United States, Department of Homeland Security, Border and Transportation Directorate, Bureau of Customs, and Border Protection (Respondent) and National Treasury, Employees Union (Charging Party)

[ v59 p910 ]

59 FLRA No. 165

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY,
BORDER AND TRANSPORTATION
DIRECTORATE, BUREAU OF CUSTOMS
AND BORDER PROTECTION
(Respondent)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Charging Party)

WA-CA-02-0485

_____

DECISION AND ORDER

May 6, 2004

_____

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

I.      Statement of the Case

      This unfair labor practice case is before the Authority on exceptions and cross exceptions to the attached decision of the Administrative Law Judge filed by the Respondent and the General Counsel (GC), respectively. Each party filed an opposition. The Respondent also filed a motion to supplement the record, to which the GC filed an opposition.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing interim guidelines on the use of personal cell phones and pagers without giving the Charging Party notice and an opportunity to bargain over the interim guidelines or, in the alternative, by not informing the Charging Party that an overriding exigency required immediate implementation of the interim guidelines. The Judge found that the Respondent did not violate the Statute by implementing the interim guidelines because doing so did not change a condition of employment and because an overriding exigency warranted immediate implementation of the interim guidelines. Nevertheless, the Judge found that the Respondent violated the Statute by not responding to the Charging Party's request to rescind the interim guidelines and to bargain post-implementation. As a remedy, the Judge recommended a cease and desist order and a notice posting. [ v59 p911 ]

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order and Notice, as modified below.

II.     Background and Judge's Decision

      The employees at issue work at various ports-of-entry throughout the United States, where they perform inspections of persons, vehicles, and containers entering the United States. Upon discovering that an Immigration Inspector had used a personal cell phone in an attempt to allow drug smugglers to enter the United States without an inspection, the Respondent implemented a policy entitled "Interim Guidelines on Cell Phones and Pagers in Primary and Secondary Inspection Areas." [n1] Judge's Decision at 2. The Respondent implemented the policy without giving the Charging Party notice and an opportunity to bargain. After the interim guidelines were implemented, the Charging Party requested that they be rescinded until the parties could bargain over them. The Respondent did not respond to the Charging Party's request.

      The GC issued a complaint alleging that the Respondent violated § 7116(a)(1) and (5) of the Statute by implementing the interim guidelines without giving the Charging Party notice of and an opportunity to bargain over them or, in the alternative, by failing to inform the Charging Party that an overriding exigency required implementation of the interim guidelines prior to bargaining.

      The Judge found that the GC and the Charging Party did not show "by a preponderance of the evidence . . . that, prior to [the interim guidelines being implemented], the Respondent generally permitted bargaining unit employees to carry and use personal communication equipment in primary and secondary inspection areas." Id. at 10. In reaching this conclusion, the Judge considered the testimony of two GC witnesses and five Respondent witnesses. He also considered an excerpt from the Respondent's Uniform Handbook, which states that "[o]nly authorized uniform items officially approved by the Commissioner of Customs . . . are authorized to be worn by Customs employees." Id. at 10. The Judge found that the "quoted language tends to corroborate the Respondent's contention that the practices at Champlain, as described by [the GC's witness] were not typical of conditions throughout the country." Id. The Judge acknowledged the Respondent's witness' testimony that the interim guidelines "changed the working conditions of bargaining unit employees[,]" but he found that the statement did not amount to an admission that implementation of the interim guidelines changed bargaining unit employees' conditions of employment. Id. at 15.

      The Judge further found that, although there was no written policy concerning the use of cell phones and pagers, there was a "general prohibition against carrying and using" those devices. Id. at 6 n. 6. According to the Judge, there was "some divergence of practice," id. at 10, because some ports "departed from this general prohibition" by allowing employees to carry and/or use personal cell phones and pagers in the primary and secondary inspection areas. Id. at 6 n.6. However, he found that "such isolated incidents do not amount to a past practice." Id. at 14. Based on the foregoing, the Judge concluded that the implementation of the interim guidelines did not change bargaining unit employees' conditions of employment and that "the Respondent did not violate the Statute by failing to give advance notice to the Union or to bargain . . . ." Id. at 16 (citing United States Dep't of the Air Force, 6th Support Group, MacDill AFB, Fla., 55 FLRA 146, 152 (1999)).

      The Judge further found that "the circumstances which caused the Respondent to issue the [g]uidelines also justified their immediate implementation." Id. at 13. In this connection, the Judge found that "the Respondent immediately implemented the [g]uidelines in order to close . . . a serious `loophole' in border security." Id. Consequently, the Judge concluded that the Respondent "had no duty to give the Union advance notice of its reliance on an overriding exigency" and, therefore, did not violate the Statute in this regard. Id. at 16 n.17.

      Nevertheless, as relevant here, the Judge found that the Respondent violated the Statute by failing to respond to the Charging Party's request to rescind the interim guidelines and bargain post-implementation. In so finding, the Judge explained that "the duty to bargain requires, at the very least, a response to a demand to bargain and an explanation of the reason for an agency's refusal to negotiate[.]" Id. at 16 (citing Army and Air Force Exchange Serv., McClellan Base Exchange, McClellan AFB, Ca., 35 FLRA 764, 769 (1990)). As a remedy, the Judge recommended a cease and desist order and a notice posting. [ v59 p912 ]

III. Positions of the Parties  [n2] 

A.     GC's Exceptions

      The GC excepts to the Judge's finding that cell phones and pagers generally were prohibited in the primary and secondary inspection areas and to his conclusion that implementation of the interim guidelines did not change a condition of employment. In this connection, the GC asserts that the Judge should not have relied on the Uniform Handbook to corroborate the Respondent's position that the working conditions at the Champlain port were atypical of the conditions throughout the country. [n3]  According to the GC, the Uniform Handbook is relevant only to the question of whether employees wore personal communication devices on their uniform belts. See GC's Exceptions at 19. The GC also argues that the Judge should not have found its witness' work experience at the Champlain port atypical of the work experience of other employees at that port simply because his work was performed in overtime capacity. See id. at 20.

      The GC asserts that the Judge correctly found that the use of personal communication equipment in the inspection areas is a condition of employment. However, according to the GC, the Judge should have found that the Respondent changed that condition of employment when it implemented the interim guidelines. In addition, the GC asserts that the Judge should have found that bargaining unit employees were adversely affected by the change and that the effect of the change was more than de minimis. See id. at 24. The GC does not dispute the Judge's finding that the Respondent was entitled to implement the interim guidelines without notice due to an overriding exigency. See GC's Exceptions at 29. However, the GC argues that the Judge should have found that the Respondent was required to bargain post-implementation with the Charging Party.

      According to the GC, the reason that the Judge did not find that the Respondent was required to bargain post-implementation was because he incorrectly relied on past practice case law in determining that there was no change in conditions of employment. See id. at 29-30. In this connection, the GC asserts that, under the Authority's precedent, adopting a new policy to replace numerous different policies is analyzed as a change in working conditions, and not as a change in past practice. Id. at 30 (citing Fed'l Bureau of Prisons, Fed'l Corr. Inst., Bastrop, Tex., 55 FLRA 848 (1999)). In any event, the GC argues that the interim guidelines "constituted a change from the practice that had been in place prior to the [implementation of the] [g]uidelines." Id. at 21.

      Finally, the GC excepts to two aspects of the Judge's remedy. First, the GC asserts that the Judge should have recommended that the parties be ordered to bargain over the interim guidelines because those guidelines are still in effect and will remain in effect until bargaining over the permanent directive is complete. Second, the GC argues that the Judge should have recommended a posting in all of the Respondent's facilities where Customs inspectors who are represented by the Charging Party work, and not just in the Central Region.

B     Respondent's Opposition

      The Respondent asserts that the Judge's reliance on the Uniform Handbook and his evaluation of the GC witness' testimony regarding his work experiences were proper. According to the Respondent, this evidence, coupled with corroborating testimony from Respondent witnesses, support the Judge's conclusion that the Respondent did not change a condition of employment by implementing the interim guidelines. See Respondent's Opposition 4-7.

      The Respondent also asserts that evidence of local exceptions to a national policy is insufficient to prove the existence of an established past practice. See id. at 10. According to the Respondent, "in virtually all locations[,] employees were prohibited from using their personal cell phones and pagers in the primary and secondary areas." Id. at 11.

      Finally, the Respondent argues that post-implementation bargaining is not warranted "now that the parties have already engaged in bargaining over the Customs Directive which is intended to supersede the Interim Guidelines and contains the same prohibition at issue in this case." Id. at 18.

C.      Respondent's Cross Exceptions

      According to the Respondent, the Judge's Order should be modified to delete "any language . . . regarding the Agency's implementation of changes in conditions [ v59 p913 ] of employment without informing the Union" because the Judge "clearly made the finding that the Respondent's implementation of the [g]uidelines involved in this case did not cause a change in conditions of employment . . . ." Cross Exceptions at 2 (emphasis omitted). In addition, the Respondent asserts that, because the Judge found only one violation and concluded that the Respondent acted properly by implementing the interim guidelines without notice, "it is appropriate to add the `in any like or related manner' language to the Order and Notice provisions." Id. at 3. According to the Respondent, the Judge's recommended order is too "broad and sweeping" without this "qualifying language." Id. at 4. Based on the foregoing, the Respondent asks that sections 1(b) and 2(b) be excluded from the Order, that section 1(c) be modified in the Order, and that paragraphs 2 and 5 be excluded from the Notice.

D.     GC's Opposition

      The GC does not oppose the Respondent's request to add the "in any like or related manner" wording to the Order. Cross-Exceptions at 3. However, the GC argues that the Respondent's cross exceptions as to the other sections of the Order and Notice should be denied. In this regard, the GC asserts that the Judge's Order is consistent with his finding that, by failing to inform the Charging Party that it implemented the change due to an overriding exigency, the Respondent "deprived the Charging party of information necessary for the effective representation of the bargaining unit." GC's Opposition at 3 (quoting Judge's Decision at 16).

IV.     Preliminary Matter

      After the interim guidelines were implemented, the Respondent advised the Charging Party of its intent to implement a permanent directive to replace the interim guidelines. Bargaining over the permanent directive took place, and as a result, a negotiability petition was filed with the Authority. In addition, the parties requested assistance from the Federal Service Impasses Panel (FSIP). See Judge's Decision at 7. Pursuant to 5 C.F.R. § 2423.21, the Respondent moves to supplement the record with certain documents related to the parties' negotiability dispute that is now before the Authority and their request for assistance from FSIP. The Respondent explains that these documents were issued after the close of the hearing and asserts that they are relevant to the question of whether the Respondent has engaged in bargaining with the Charging Party over the permanent directive. The GC opposes the motion as irrelevant, arguing that the dispute at hand concerns only the interim policy, and not the permanent directive.

      Under § 2429.5 of the Authority's Regulations, the Authority may take official notice of the record of other FLRA proceedings, including FSIP, as would be proper. See, e.g., SSA, Office of Hearings and Appeals, Region II, Buffalo Office of Hearings and Appeals, Buffalo, N.Y., 58 FLRA 722, 724 n.6 (2003) (taking official notice of FSIP's decision and Order resolving the parties' impasse); Nat'l Guard Bureau, 57 FLRA 240, 244 (2001); United States Dep't of VA, 57 FLRA 515, 518 n.5. (2001). The Respondent's supplemental submissions relate to other FLRA proceedings involving the parties in this case. In addition, the Judge considered the parties' bargaining history over the Directive in his discussion of an appropriate remedy. See Judge's Decisions at 17. Therefore, we take official notice of the records of the parties' negotiability appeal and request to FSIP.

V.     Analysis and Conclusions

A.      The Judge Did Not Err In Concluding that there Was No Change In Conditions of Employment

      The determination of whether a change in conditions of employment has occurred involves an inquiry into the facts and circumstances regarding the Respondent's conduct and the employees' conditions of employment. See 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995) (citing United States Dep't of Trans., Fed'l Aviation Admin., Wash., D.C., 44 FLRA 482, 493 n.3(1992)). In addition, when reviewing a Judge's factual findings, the Authority reviews the record to determine whether those factual findings are supported by substantial evidence in the record as a whole. See, e.g., United States Dep't of Transportation, 48 FLRA 1211, 1215 (1993). The GC disputes the Judge's conclusion that there was no change in conditions of employment when the interim guidelines were implemented. The Judge's conclusion in this regard is based on his finding that there was already a "general prohibition" against the use of personal cell phones and pagers in the primary and secondary inspection areas. Judge's Decision at 6 n.6. As more fully explained below, we find that the Judge's conclusion that there was no change in conditions of employment is supported by substantial evidence in the record as a whole.

      An examination of the record reveals that two witnesses testified for the GC. One testified that, prior to the issuance of the interim guidelines, he and three other employees at the Champlain port used personal cell phones and pagers in the primary and secondary inspection areas. See Judge's Decision at 8. The other testified that, before the interim guidelines were implemented, [ v59 p914 ] employees were allowed to carry and use personal cell phones in the inspection areas. Five witnesses testified for the Respondent. The Director of the Buffalo port testified that he supervises 500 employees and that, at the Buffalo port, the use of personal cell phones and pagers is prohibited in the primary and secondary inspection areas. See id. at 9. A Labor Relations Specialist testified that the interim guidelines were implemented to "reaffirm" the Respondent's prohibition on the use of personal cell phones and pagers in the primary and secondary inspection areas. Transcript at 154. She also testified that the Respondent later discovered that the interim guidelines "did constitute a change" in the practices at some ports. Id. at 160, 162. Two other management officials testified that the Respondent's policy was to prohibit employees from making calls in the primary and secondary inspection areas. See id. at 178, 191. The fifth witness testified that he once saw an employee using a cell phone at the Arizona port. See id. at 210. In addition, the evidence shows that the Respondent operates approximately 300 ports around the country, see Transcript at 174, and that it has a policy against unauthorized items being worn on employee uniforms. See Judge's Decision at 10.

      The Judge's conclusion, that the Union had demonstrated that some employees at the Champlain port used cell phones and pagers in the primary and secondary inspection areas but that this was atypical of the practices throughout the country, is supported by substantial evidence in the record. In this connection, the Respondent's witnesses presented consistent testimony that the Agency's policy was to prohibit such use, even though they acknowledged that some ports may have deviated from this policy. Moreover, the Union's evidence that at least 3 employees at the Champlain port used personal cell phones and pagers is diminished by the fact that there are approximately 300 ports across the country. In this connection, although there is no evidence of the Respondent's total number of employees, the record shows that the Buffalo port has approximately 500 employees, and the policy in Buffalo is that no cell phones and pagers are permitted in the primary and secondary inspection areas. In addition to the Union's evidence, the Respondent's evidence shows only two specific instances of an inspector using a cell phone in the primary and secondary inspection areas. That is, one of the Respondent's witnesses testified to seeing an inspector use a cell phone at the Arizona port, see transcript at 210, and other evidence establishes that an Immigration Inspector used a cell phone to communicate with drug smugglers, which is what prompted this written policy. See Judge's Decision at 6.

      In this connection, the GC disputes the Judge's consideration of the Respondent's Uniform Handbook, in which the Respondent prohibits the inspectors from wearing certain items on their uniforms. According to the GC, the Uniform Handbook is relevant only to the question of whether employees wore personal communication devices on their uniform belts. See GC's Exceptions at 19. The Judge found, in this regard, that the Uniform Handbook "tends to corroborate the Respondent's contention that the practices at Champlain . . . were not typical of conditions throughout the country." Id. The Judge's conclusion that there was no change in conditions of employment is supported by substantial record evidence, notwithstanding his reliance on the Uniform Handbook. Accordingly, the GC's exception is not persuasive, and we deny the exception.

B.      The Judge Correctly Found No Past Practice of Using Personal Cell Phones and Pagers In the Primary and Secondary Inspection Areas

      The GC argues that "there was no general prohibition of carrying and using personal communication equipment in primary and secondary inspection areas." Exceptions at 23. It is well established that parties may establish terms and conditions of employment by practice, or other form of tacit or informal agreement, and that this, like other established terms and conditions of employment, may not be altered by either party in the absence of agreement or impasse following good faith bargaining. See, e.g., Dep't of the Navy, Naval Underwater Systems Ctr., Newport Naval Base, 3 FLRA 413, 414 (1980). In order to establish a condition of employment by past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. See, e.g., USDA Forest Serv., Pacific N.W. Region, Portland, Or., 48 FLRA 857 (1993); see also United States Dep't of Health and Human Serv., Social Security Admin. and Social Security Admin. Field Ops., Region II, 38 FLRA 193, 207 (1990). Essential factors in finding that a past practice exists are that the practice must be known to management, responsible management must knowingly acquiesce in the practice, and the practice must continue for a significant period of time. See, e.g., Dep't of Health, Educ. and Welfare, Region V, Chicago, Ill., 4 FLRA 736 (1980).

      Applying these standards, we agree with the Judge's conclusion that there was no established past practice of permitting employees to use personal cell phones and pagers in the primary and secondary inspection areas. In this regard, the record supports the Judge's finding that the use of personal cell phones and [ v59 p915 ] pagers in the Champlain port and other ports amounts to "isolated incidents [that] do not amount to a past practice." Judge's Decision at 14. In particular, the evidence shows that there are a large number of ports as compared to the small number of reported incidents of cell phone use. Compare Tr. at 210 with Tr. at 174 and Judge's Decision at 6. In addition, the Respondent's witnesses consistently testified that such use was generally prohibited prior to the implementation of the interim guidelines. Specifically, the Director of the Buffalo port testified that the use of personal cell phones and pagers is prohibited in the primary and secondary inspection areas at the Buffalo port. See Judge's Decision at 9. Also, another witness testified that the interim guidelines were implemented to "reaffirm" the Respondent's prohibition on the use of personal cell phones and pagers in the primary and secondary inspection areas. Tr. at 154. In our view, the few instances of cell phone use that have been shown are insufficient to establish a widespread practice of using personal cell phones and pagers in the primary and secondary inspection areas or demonstrate that management was aware of, and acquiesced to, the practice. Consequently, we conclude that the Judge's finding that the Respondent's practice was to prohibit the use of personal cell phones and pagers in the primary and secondary inspection areas is supported by substantial evidence in the record as a whole. Accordingly, we deny the GC's exception.

C.      The Judge's Recommended Order and Notice Must Be Modified                    

      According to the GC, the Judge should have ordered the Respondent to engage in post-implementation bargaining to remedy the violation of not responding to the Charging Party's request to rescind the interim guidelines and bargain post-implementation. However, we agree with the Judge that this remedy is unnecessary in the circumstances of this case. Because the implementation of the interim guidelines did not change a condition of employment and the parties are bargaining over a permanent directive that will replace the interim guidelines, we find that bargaining over the interim guidelines is not warranted and would serve no useful purpose to the parties. In this connection, we note that the GC does not contend that the subject matters of the interim guidelines and the directive are different, such that an agreement over the directive would not resolve the parties' dispute over the interim guidelines. We also note that the Authority recently determined that certain Union proposals over the permanent directive were not within the duty to bargain. See NTEU, 59 FLRA No. 154 (2004). Consequently, we deny the GC's request to modify the Order by requiring bargaining over the interim guidelines.

      The GC requests that the scope of the posting be expanded to include all of the Respondent's facilities where Customs inspectors who are represented by the Charging Party work, and not just the Central Region. The GC's request is consistent with the Authority's precedent holding that a nationwide posting is appropriate when the ULP is committed at the national level. See FDIC, Wash., D.C., 48 FLRA 313, 331 (1993), petition for review denied, No. 93-1694, (D.C. Cir. Dec. 22, 1994). As it is undisputed that the Respondent's interim guidelines establish a national policy that applies to all Customs inspectors who work in primary and secondary inspection areas, we will modify the Order and Notice to require posting consistent with the GC's request.

      The Respondent requests that the Judge's recommended Order and Notice posting be modified to omit all wording regarding changing conditions of employment because the Judge found that the Respondent did not change a condition of employment. Because the only violation found in this case is the Respondent's failure to respond to the Charging Party's request to rescind the interim guidelines and bargain thereafter, we will modify the Order and Notice to exclude the paragraphs regarding changing conditions of employment.

      Finally, the Respondent requests that section 1(C) of the Order be modified to include the words "in any like or related manner." Cross Exceptions at 3. Because the GC does not oppose the Respondent's request and the requested wording is consistent with the wording commonly used in the Authority's orders, we will modify the Order and Notice as requested.

VI.     Decision

      The GC's exceptions as to the merits of the Judge's decision are denied. The Judge's recommended Order and Notice is adopted, as modified consistent with this decision.

VII.     Order

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the United States Department of Homeland Security, Border and Transportation Directorate, Bureau of Customs and Border Protection, shall:

      1.      Cease and desist from:

           (a)      Failing to respond to requests to bargain by the National Treasury Employees Union. [ v59 p916 ]

           (b)      In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      2.      Take the following affirmative action:

           (a)      Respond to requests to bargain by the National Treasury Employees Union.

            (b)       Post at all of its facilities copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms they shall be signed by the Commissioner of Customs, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced or covered by any other material.

           (c)      Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Washington Region, Federal Labor Relations Authority, in writing, within 30 days of the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of Homeland Security, Border and Transportation Directorate, Bureau of Customs and Border Protection violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT fail to respond to requests to bargain by the National Treasury Employees Union.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL respond to requests to bargain by the National Treasury Employees Union.

      _______________________
                                         (Agency)

Dated: __________ By: _______________________

                               (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington Regional Office, whose address is: Federal Labor Relations Authority, Tech World Plaza, 800 K Street, NW, Suite 910, Washington, DC 20001, and whose telephone number is: 202- 482-6700.


File 1: Authority's Decision in 59 FLRA No. 165
File 2: ALJ's Decision


Footnote # 1 for 59 FLRA No. 165 - Authority's Decision

   Initial inspections are performed in primary inspection areas; more detailed inspections are performed in secondary inspection areas. See Jud