United States, Department of Homeland Security, Border and Transportation Security, Directorate, U.S. Customs and Border, Protection, Border Patrol, Tucson Sector, Tucson, Arizona (Respondent) and American Federation of Government Employees, Local 2544 (Charging Party/Union)

[ v60 p169 ]

60 FLRA No. 40

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY,
BORDER AND TRANSPORTATION SECURITY
DIRECTORATE, U.S. CUSTOMS AND BORDER
PROTECTION, BORDER PATROL,
TUCSON SECTOR
TUCSON, ARIZONA
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 2544
(Charging Party/Union)

DE-CA-02-0428

_____

DECISION AND ORDER

August 24, 2004

_____

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 (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exceptions.

      The Judge found that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it ordered that some aliens who had been apprehended by agents of Casa Grande Station be transferred to Tucson Station for processing, without providing the Union prior notice and an opportunity to bargain over the impact and implementation of the order.

      Upon consideration of the Judge's decision and the entire record, we conclude, for the reasons discussed below, that the Respondent did not commit the unfair labor practices alleged in the complaint. Accordingly, we will dismiss the complaint.

II.      Background & Judge's Decision

      The Border Patrol is part of the Department of Homeland Security. It consists of 21 geographic sectors throughout the United States, including the Tucson Sector. The Tucson Sector consists of 8 stations: Ajo; Casa Grande; Douglas; NACO; Nogales; Sonoita; Tucson; and Willcox. See Judge's Decision at 3; GC Ex. 6. Each station is headed by a Patrol Agent in Charge (PAIC) and an Assistant Patrol Agent in Charge (APAIC).

      Throughout each station's area of responsibility, agents patrol the border with Mexico, respond to calls, and apprehend aliens. After aliens are apprehended, the apprehending agent prepares the initial paperwork in the field. The aliens are then transported to a station for processing. The processing procedures are the same at every station in the Tucson Sector. Processing includes recording data about and fingerprinting the apprehended alien, and entering the data into a computer program in order to determine whether the alien has any prior arrests or criminal convictions. Through this process, the agent obtains the alien's case file -- referred to as an "A-file" -- if one already exists, or creates an A-file if one does not. The agent then determines whether the alien can be returned to Mexico or is to be held for a deportation hearing. Processing time may take up to 2 hours, depending on whether an A-file exists or not. See Judge's Decision at 6 (citing Transcript (Tr.) at 33, 127 28).

      In the second quarter of fiscal year 2002, all stations in the Tucson Sector started experiencing a marked increase in the number of arrests made by agents each month. For example, in January 2002, the number of arrests made by agents of both the Casa Grande Station and the Tucson Station more than tripled from the number made in December 2001. See G.C. Ex. 6. The number of arrests made by agents of both stations also increased substantially in February, and in March the number of arrests rose significantly again. See id. Thus, from December 2001 to March 2002, the number of monthly arrests made by agents of Casa Grande Station had risen from 1,333 to 9,727, and the number made by agents of Tucson Station had risen from 985 to 7,091.

      Prior to late March 2002, most aliens who were apprehended by Casa Grande Station agents were processed at Casa Grande Station. Beginning in late March and continuing through September 2002, about half of the aliens who had been apprehended by Casa Grande Station agents were transported to Tucson Station for processing. See G.C. Ex. 7. The manner in which [ v60 p170 ] agents processed aliens, which was the same at both stations, did not change.

      On April 25, 2002, the Union President wrote the Tucson Station PAIC. The letter stated that the Union had been advised that "Tucson Station agents have been directed to work 6th day overtime in order to process aliens" and noted that "Tucson [S]tation agents were recently tasked with processing aliens apprehended by Casa Grande agents." G.C. Ex. 5. The letter further stated that "[t]hese changes have created an overload of processing duties, in turn creating a shortage of available agents assigned to the Tucson [S]tation." Id. The Union requested to bargain over "the impact and implementation of the changes[.]" Id. Although, as explained below, the Respondent provided additional agents to Tucson Station, it refused to bargain over the Union's request.                                   

      The General Counsel issued a complaint alleging that in April 2002, the Respondent "implemented a change in working conditions of bargaining unit employees when [it] directed that aliens apprehended by the Case [sic] Grande Station be transferred to the Tucson Station for processing." [n2] See G.C. Ex. 1(c), ¶ 11. The complaint further alleged that the Respondent failed to provide the Union with notice and an opportunity to negotiate "over this change to the extent required by the Statute[,]" thereby violating § 7116(a)(1) and (5) of the Statute. See id., ¶¶ 12-13. The Respondent's answer to the complaint denied these allegations. See G.C. Ex. 1(d), ¶¶ 11-13.

      As an initial matter, the Judge determined that the Respondent changed a condition of employment of Tucson Station agents by directing that aliens apprehended by Casa Grande Station agents be transported to Tucson Station for processing. In this regard, the Judge found that, "before March, 2002, a condition of employment had been that each Station process the aliens it arrested. This was the policy and the practice." Judge's Decision at 5.

      The Judge stated that although the decision to transfer aliens to Tucson Station was a reserved management right that was outside the duty to bargain, the Respondent was nonetheless obligated to give the Union notice and an opportunity to bargain over the impact and implementation of the change if the effect of the change was more than de minimis. In considering whether the effect of the change on employees' conditions of employment was more than de minimis, the Judge first found that management "readily agreed to the Union's request to make an earnest effort to get volunteers from other Stations[.]" Id. In this regard, the Judge stated that:

beginning in April, 2002, Respondent brought thirty Agents each month from the Nogales Station to augment the Tucson Station workforce which, notwithstanding the additional processing workload, made five or six more Agents available for field duty than before April, 2002; and when the Tucson Station became overloaded it required Casa Grande to process aliens it apprehended or transfer them to the Nogales Station until the backlog at Tucson was cleared.

Id. at 5-6. [n3] 

      The Judge found that, "[n]evertheless, the magnitude of the processing work imposed on the Tucson Station was more than de minimis." Id. at 6. In so finding, the Judge concluded that the processing of each alien is a "time consuming operation[.]" Id. Citing testimony of the Respondent that the overloading of facilities at the Tucson Station "happens on a regular basis[,]" the Judge found that "[o]bviously, filling facilities, much less overloading facilities on a regular basis, creates sanitary concerns, safety concerns and health concerns both for detainees and for employees exposed to it." Id.

      The Judge agreed with the Respondent's contention that it had no duty to bargain over the matter of overtime because "overtime is covered by the Agreement of the parties[.]" Id. However, he went on to find that the use of 30 additional agents each month from Nogales Station was also a matter for impact and implementation bargaining. Id.

      In sum, the Judge found that "the change of conditions of employment here, whereby huge numbers of aliens arrested by Casa Grande [a]gents were transferred to Tucson Station for processing . . . affected the entire Tucson Station by imposing an enormous new workload on the Tucson Station." Id. (citing United States Dep't of Justice, INS, United States Border Patrol, San Diego [ v60 p171 ] Sector, San Diego, Cal., 35 FLRA 1039 (1990) (INS San Diego)). Finding that the Respondent did not give the Union prior notice of the change and refused to bargain over the impact and implementation of the change, the Judge concluded that the Respondent violated § 7116(a)(1) and (5) of the Statute.

III.      Positions of the Parties

A.      Respondent's Exceptions

      The Respondent excepts to the Judge's conclusions that: (1) the transfer of some aliens to Tucson Station for processing changed Tucson Station employees' conditions of employment; (2) the effect of the change was more than de minimis; and (3) the use of thirty agents each month from Nogales Station to Tucson Station was also a matter for impact and implementation bargaining.

1.      There was no change in Tucson Station employees' conditions of employment

      The Respondent argues that the transfer of some aliens to Tucson Station for processing did not result in a change in Tucson Station employees' conditions of employment. In this regard, the Respondent maintains that Tucson Station agents were not required to do something that was not previously required of them, because processing is one of the duties regularly assigned to and performed by the agents. In this connection, the Respondent asserts that processing assignments for agents remained the same; the routine practice for processing aliens remained the same; and the processing procedure is the same whether the alien is apprehended by Casa Grande Station or Tucson Station. According to the Respondent, "[t]he actual location where an alien is apprehended plays no part in how they are processed, the processing duty and procedure remains the same." Exceptions at 16. In addition, the Respondent contends that Tucson Station agents were not expected to produce greater output or to stay on duty past the end of their shifts.

      The Respondent also asserts that "the volume or amount of processing work is not a change in working conditions." Id. at 8. In support, the Respondent asserts that "Tucson Station would have had more processing work anyway," because "[t]he number of aliens that must be processed fluctuates radically[,] depending on the number of apprehensions made[.]" Id. The Respondent asserts that the entire Tucson Sector "experienced a sharp increase in illegal alien activity, apprehensions and arrests beginning in January of 2002, reaching a peak in April of 2002." Id. at 5-6.

      The Respondent also disputes the Judge's finding that prior to March, "`a condition of employment had been that each Station process the aliens it arrested[.]'" Id. at 7 (quoting Judge's Decision at 5). The Respondent asserts that, although "not a common occurrence, it is not unheard of" for other stations to send apprehensions to Tucson Station for processing. Id. at 8.

      The Respondent claims that there is no dispute that the Respondent detailed agents to and allocated additional funding for Tucson Station in order to meet its operational needs. The Respondent asserts that these "supplemental resources" enabled Tucson Station to process aliens apprehended by Casa Grande Station and allowed for the assignment of additional agents to the field. Id. at 9.

      In addition, the Respondent disputes the Judge's finding that "[o]bviously" the transfer of some aliens created "sanitary concerns, safety concerns and health concerns" for bargaining unit employees. Judge's Decision at 6. According to the Respondent, there is no record evidence that processing aliens from Casa Grande Station posed a greater health and safety risk to the agents because "there was no difference in procedure." Exceptions at 10. The Respondent argues that agents perform a job that is inherently dangerous and agents can contract diseases or get assaulted anywhere -- whether it be in the processing room or in the field. In addition, the Respondent argues that there was no evidence that the processing room was filled beyond capacity or that it was improperly ventilated. The Respondent also contends that Tucson Station would decline additional aliens "whenever it became overloaded." Id. at 6.

      The Respondent also contends that there is no evidence that processing aliens arrested by Casa Grande Station would cause Tucson Station agents to receive lower ratings in their performance appraisals or would prevent the agents from receiving awards or promotions. The Respondent argues that processing does not negatively affect agents' promotion potential.

2.      The effect was no more than de minimis

      The Respondent argues that the Judge erred in finding that the effect of the change was more than de minimis. In this connection, the Respondent cites as an undisputed fact that "the actual work of processing an alien is no different whether the alien was apprehended in Tucson Station or Casa Grande Station." Id. at 14. The Respondent also asserts as undisputed that it arranged for additional agents to be detailed to Tucson Station and that it allocated extra funding for overtime [ v60 p172 ] to facilitate processing. In addition, the Respondent argues that due to "the general upsurge in alien apprehensions" during the 6-month period cited by the Judge, regardless of the transfer of aliens from Casa Grande to Tucson Station, the amount of processing work at Tucson Station "increased dramatically[]" and "Tucson Station's workload required much more processing than usual." Id.

      The Respondent also argues that the Judge erroneously relied on INS San Diego to support his conclusion that the effect of the change in this case is more than de minimis. The Respondent asserts that INS San Diego involved the assignment of new duties and distinguishes the present case on the basis that here, there is no dispute that no new duties are involved and that processing duties are the same regardless of which station makes the apprehension.

3.      The Judge's finding that the use of thirty agents each month from Nogales was also a matter for impact and implementation bargaining was not a matter that was before the Judge

      Finally, the Respondent contends that the Judge erred in finding that the "use of the thirty [a]gents each month from Nogales was also a matter for [impact and implementation] bargaining." Id. at 15 (quoting Judge's Decision at 6). The Respondent argues that this matter was not an issue in the complaint and was not properly before the Judge for resolution. In addition, the Respondent contends that the details of agents from other stations is a matter that is "covered by" the parties' contract and, therefore, is not a matter for impact and implementation bargaining. [n4] Id. at 16.

B.      GC's Opposition

      The GC asserts that: (1) the Judge did not err in finding that the Respondent changed conditions of employment when it began transferring aliens arrested by Casa Grande Station to Tucson Station for processing; (2) the Judge did not err in finding that the effect of the change was more than de minimis; and (3) it would be premature to determine whether the use of the thirty agents from Nogales Station was a matter for impact and implementation bargaining.

1.      The Respondent changed conditions of employment of Tucson Station employees

      The GC asserts that the Judge did not err in finding that the Respondent changed conditions of employment when it began transferring aliens arrested by Casa Grande Station to Tucson Station for processing. The GC asserts that prior to late March, the two stations operated independently, with each station processing only the aliens apprehended in their respective areas of responsibility. The GC argues that that the transfer of Casa Grande Station aliens to Tucson Station for processing resulted in a 70% increase in workload for the Tucson Station, or the processing of over 100 additional aliens per day. As a result, the GC contends that Tucson Station agents were forced to deal with constant levels of over-crowding and a "crushing workload" which had not previously been experienced. Opposition at 5. The GC contends that in view of this "massive shift" of aliens, there is "no support in the evidence" for the Respondent's assertion that the Tucson Station's workload remained the same before and after the shift. Id.

2.     The effect was more than de minimis

      The GC argues that the Judge did not err in finding that the effect of the change was more than de minimis. The GC asserts that the nature and extent of the effect, or the reasonably foreseeable effect, of the change on Tucson Station agents exceeded the Authority's de minimis standard. In this connection, the GC argues that the change resulted in "`6th day' mandatory overtime" to process the additional aliens; that employees occasionally used administratively uncontrollable overtime (AUO) to complete their processing duties; and that the increased workload resulted in agents occasionally missing the opportunity to take breaks or eat meals. Id. at 7.

      The GC also argues that as a result of the change, Tucson Station agents were spending more time processing aliens and less time in the field, which reduced the Tucson Station agents' "opportunity to distinguish themselves by performing field work" and "the type of high-profile work for which [a]gents receive career-enhancing recognition . . ., such as high performance appraisal ratings and performance awards." Id. at 7-8.

      In addition, the GC argues that the increase in the number of aliens processed by Tucson Station resulted in overcrowding, congested conditions, and multiplied health and safety risks for agents. The GC asserts that the increased number of aliens processed at the Tucson Station has increased agents' exposure to aliens, which in turn leads to increased exposure to diseases, such as [ v60 p173 ] tuberculosis and hepatitis, and to unsanitary and unhealthy conditions. The GC contends that the resulting effect on the agents' health and safety is more than de minimis.

      The GC also rejects the Respondent's assertion that agents perform inherently hazardous and dangerous duties.  In this regard, the GC argues that the change "drastically `compounded' the day-to-day health and safety risks" which the Tucson Station agents face and that this increase was greater than de minimis. Id. at 10.

3.      It would be premature to determine whether the use of the thirty agents from Nogales Station was a matter for impact and implementation bargaining

      With regard to the Judge's finding that the use of the thirty agents from Nogales was a matter for impact and implementation bargaining, the GC asserts that "it would be premature" to consider whether any hypothetical Union proposals regarding details would be "covered by" the contract in light of the Agency's refusal to negotiate or consider any Union proposals. Id. at 11. [n5] 

IV.      Analysis and Conclusions

A.      The Judge erred in finding that the Respondent changed a condition of employment.

      In order to determine whether the Respondent's action violated the Statute, there must first be a finding that the Respondent changed unit employees' conditions of employment. See, e.g., United States Dep't of Labor, OSHA, Region 1, Boston, Mass., 58 FLRA 213, 215 (2002); United States INS, N.Y., N.Y., 52 FLRA 582, 585 (1996); United States INS, Houston Dist., Houston, Tex., 50 FLRA 140, 143 (1995) (INS Houston). The determination of whether a change in conditions of employment has occurred involves a case-by-case analysis and an inquiry into the facts and circumstances regarding the Respondent's conduct and employees' conditions of employment. See 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995) (Fairchild); INS Houston, 50 FLRA at 144.

      The Judge concluded that the Respondent changed a condition of employment when it "directed that aliens apprehended by Casa Grande be transported to the Tucson Station for processing[.]" Judge's Decision at 5. For the reasons below, we find that the Judge erred in finding that the Respondent changed a condition of employment of bargaining unit employees.

      The record clearly indicates that, commencing in January 2002, the number of aliens apprehended in the Casa Grande Station increased dramatically. The evidence shows that for the months of October through December 2001, the number of apprehensions ranged from 1,296 to 1,333 persons. Starting in January 2002, the number rose to 4,055 and in March, the number increased to 9,727 apprehensions. When asked why arrests made by agents at the Casa Grande Station were sent to Tucson for further processing, the Tucson Station PAIC testified that:

it was recommended that because of the heavy volume of activity in the Casa Grande area, that it would be more advantageous, rather than taking the people . . . all the way back to Casa Grande and then eventually having to transfer them and move them to Tucson, that it would be from a logistics standpoint much more efficient to bus them directly to the Tucson Station.

Tr. at 171-72.

      There is no evidence in the record, and the General Counsel does not argue, that the Respondent promulgated any policy or took any action that resulted in the larger number of aliens that were apprehended. Rather, the number of alien apprehensions increased at all of the stations within the Tucson Sector, for reasons that are not explained in the record. See GC Ex. 6. Having been presented with this influx, the Respondent took several measures, including the transport of some aliens to the Tucson Station for further processing. The question thus becomes whether the transport of some of the aliens apprehended by agents at the Casa Grande Station to the Tucson Station changed conditions of employment of Tucson Station agents, as the complaint alleges.

      It is undisputed that processing is one of the tasks that Tucson Station agents perform as a part of their normal, rotational duties. It is also undisputed that the procedure for processing aliens is the same at each of the various stations within Tucson Sector. Although the record demonstrates that the number of aliens processed at Tucson Station further increased in March, as a result of the transport of some of the Casa Grande apprehensions, there was no change to the type of duties that the Tucson Station agents were required to perform. That is, the Tucson Station agents continued to perform the same processing procedures when processing aliens apprehended by Casa Grande Station that they performed [ v60 p174 ] when processing aliens that were apprehended by Tucson Station. In addition, the Judge made no finding, and there is no evidence in the record, to show that Tucson Station agents were required to process apprehensions more expeditiously, with greater frequency, or, as noted above, in any changed manner.

      Consequently, we find that the Judge erred in concluding that the Respondent changed a condition of employment of Tucson Station agents by directing that aliens apprehended by Casa Grande Station agents be transported to Tucson Station for processing.

      We also find that the Judge erred in concluding that "the policy and the practice[,]" in these circumstances, prior to March 2002, was that each station processed the aliens that it had apprehended. Even if we were to assume that, on most occasions, aliens were processed by the apprehending office, the General Counsel has not established that this was the policy during unusual circumstances, such as that occasioned by an enormous across-the-board increase in alien apprehensions.

      In this connection, there is no evidence that the Respondent had previously faced the type of influx of aliens that occurred here and no evidence of a policy or past practice for responding to the type of situation with which the Respondent was presented in this case. As such, there is no basis on which to find that the Respondent had established a policy or past practice concerning a large influx of aliens from which it deviated. If anything can be said about a policy concerning a large influx of aliens, the record indicates that in the only instance when the Respondent was confronted with "a significant number" of a different category of foreign nationals who had entered the country illegally, "other stations would help us out". Tr. at 92.

      The Judge's repeated references to "huge numbers" of aliens and "substantial workload" that occurred in the Tucson Station starting in March, demonstrate that the Judge was concerned with the influx of aliens that, in the Judge's view, resulted in a greater workload for Tucson Station agents. However, as noted above, the increase was attributable to the increase in apprehensions. Even if we were to consider that increase to be attributable to the Respondent, we would find, based on our precedent, that dismissal of the complaint is warranted because there was no change in unit employees' conditions of employment.

      For example, in United States Dep't of Veterans Affairs, Med. Ctr., Sheridan, Wyo., 59 FLRA 93 (2003) (Chairman Cabaniss concurring), a particular unit of the respondent's medical facility increased the number and type of patients being treated. As reflected in the record of that case, the facility sought referrals of patients "from the other hospitals" within a larger geographic area. Id. at 98. The Authority found that nothing changed about "the type" of patients admitted to the unit and that although the increase in the number and acuity of patients demonstrated that the respondent "had more admissions of the type of patients it ha[d] historically admitted[,]" it did not establish that there was a change in the respondent's "admissions policy, practice, or standards concerning the acuity of patients admitted to [the unit]." Id. at 94.

      Similarly, in this case, the General Counsel's evidence and arguments support a finding that there was an increase in the number of aliens processed at Tucson Station. However, nothing in the record establishes that the Respondent changed the "type" of aliens that were being processed, the type of work that bargaining unit employees performed or, in any manner, the processing of alien apprehensions. As with the preceding case, the increase in the amount of work (i.e., individuals to be treated or processed) did not constitute a change in conditions of employment.

      Furthermore, we find that this case is similar to United States Dep't of the Air Force, Headquarters, 96th Air Base Wing, Eglin Air Force Base, Fla., 58 FLRA 626 (2003) (Chairman Cabaniss concurring) (Eglin), in which the Authority also dismissed a complaint. In Eglin, employees were assigned to perform duties on specific aircraft and worked on those aircraft unless called away to assist on other aircraft, which did not occur very often. The agency issued an instruction in which the employees were assigned to their aircraft only when workload and mission allowed. As more active duty personnel were assigned to that location, employees had more work on aircraft other than the one to which they were assigned. The Authority agreed with the judge that the instruction did not change the nature of the employees' assignments. Id. at 630. In that regard, the judge noted that the agency had an established practice of modifying work assignments in response to mission and workload fluctuations, and the fact that employees spent more time on assignments other than their assigned aircraft "was merely a variation of existing assignment practices[.]" Id. Similarly, here, the increase in workload was due to an increase in operational demands, not some change effected by the Respondent.

      In sum, Authority precedent leads to the conclusion that the Judge erred in finding that there was a [ v60 p175 ] change in conditions of employment giving rise to an obligation to bargain.

B.     The Judge erred in finding that the effect of the change was more than de minimis.

      Where a change in conditions of employment involves the exercise of a management right under § 7106 of the Statute, an agency is obligated to bargain over the impact and implementation of the change only where that change has more than a de minimis effect on conditions of employment. See, e.g., Pension Benefit Guaranty Corp., 59 FLRA 48, 50 (2003) (PBGC); Fairchild, 50 FLRA at 704. In assessing whether the effect of a change in conditions of employment is more than de minimis, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change. PBGC, 59 FLRA at 51.

      Even if we were to assume that the Respondent's action in this case constituted a change in unit employees' conditions of employment, we find that the Judge erred in concluding that the nature and extent of either the effect, or the reasonably foreseeable effect, of such a change was more than de minimis.

      In concluding that the effect of the change was more than de minimis, the Judge found that the change "affected the entire Tucson Station by imposing an enormous new workload on the Tucson Station" and cited INS San Diego in support. Judge's Decision at 6. In our view, the Judge's reliance on INS San Diego is misplaced. In that case, the Authority found that requiring employees to perform new duties, or old duties to the extent not performed in the past, had a foreseeable effect on employment and promotional opportunities, such that the change in conditions of employment had more than a de minimis effect.

      Here, agents were not assigned new duties, nor were they required to perform any duties not previously required of them. As found by the Judge, processing is one of the duties that all agents perform as part of their normal, rotational duties. It is undisputed that aliens are processed according to the same procedures, regardless of which station processes them. As described by the Judge, processing entails questioning, identifying, fingerprinting an apprehended alien. The agent must enter all of the information compiled about the alien into a computer program and the agent must also locate an existing A-file, or create a new one if none exists. It is undisputed that Tucson Station agents already performed these duties as a part of their job. For these reasons, we believe that this case does not involve the assignment of either new duties, or duties that were not previously performed.

      Furthermore, there is ample record evidence that the Respondent took measures to manage the additional processing workload. Id. For example, as found by the Judge, the Respondent agreed to the Union's request to recruit volunteers from other stations. The Respondent also brought in 30 agents each month from Nogales Station to augment the Tucson Station work force, "which, notwithstanding the additional processing workload, made five or six more [a]gents available for field duty[.]" Id. at 5-6. Also, when Tucson Station became overloaded, the Respondent required Casa Grande Station to process its own apprehensions or to transfer them to Nogales Station until the backlog was cleared. In our view, the dedication of additional resources to alleviate the increased workload, as well as actions taken to eliminate any backlog at Tucson Station, demonstrates that the Judge erred in finding that the effect of the change was more than de minimis.

      Finally, the Respondent asserts that the Judge erred in finding that overcrowding was an effect of the change, which created additional sanitary, safety and health concerns for agents. In our view, the sanitary, safety, and health concerns cited by the Judge are not new. Rather, exposure to disease, risk of assault by aliens, and other such risks are an inherent part of an agent's job. See, e.g., Tr. at 150-51 (an agent testified that "[i]t happens all the time where agents are assaulted by illegal aliens."); id. at 151 (the same agent responded "sure" when asked whether being a Border Patrol Agent is an inherently dangerous job). There has been nothing established in the record to justify the finding that the charges in these concerns were more than de minimis because of more aliens being processed at the Tucson Station. As such, the sanitary, safety and health risks cited by the Judge fail to demonstrate that the effect of the change was more than de minimis[n6]  [ v60 p176 ]

      Based on the foregoing, even assuming that the Respondent changed a condition of employment, we find that the Judge erred in concluding that the effect of the change was more than de minimis and would dismiss the complaint.

C.      The Judge erred in finding that the Respondent had a duty to bargain over details to Tucson Station.

      The Respondent excepts to the Judge's finding that the "use of the thirty [a]gents each month from Nogales was also a matter for [impact and implementation] bargaining." Judge's Decision at 6.

      There is no evidence in the record that the detail of agents from Nogales Station to Tucson Station each month was raised in the complaint, or that the matter was fully and fairly litigated at the hearing. Accordingly, we find that the Judge erred in addressing that issue. See, e.g., United States Customs Serv., S. Cent. Region, New Orleans Dist., New Orleans, La., 53 FLRA 789, 795-96 (1997) (Authority determined that judge erred in finding that agency violated the Statute by failing to furnish a lesser amount of information than was requested by union as furnishing of lesser amount of information was not fully and fairly litigated).

V.      Order

      The complaint is dismissed. [n7] 


Concurring Opinion of Chairman Cabaniss:

      I find that many of the conclusions ascribed by the dissent to the majority, as to whether the Respondent changed a condition of employment, do not withstand scrutiny. Record evidence establishes that, when dealing with significant workload increases (the relevant comparison, as opposed to looking at what took place during periods of normal workload levels), other stations would help out the Tucson station. Transcript at 92. I do not find the practice for what took place during normal levels of workload (which does appear to be that stations processed those individuals they apprehended) to be relevant, since I would find that having more work to do, i.e., apprehending more individuals (and thus having more individuals to process), is not in this instance a function of the Respondent having changed a condition of employment. For the General Counsel to prevail it would have to be established that the Respondent had a policy of always processing individuals apprehended at the normal station for that area, even when workload levels shot up dramatically. That has not been established by preponderant evidence, the standard which must be met by the General Counsel. Consequently, I find little merit or relevancy to the dissent's claims, i.e., that the majority opinion does not dispute either the definition of the past practice or the fact that the past practice has been changed (again, just what past practice is relevant?).

      I also note that the alleged inconsistency based upon the "no evidence" aspect of the dissent misses the point that, while there has indeed never been a similar type of influx of aliens as has occurred here (the comment ascribed to page 13 of the majority opinion), the majority opinion goes on to note that other significant workload increases (albeit of a different category of individuals needing to be processed) had occurred in the past, and at such times the stations helped each other out in processing that workload increase. For those reasons, then, I believe the majority opinion is correct.


File 1: Authority's Decision in 60 FLRA No. 40 and Opinion of Chairman Cabaniss
File 2: Opinion of Member Pope
File 3: ALJ's Decision


Footnote # 1 for 60 FLRA No. 40 - 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 60 FLRA No. 40 - Authority's Decision

   The complaint was amended at the hearing to allege that the violation occurred "[d]uring late March - early April 2002." Tr. at 17.


Footnote # 3 for 60 FLRA No. 40 - Authority's Decision

   At the hearing, a senior patrol agent estimated that there were 80 agents assigned to Casa Grande Station and about 130 agents assigned to Tucson Station. See Judge's Decision at 3 (citing Tr. at 27, 28). The Tucson Station PAIC testified that since April 2002, about 200 agents, including 30 agents from Nogales Station, were assigned to Tucson Station. See id. (citing Tr. at 169). While the Judge cited the testimony of both witnesses, he did not make any findings with regard to the discrepancy in their testimony. In addition, the record does not reflect how many agents were assigned to the other Stations in the Tucson Sector at any time.


Footnote # 4 for 60 FLRA No. 40 - Authority's Decision

   The Respondent also argues that "[t]he effectiveness and efficiency of the government is disrupted and the public's interest is harmed by" the Judge's finding that the Respondent violated § 7116(a)(1) and (5) of the Statute. Exceptions at 17.


Footnote # 5 for 60 FLRA No. 40 - Authority's Decision

   The GC asserts that the Respondent has failed to demonstrate any basis for its assertion that the Judge's finding that the Respondent violated the Statute disrupts the effectiveness and efficiency of the government and harms the public interest.


Footnote # 6 for 60 FLRA No. 40 - Authority's Decision

   We note that the GC did not except to the Judge's conclusion that the Respondent had no duty to bargain over the matter of overtime because "overtime is covered by the Agreement of the parties[.]" Judge's Decision at 6. Thus, even if the GC had established through record evidence that there was an increase in overtime for Tucson Station agents that was attributable to the transfer of some aliens to Tucson Station for processing (a matter that the Judge did not address and we need not resolve), the Judge's unexcepted-to determination that overtime was covered by the parties' agreement means that there was no duty to bargain over overtime. See, e.g., EEOC, Wash., D.C., 52 FLRA 459, 460 (1996), and cases cited therein, ("if a matter is contained in or covered by a collective bargaining agreement an agency may act unilaterally without providing any reason for so doing") (emphasis in original)).


Footnote # 7 for 60 FLRA No. 40 - Authority's Decision

   Having dismissed the complaint, we do not address the Respondent's rema