withdrawn stating that details are covered by the National Agreement (G.C. Exh. 8).
8. By letters also dated May 31, 2000, Mr. Logazino informed Ms. Quinones and Ms. Chavez that their details would be effective June 5, 2000 (G.C. Exh. 8 and 9). Ms. Quinones was also informed that her duty hours would be from 7:00 a.m. to 3:30 p.m. (G.C. Exh. 8). Ms. Chavez was told that her duty hours would be 8:00 a.m. to 4:30 p.m. (G.C. Exh. 9).
9. Ms. Quinones began work at the Ventura Sub-Office on June 12, 2000 (Tr. 68). The Ventura Office is part of the Los Angeles District of the INS and is not under the authority of the U.S. Border Patrol (G.C. Exhs. 11 and 13). The Ventura Office is approximately three miles from the Oxnard Border Patrol Station (Tr. 63). At the Oxnard Border Patrol Station, Ms. Quinones had a private office and a locker (Tr. 63-64). In the Ventura Office, she worked in open office space with about 15 employees (Tr. 69-70). In addition, Ms. Quinones has performed new duties at the Ventura office (Tr. 70). Ms. Quinones is also required to return to the Oxnard Border Patrol Station for an hour or so approximately once a week (Tr. 71).
10. Ms. Chavez began work at the Bakersfield Sub-Office on June 5, 2000 (Tr. 81). The Bakersfield Sub-Office is part of the San Francisco Region of the INS and is not under the authority of the U.S. Border Patrol (G.C. Exhs. 11 and 12). At the Bakersfield Border Patrol Station, Ms. Chavez had a private office and access to a kitchen (Tr. 84). At the Bakersfield INS Office, she works in an open area and has no access to a kitchen (id.). Like Ms. Quinones, Ms. Chavez performs new duties at the INS office and is required to periodically return to the Border Patrol Station (Tr. 83-84).
It is not disputed that the temporary assignments of the two bargaining unit employees altered their conditions of employment. However, Respondent contends that it had no duty to bargain over the assignments because the assignments were "details" and covered by the terms of the National Agreement. Accordingly, Respondent argues that it was entitled to effect the details in accordance with the terms of the agreement without further negotiations (citing USDA Forest Service, Pacific Northwest Region, Portland, Oregon, 48 FLRA 857, 859-60 (1993)). In that regard, Respondent further contends that the fact that the National Agreement had expired does not affect that conclusion because, under well-established precedent, provisions resulting from bargaining over mandatory subjects of bargaining survive the expiration of a collective bargaining agreement, unless otherwise agreed by the parties (citing Fed. Aviation Admin., 14 FLRA 644, 647 (1984)). For the reasons that follow, I agree that Respondent was entitled to affect the assignments without further negotiations and, therefore, I recommend that the complaint be dismissed in its entirety. [ v58 p238 ]
1. The assignments were details
The General Counsel concedes that details are covered by the expired National Agreement, but contends that the assignments of Ms. Quinones and Ms. Chavez were not "details" within the meaning of the National Agreement. Where, as here, an unfair labor practice case is governed by the interpre-tation and application of specific terms of a collective bargaining agreement, the Authority must ascertain the meaning of the provision. Soc. Security Admin. v. Amer. Fed. of Gov. Employees, Local 1923, AFL-CIO, 55 FLRA 374, 376 (1999). In interpreting the provisions, the Authority will apply the standards and principles of interpreting collective bargaining agreements employed by arbitrators and the Federal courts. Internal Revenue Serv., Washington, D.C., 47 FLRA 1091, 1111 (1993).
The National Agreement does not define the term "detail". In such circumstances, words should be given their ordinary and popularly accepted meaning. Elkouri & Elkouri, How Arbitration Works 488 (Marlin M. Volz & Edward P. Goggin eds., 5th ed. 1997). Technical terms or terms of art may be defined by reference to special dictionaries. Id. at 492. The Office of Personnel Management (OPM) defines "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." OPM, Guide to Processing Personnel Actions 14-3 (1998); see also Shafritz, Dictionary of Personnel Management and Labor Relations 75 (1980) (substantially identical definition). Owing to the absence of evidence that the parties intended otherwise, I find that OPM's definition of "detail" is properly applied herein.
The assignments of Ms. Quinones and Ms. Chavez were indisputably temporary. Although the record evidence does not indicate a date certain when the assignments would end, the initial notifications of the assignments both stated that the assignments would end at "such time as a new Patrol Agent in Charge is selected." (G.C. Exhs. 2(a) and 2(b)). Absent evidence to the contrary it is reasonable to assume that at such time they would be returning to their regular position.
The General Counsel argues that the assignments were not details, referring to them as "temporary reassignments." (G.C. brief 11-12.) However, the General Counsel does not explain how a temporary reassignment is different than a detail. [n3] Rather, the General Counsel relies solely on Mr. Logazino's testimony that he initially believed that Respondent was required to bargain over the assignments prior to their implementation. Mr. Logazino stated that he thought consultation with the Union was appropriate because the details would last longer than 35 days, noting a provision of the National Agreement prohibiting involuntary details away from the normal duty station (Tr.98). According to Mr. Logazino, he was subsequently advised by agency labor relations personnel that the assignments were details, covered by the National Agreement and that the 35-day limitation did not apply to details within an employee's commuting area (Tr. 99). Based on that advice, Mr. Logazino informed the Union that the Respondent had no obligation to bargain over the details (G.C. Exh. 8). The last bit of testimony relied upon by the General Counsel is Mr. Logazino's statement that he was unaware of other cases where support personnel had been detailed from a Border Patrol Station to an INS office (Tr. 112).
However, none of Mr. Logazino's testimony establishes that the assignments in question were not details within the scope of the relevant National Agreement provisions. First, that Mr. Logazino initially believed there to be a bargaining obligation, is of limited probative value. An agency is certainly able to withdraw an invitation to bargain when it determines that it is under no obligation to bargain. See Fed. Deposit Insurance Corp., Headquarters, 18 FLRA 768, 772 (1985) (where a matter is outside the required scope of bargaining, party may withdraw from negotiations at any time prior to agreement). The dispositive issue is whether, as a matter of law, the obligation to bargain exists, not whether a particular agent of the agency believed such an obligation exists. In that regard, there is no evidence that Mr. Logazino had any specialized knowledge of the meaning of the relevant contract terms. Second, it is not clear that the 35-day limit applied to these assignments. The 35-day limit, contained in Article 26, entitled "Travel and Per Diem" refers to "details away from the normal duty station" (Res. Exh. 1). Although "Normal duty station" is not defined in the National Agreement, context, i.e., the Travel and Per Diem Article, suggests that it refers to the commuting area, details outside of which would entitle an employee to travel expenses. In addition, even if these assignments were within the scope of this provision, that would not establish that they were not "details." To the contrary, it would tend to establish that they were details, albeit details of a specific sort. If the Union believed these assignments were of the sort prohibited by the National Agreement, the Union's remedy would be the grievance procedure. [n4] Finally, that these [ v58 p239 ] particular assignments may be unusual or unique for the Border Patrol, does not establish that they were something other than "details" as the term was intended.
For all these reasons, I conclude that the assignments of Ms. Quinones and Ms. Chavez were details within the meaning of the expired National Agreement.
2. The Respondent was entitled to implement the details without bargaining
It is not disputed that details are "covered by" the terms of the expired National Agreement. The question is whether the Respondent may rely on the expired agreement to detail the employees without bargaining.
Under Authority precedent, an agency is not required to bargain prior to changing conditions of employment where it does so in conformance with previously negotiated procedures. According to the Authority, an agency should be free from a requirement to continue negotiations over terms and conditions of employment already resolved by the previous bargaining, that is, an agency is not required to bargain over a matter "covered by" an existing agreement. U.S. Dep't of Health and Human Serv., Soc. Security Admin., Balt, Md., 47 FLRA 1004, 1017-18 (1993) (SSA). However, 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. In dicta, however, the Authority has suggested that the covered-by doctrine does not apply to expired agreements. See Professional Airways Systems Specialists and U.S. Dep't of Transportation, Fed. Aviation Admin., 56 FLRA 798, 804 & n.11 (2000). Further, an Administrative Law Judge has opined that the doctrine does not apply to expired agreements. U.S. Dep't of Justice, Immigration and Naturalization Serv., Washington, D.C., No. 3-CA-30370, ALJ Decision Reports No. 144 (July 20, 1999), slip op. at 17. However, for the reasons that follow, I conclude that the terms of the expired agreement permitted the Respondent to detail the employees without bargaining with the Union.
As both parties have noted, the Authority's suggestion that an agency may not rely on an expired agreement to assert a "covered by" defense is in apparent tension with the well-established principle 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. In numerous contexts, the Authority has held that parties may rely upon and enforce provisions of expired agreements. [n5] See e.g. United States Dep't of the Air Force, HQ Air Force Materiel Commands, 49 FLRA 1111, 1121 (1994) (arbitrator improperly failed to enforce provision of expired agreement); see also Dep't of Health and Human Serv., Social Sec. Admin., 44 FLRA 870, 881 (1992) (agency could not unilaterally terminate contractual provision upon expiration). According to the Authority, "such a result fosters stability in Federal labor-management relations, which is an underlying purpose of the Statute." Federal Aviation Admin., Northwest Mountain Region, Seattle, Wash., 14 FLRA 644, 647 (1984).
Here, Respondent was justified in relying on the existing bargained-for procedures when it detailed the employees without further bargaining. To find otherwise would run counter to the well-established precedent noted in the preceding paragraph. It is settled that the terms of an expired agreement may protect employees from unilateral changes in conditions of employment. See Dep't of Defense, Dep't of the Navy, Naval Ordnance Station, Louisville, Ky., 4 FLRA 760, 771 (1980) (agency could not unilaterally change composition of union-management committee provided for in expired agreement). Similarly, agencies are entitled to act in accordance with the terms of expired agreements. See United States Nuclear Regulatory Comm'n, 6 FLRA 18, 19-20 (1981) (agency properly relied on terms of expired agreement in limiting postings on union bulletin board). 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.
Of course, upon expiration of a collective bargaining agreement, a union can compel negotiations on any negotiable matter at the appropriate level of recognition. United States Patent and Trademark Office, 57 FLRA [ v58 p240 ] 185, 192 (2001). However, the parties remain bound by the terms of the expired agreement until agreement is reached on different terms, and the agency may continue to act in accordance with the expired agreement. See United States Dep't of the Treasury, Internal Revenue Serv., Washington, D.C. and Internal Revenue Serv., Cincinnati, Ohio District Office, 37 FLRA 1423 (1990) (although obligated to bargain over covered matter pursuant to a reopener clause, agency could continue to act in accordance with contract terms). Further, in this case the only demand to bargain was at the local level, not at the level of recognition, i.e. the national level. See Amer. Fed. of Gov't Employees, Nat. Border Patrol Council, Local 2366, AFL-CIO v. FLRA, 114 F.3d 1214, 1219 (1997) (after National Agreement expired, agency had