File 3: ALJ's Decision

[ v62 p253 ]


Office of Administrative Law Judges

DEPARTMENT OF HOMELAND SECURITY
BORDER AND TRANSPORTATION
SECURITY DIRECTORATE
U.S. CUSTOMS AND BORDER PROTECTION
EL PASO, TEXAS
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1929
Charging Party

Case Nos. DA-CA-04-0533
DA-CA-04-0576

Nora E. Hinojosa, Esquire
For the General Counsel

Christopher Ryan, Esquire
Robert H. Humphries, Esquire
For the Respondent

James A. Stack
For the Charging Party

Before: SUSAN E. JELEN
Administrative Law Judge

DECISION

Statement of the Case

      This is an unfair labor practice proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. §§7101-7135 (the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (the Authority), 5 C.F.R. Chapter XIV, Part 2423. The case was submitted in accordance with section 2423.26(a) of the Rules and Regula-tions, based on a waiver of a hearing and a stipulation of facts by the parties.

      On June 10, 2004, the American Federation of Government Employees, Local 1929 (Charging Party or Local 1929) filed an unfair labor practice charge in Case No. DA-CA-04-0533 against the Department of Homeland Security, Border and Transportation Security Directorate, U.S. Customs and Border Protection, El Paso, Texas (Respondent or Agency). On September 29, 2004, the Acting Regional Director of the Dallas Region of the Federal Labor Relations Authority (Authority) issued a Complaint and Notice of Hearing in which it was alleged that, on May 26, 2004, the Respondent held a formal discussion with a member of the bargaining unit represented by the Union. It was further alleged that the discussion concerned a grievance filed by the Charging Party and that the Respondent failed to allow the Union's chosen representative to attend the meeting. The Respondent therefore failed to comply with the section 7114(a)(2)(A) of the Federal Service Labor-Management Relations Statute (Statute) and thereby committed unfair labor practices in violation of section 7116(a)(1) and (8) of the Statute. [n1] 

      On July 16, 2004, the Charging Party filed an unfair labor practice charge in Case No. DA-CA-04-0576 against the Respondent. On October 29, 2004, the Regional Director of the Dallas Region of the Authority issued a Consolidated Complaint and Notice of Hearing in which it was alleged that, on June 14, 2004, the Respondent held a formal discussion with a member of the bargaining unit represented by the Union. It was further alleged that the discussion concerned a grievance filed by the Charging Party and that the Respondent failed to afford the Charging Party notice or the opportunity to attend the meeting. The Respondent therefore failed to comply with the section 7114(a)(2)(A) of the Statute and thereby committed unfair labor practices in violation of section 7116(a)(1) and (8) of the Statute.

      On October 15, 2004 and November 17, 2004, the Respondent filed its Answers to the respective complaints, in which it admitted certain allegations while denying the substantive allegations of the complaint.

      A hearing on these consolidated cases was originally scheduled for December 7, 2004, at a place to be determined in El Paso, Texas. The scheduled hearing was postponed until February 22, 2005 and then March 8, 2005, while the parties attempted to produce a stipulation of facts.

      On March 2, 2005, the Respondent, the Charging Party and the General Counsel entered into a Joint Stipulation of Undisputed Facts, pursuant to section 2423.26 of the Authority's Rules and Regulations. The parties agreed that the Charges, the Complaints and Notices of Hearing, Respondent's Answers, and all Pleadings and Orders in this matter (Jt. Exs. 1(a)-(z)), the Stipulation and its attached exhibits (Jt. Exs. 2-7), and the parties' post-stipulation briefs constitute the entire record in this case and that no oral testimony is necessary or desired [ v62 p254 ] by any party as no material issue of fact exists. Since the parties waived their right to a hearing before the Administrative Law Judge, no hearing has been held and this decision is based on the formal papers, the stipulation of facts and attached exhibits.

Findings of Fact

      The parties agreed to the following stipulation of facts:

1.     The Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Customs and Border Protection, El Paso, Texas (Respondent), is an Agency under 5 U.S.C. §7103(a)(3).
2.     The American Federation of Government Employees, AFL-CIO, National Border Patrol Council (Council) is a labor organization under 5 U.S.C. §7103(a)(4) and is the exclusive representative of a unit of employees appropriate for collective bargaining at Respondent.
3.     The American Federation of Government Employees, National Border Patrol Council, Local 1929 (Local 1929 or Charging Party) is an agent of the Council for the purpose of representing employees of Respondent within the unit described in paragraph 2.
4.     During the time period covered by the Stipulation, the persons listed below occupied the positions opposite their names:

File 1: Authority's Decision in 62 FLRA No. 49
File 2: Opinion of Chairman Cabaniss
File 3: ALJ's Decision


Footnote # 1 for 62 FLRA No. 49 - ALJ

   On January 18, 2005, the Counsel for the General Counsel filed a Motion to Amend Complaint in Case No. DA-CA-04-0533. The Respondent has not objected to the motion. Therefore, as the motion is consistent with the language of the parties' Stipulation, the General Counsel's Motion to Amend Complaint is hereby granted.


Footnote # 2 for 62 FLRA No. 49 - ALJ

   The parties stipulated that the May 26, 2004, meeting was called by Dixon, an agent of Respondent outside of Todd's supervisory hierarchy; the meeting was scheduled for the El Paso Sector Headquarters Conference Room; the meeting lasted approximately one hour; Todd was notified of the meeting by telephone from Maurer prior to the date of the meeting; and notes were made of Todd's answers to Maurer's and Dixon's questions. Dixon was a representative of the Chief Counsel's office and Maurer was present as a representative of the Labor Relations Office. During the meeting, Todd was asked questions related to the Lara Arbitration. (Stip. ¶¶15 and 16)


Footnote # 3 for 62 FLRA No. 49 - ALJ

   Section 7103(a)(10) states: "`supervisor' means an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment, .