File 2: Opinion of Member Pope
[ v60 p177 ]
Dissenting Opinion of Member Carol Waller Pope:
In rejecting the Judge's recommended decision and dismissing the complaint, the majority both misconstrues the law and ignores the record. For the reasons that follow, I would find that the record and the law support the Judge's recommended decision, and I would deny the exceptions.
The Judge found as follows:
The record shows without dispute that before March, 2002, a condition of employment had been that each [s]tation process the aliens it arrested. This was the policy and the practice. When, in March, 2002, [the] Chief of the Tucson Station (Tr. 171), directed that aliens apprehended by Casa Grande be transported to the Tucson Station for processing, Respondent changed a condition of employment of Tucson Station employees.
Judge's Decision at 5.
Substantial record evidence supports the Judge's finding that the prior policy was for aliens to be apprehended and processed in the same station. See Tr. at 42, 132 (testimony that aliens apprehended by one station normally are not transferred to another station for processing). Indeed, the Tucson Station Patrol Agent in Charge confirmed that agents are "assigned to process whatever apprehensions that they bring into the station." Tr. at 171. This testimony, in turn, is consistent with an e-mail from a Casa Grande Station supervisor acknowledging the Respondent's longtime practice of requiring each station to process aliens apprehended by that station. See id. at 144; GC Exh. 9.
The majority does not dispute either that the Respondent's prior policy was for a station to process aliens it apprehended or that the Respondent changed this policy during the period at issue. Nevertheless, the majority concludes that there was no change in conditions of employment. In so doing, the majority finds that: (1) affected employees' duties did not change; (2) there was no change in policy; and (3) Authority precedent supports a conclusion that there was no change.
There are fatal flaws in this reasoning. As set forth below, the first finding is based on a fundamental misconstruction of the law, the second concerns an issue not litigated in this case, and the third is simply wrong.
As for the first finding, the majority's conclusion that no change occurred because, in part, "there was no change to the type of duties that the Tucson Station agents were required to perform" is based on a misreading of the law. [n1] Majority Opinion at 13. In this connection, Authority precedent does not require a change in the type of duties performed. See United States Dep't of Veterans Affairs, Reg'l Ofc., San Diego, Cal., 44 FLRA 312, 336-37 (1992) (policy change affected conditions of employment even though the kind and percentage of work did not change). What is required is "a change in a policy or practice concerning unit employees' conditions of employment." United States Dep't of Veterans Affairs, Med. Ctr., Sheridan, Wyo., 59 FLRA 93, 94 (2003) (Chairman Cabaniss concurring) (V.A.). Here, there was such change.
As for the second, to escape the obvious conclusion that the Respondent changed its prior policy to have each station process aliens it apprehended, the majority employs the novel theory that the General Counsel did not establish that this "was the policy during unusual circumstances, such as that occasioned by an enormous across-the-board increase in alien apprehensions." Majority Opinion at 13.
There are several things wrong with the majority's theory. To begin, it is the majority's -- not the Respondent's. In this regard, the Respondent has never, directly or indirectly, defended its actions on the ground that there was no "unusual circumstances" policy. Respondent's position has, from the beginning, been that there was no change in conditions of employment because "processing aliens transferred from Casa Grande did not require [Tucson Station] employees to do something not previously required of them." Exceptions at 1. Thus, the majority manufactures a legal theory for the Respondent, leaving serious questions about the fairness of this proceeding to the General Counsel and the Charging Party.
In addition, the theory undermines the majority's ultimate conclusion that no change in conditions of employment occurred. In this regard, the majority asserts that there is "no evidence" that the Agency previously faced a work increase of the magnitude involved here and that there is "no evidence of a policy or past practice for responding to" this situation. Majority Opinion at 13. If this is true, then it follows -- through simple logic -- that the Respondent implemented a [ v60 p178 ] brand-new policy for addressing significant work increases. This would constitute a change in and of itself. See 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wa., 50 FLRA 701, 704 (1995) (new practice constituted change in conditions of employment whether it "supplanted or augmented" prior practice).
Finally, the majority's theory is internally inconsistent. In particular, the majority concludes both that there was no previous policy concerning a large influx of aliens and that:
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 . . . ."
Majority Opinion at 13 (citation omitted). That is, the majority finds that: (1) there was no "policy in unusual circumstances"; unless (2) there was such a policy. Not surprisingly, the Respondent prevails in either event. Id. [n2]
As for the majority's third finding, its reliance on both V.A. and United States Dep't of the Air Force, Hdqtrs., 96th Air Base Wing, Eglin, AFB, Fla., 58 FLRA 626 (2003) (Chairman Cabaniss concurring) (Eglin) is misplaced. With regard to V.A., the complaint alleged that the respondent improperly changed its policy regarding the acuity of patients admitted to a particular work unit. In dismissing the complaint, the Authority concluded that "the fact that there were more acute patients admitted" did not establish that the respondent "made a change in its . . . policy." 59 FLRA at 94. Here, on the other hand, the Judge found, and the record supports, that with very few exceptions the Respondent's policy before March 2002 was for stations, including the Casa Grande Station, to process aliens it apprehended and after that, Casa Grande aliens were transferred to the Tucson Station. Thus, the Respondent changed its policy. With regard to Eglin, the judge found that the respondent had an established practice, which it followed, in taking an action over which the charging party sought to bargain. Here, the Judge determined that the Respondent took action inconsistent with its established policy and, as stated above, that finding is amply supported by the record.
Consistent with the foregoing, I would adopt the Judge's finding that the Respondent's policy was to require each station to process aliens it apprehended. There is no dispute that this policy concerns employees' conditions of employment. There also is no dispute that, beginning in late March 2002, the Respondent began transferring aliens apprehended by the Casa Grande Station to the Tucson Station. See, e.g., Tr. at 174 (Tucson Station Patrol Agent in Charge testified that subsequent to March 2002, the Tucson Station processed "the vast majority" of aliens apprehended by the Casa Grande Station). By this action, the Respondent changed its policy concerning processing aliens and, thereby, changed unit employees' conditions of employment. As a result, if the effect of the change was more than de minimis, then the Respondent was required to bargain.
I would find, in agreement with the Judge and for the reasons stated by the Judge, that the effect of the Respondent's change in policy was more than de minimis. For the reasons that follow, I believe that the majority seriously mischaracterizes the record in concluding (in an alternative finding) to the contrary.
At this juncture, it is important to note the numbers. During the period April through September 2002, the Tucson Station apprehended 8,000 more aliens than it had during the previous 6-month period. During that same time, Tucson received over 19,000 aliens from Casa Grande as a result of the change in Respondent's policy, more than twice the number it would have received otherwise. As the Judge found, this was "an ongoing transfer of a very substantial workload." Judge's Decision at 5.
Not surprisingly, undisputed evidence demonstrates that the change in policy had more than a de minimis effect on unit employees' conditions of employment. In this connection, the Judge's finding that "the magnitude of the processing work imposed on the Tucson Station was more than de minimis" is supported by precedent. Judge's Decision at 6. See United States Dep't of Justice, INS, United States Border Patrol, San Diego Sector, San Diego, Cal., 35 FLRA 1039 (1990) (requiring employees to perform old duties [ v60 p179 ] to an extent not performed previously had more than de minimis effect on conditions of employment) (INS, San Diego). [n3]
In addition, the Judge's findings that, as a result of the increased workload, the facilities at the Tucson Station were "overload[ed] . . . on a regular basis[,]" thus "creat[ing] sanitary concerns, safety concerns and health concerns both for detainees and for employees exposed to it" are supported by the record. Judge's Decision at 6. In this regard, several witnesses testified that the Tucson Station facilities were overcrowded as a result of the large number of aliens being processed there, which resulted in safety and health concerns. See Tr. at 54-55, 70, 94-95, 137-38, 150-51. One witness testified that many aliens had hepatitis and tuberculosis and that the ventilation in the facility was inadequate. Tr. at 137-38. Another witness testified that due to overcrowding, aliens often would urinate and defecate in the holding cells and outside. See id. at 70. Finally, there was ample testimony that overcrowding a facility with poor ventilation increases the risk of spreading communicable diseases. See id. at 94-5, 150.
There is nothing in the record contradicting this evidence. In fact, even the Respondent acknowledges the "inherent . . . danger" and "potential for contraction of communicable diseases" and "violent uprisings" associated with processing duties. Exceptions at 11. Nevertheless, the majority casually disregards this undisputed evidence with the observation that concerns about sanitation, safety, and health are "not new." Majority Opinion at 17. This defies all reason. Not only the unchallenged evidence but also common sense dictates that overcrowding increases sanitation, health, and safety concerns. The majority's decision on this point strains credulity.
Finally, the majority places great stock in the fact that, after the Respondent changed its policy regarding transferring aliens from Casa Grande to Tucson, "the Respondent took measures to manage the additional processing workload." Majority Opinion at 16. This is improper, in my view, for two reasons. First, it excuses the Respondent's failure to satisfy its bilateral, bargaining responsibilities based on its unilateral actions. Second, the fact that the Respondent needed to mitigate the consequences of the change in policy confirms that the effect of that change was more than de minimis.
Consistent with the foregoing, the Respondent was obligated to bargain over the impact and implementation of its policy change. The Respondent failed to do so and thereby violated the Statute. In this connection, I would reject as unsupported the Respondent's claim that finding a violation in these circumstances disrupts an effective and efficient Government and harms the public interest. See Exceptions at 17. Quite to the contrary, the Statute establishes conclusively that collective bargaining as required by the Statute safeguards the public interest and contributes to an effective and efficient Government. See 5 U.S.C. § 7101(a).
In sum, for the reasons set forth above, I would deny the Respondent's exceptions and adopt the Judge's decision and recommended Order. [n4] Therefore, I dissent.
File 1: Authority's Decision in 60 FLRA No. 40 Authority's Decision
File 2: Opinion of Member Pope
File 3: ALJ's Decision
Footnote # 1 for 60 FLRA No. 40 - Opinion of Member Pope
The majority also bases its conclusion, in part, on the fact that apprehensions increased across-the-board. This demonstrates the majority's confusion over what change was litigated. The change alleged and found by the Judge was in the Respondent's policy regarding the transfer of aliens from one station to another. See Complaint ¶ 11, G.C. Exh. 1(c). The number of apprehensions is irrelevant to determining whether such change occurred.
Footnote # 2 for 60 FLRA No. 40 - Opinion of Member Pope
The majority cites nothing supporting its implied conclusion that no change occurred if a similar action was taken sometime in the past. This may be because the law is squarely to the contrary. See Dep't of the Treasury, United States Customs Serv., Region IV, Miami, Fla., 19 FLRA 304, 310-11 (1985) (finding change in condition of employment where agency previously had modified holiday schedules in limited circumstances, but never routinely did so). Here, the record shows that the Respondent previously had transferred only certain aliens to Tucson and only in "real extreme circumstances" not present here. Tr. at 92; 132. The claim in the concurrence -- that the GC was required to establish that the Respondent had a policy that a station "always" processed aliens it apprehended -- similarly ignores this precedent and, as a result, is plainly wrong. Concurrence at 1.
Footnote # 3 for 60 FLRA No. 40 - Opinion of Member Pope
As the majority acknowledges, in INS, San Diego, the Authority "found that requiring employees to perform new duties, or old duties to the extent not performed in the past," had an effect on conditions of employment that was more than de minimis. Majority Opinion at 16 (emphasis added). Thus, contrary to the majority, INS, San Diego supports a conclusion that there was a change in this case whether or not affected employees performed new duties.
Footnote # 4 for 60 FLRA No. 40 - Opinion of Member Pope