[ v23 p90 ]
23:0090(10)CA
The decision of the Authority follows:
23 FLRA No. 10
DEPARTMENT OF JUSTICE
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
UNITED STATES BORDER PATROL
LAREDO, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL BORDER PATROL
COUNCIL, AFL-CIO, LOCAL 2455
Charging Party
Case No. 6-CA-30309
DECISION AND ORDER
I. Statement of the Case
This case is before the Authority based on exceptions to the attached
Administrative Law Judge's Decision filed by the General Counsel and the
American Federation of Government Employees, National Border Patrol
Council, AFL-CIO, Local 2455 (the Union). An opposition to these
exceptions was filed by the Respondent. The complaint, as amended,
basically alleged two things: the Respondent violated section
7116(a)(1) and (5) of the Statute by failing to notify the Union and
refusing to bargain over the procedures to be observed in implementing
revisions in shift and rotation schedules and appropriate arrangements
for employees adversely affected by such changes; and the Respondent
violated section 7116(a)(1) and (5) of the Statute by refusing to
maintain the existing shift and rotation schedules to the maximum extent
possible during the pendency of a question concerning representation
(QCR).
II. Background
The facts are fully set out in the Judge's Decision. Briefly, they
indicate that during the time the events in this case occurred, a
question was pending concerning representation of, among others,
employees located at the Respondent's Laredo Station.
In April 1983, the Union learned that the Respondent was planning a
change in the shift and rotation schedules for employees of the Laredo
Station. The Union filed a grievance based on management's failure to
provide it with views on the matter. The parties met, also in April, at
which time various elements of the proposed change were discussed. The
Union then requested bargaining, which request was denied and the new
schedule was implemented in May. Another shift and rotation change was
implemented the following September. The Union received notification
prior to this change but did not request bargaining.
III. Judge's Decision
The Judge recommended dismissal of the amended complaint in its
entirety. As to the failure to maintain existing conditions of
employment during the QCR, the Judge cited the Authority's decision in
United States Department of Justice, United States Immigration and
Naturalization Service, 9 FLRA 253 (1982), in which we determined that
agency management is required to maintain existing conditions of
employment, to the maximum extent possible, during the pendency of a QCR
unless changes in those conditions of employment are required consistent
with the necessary functions of the agency. The United States Court of
Appeals for the Fifth Circuit, on appeal, reversed certain of the
Authority's unfair labor practice findings on the basis that the
particular changes in that case involved the exercise of management's
rights under the Statute, but stated that its decision "should not be
read as invalidating the rule." United States Department of Justice,
United States Immigration and Naturalization Service v. FLRA, 727 F.2d
481, 489 (5th Cir. 1984). Here, the Judge applied this rule to the
particular circumstances of the case and found that the changes in shift
rotation schedules were required consistent with the necessary
functioning of the agency and, also, were matters covered by section
7106(b)(1) of the Statute. /1/ The Judge concluded, therefore, that
there was no obligation to bargain over the substance of the changes.
As to the other allegation of the complaint involving a refusal to
bargain over procedures and appropriate arrangements of changes in the
shift and rotation schedules, the Judge found that section 7116(d) of
the Statute /2/ barred processing of the unfair labor practice
allegation concerning one of the changes and that the Union had failed
to request bargaining over the other change.
IV. Positions of the Parties
The General Counsel excepted to a number of findings and conclusions
of the Judge, specifically, the following: that the April meeting
between the Respondent and the Union was a grievance meeting; that the
grievance covered the May shift and rotation schedule changes; that the
Union was given timely notice of the September change; and that section
7116(d) of the Statute bars processing of the unfair labor practice
allegation concerning the May shift and rotation schedule changes.
Rather, the General Counsel argues that the Respondent unlawfully
refused to bargain over the impact and implementation of the May and
September shift changes. Further, the General Counsel asserts that the
changes were not consistent with the necessary functioning of the agency
so that their implementation during the pendency of a QCR violated
section 7116(a)(1) and (5) of the Statute.
The Union excepted to the Judge's finding that the Union was given
reasonable notice of the changes, arguing that the Respondent breached
the parties' contractural requirement that at least 10 days notice be
given. The Union also argued that the subject of shift changes was
within the duty to bargain. Finally, the Union expressed its
disagreement with the Court's decision in Immigration and Naturalization
Service v. FLRA.
The Respondent generally opposed the exceptions of the General
Counsel and the Union. The Respondent also made certain arguments it
wished the Authority to consider in the event the Judge's findings and
conclusions were reversed.
V. Analysis
We find, as did the Judge, that the changes in the shift and rotation
schedules which involved the exercise of management's section 7106(b)(1)
rights were necessary for the Respondent to perform its mission; that
is, the changes were consistent with the necessary functioning of the
agency. As noted by the Judge in his Decision, the Respondent is
engaged in law enforcement activities. The changes made were deemed
necessary "to permit the Laredo Station to effectively police the border
and to perform its duties most effectively." Therefore, the Respondent's
conduct in making these particular changes during the pendency of a
question concerning representation was not violative of section
7116(a)(1) and (5) of the Statute.
We also adopt the Judge's finding that no violation of the Statute
occurred with respect to the Respondent's alleged failure to bargain
over the procedures to be observed in implementing the changes as well
as on appropriate arrangements for employees adversely affected by such
changes. As to the change in shift and rotation schedules that were
implemented in May, we find that section 7116(d) of the Statute bars
processing of this portion of the complaint. Record evidence indicates
that a grievance was filed and processed with regard to this change.
Therefore, the Union selected the procedure it wished to pursue and
processing of the same issue as an unfair labor practice is precluded.
/3/
Finally, as to the change in shift and rotation schedules implemented
in September, we find, as did the Judge, that the Union never requested
bargaining after having received notice of the change. Therefore, the
Respondent did not unlawfully refuse to bargain. U.S. Department of
Treasury, Internal Revenue Service, Philadelphia Service Center, 16 FLRA
749 (1984); General Services Administration, 15 FLRA 22 (1984).
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision and the entire record in this case, and adopts the
Judge's findings, conclusions and recommended Order. The Authority
therefore concludes that the complaint must be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 6-CA-30309 be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 12, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 6-CA-30309
UNITED STATES DEPARTMENT OF JUSTICE IMMIGRATION
AND NATURALIZATION SERVICE, UNITED STATES BORDER
PATROL SECTOR, LAREDO, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
NATIONAL BORDER PATROL COUNCIL, AFL-CIO, Local 2455
Charging Party
Shirley A. Epperson
Dennis L. Elkberg
For Respondent
James P. Jones
For Charging Party
Elizabeth Martinez
For General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101 et seq., 92 Stat. 1191, (hereinafter referred to as the
Statute), and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410, et seq.
An unfair labor practice charge was filed on July 7, 1983 by Local
2455 American Federation of Government Employees, National Border Patril
Council, AFL-CIO /4/ alleging that U.S. Immigration and Naturalization
Service, U.S. Border Patrol (hereinafter called Respondent or Border
Patrol) violated Sections 7116(a)(1) and (5) of the Statute. Based upon
the foregoing on October 6, 1983 the General Counsel of the FLRA, by the
Director of Region 6, issued a Complaint and Notice of hearing.
Respondent filed a timely Answer denying that it had violated the
Statute.
A hearing was held before the undersigned in Laredo, Texas.
Respondent, Charging Party and General Counsel of the FLRA were
represented and afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence and to argue orally.
Post hearing briefs were filed and have been fully considered.
Based upon the entire record in this matter, /5/ my observation of
the witnesses and their demeanor, and from my evaluation of the
evidence, I make the following:
Findings of Fact
At all times material the Council has been the exclusive collective
bargaining representative for a unit of Respondent's employees that
includes those assigned to the Laredo Border Patrol Station. The
Council and the United States Immigration and Naturalization Service
(hereinafter called INS) were parties to a collective bargaining
agreement, covering the afforedescribed unit, which expired on September
30, 1978. On January 19, 1978 the International Brotherhood of Police
Officers (IBPO) files a representation petition with the FLRA and an
election was conducted. The Council filed timely objections and the
FLRA issued a decision in which the objections were sustained and a
second election ordered. The FLRA was sustained by the Fifth Circuit
Court of Appeals. United States Department of Justice, United States
Immigration and Naturalization Service, 9 FLRA 253 (1982) affirm'd sub
nom. United States Department of Justice, United States Immigration and
Naturalization Service v. FLRA, 727 F.2d 481 (5th Cir., March 19, 1984).
During the period the above described representation case was pending,
the Council continued to represent Respondent's employees and the
parties continued to give effect and operate under the terms of the
collective bargaining agreement.
The INS is divided into regions, one of which is the Southern Region,
which are in turn divided into sectors which are in turn divided into
stations. One of the sectors of the Southern Region is the Laredo
Sector which contains the Laredo Station, among other stations.
Approximately sixty-seven bargaining unit employees were employed at the
Laredo Station during 1983. At all material times, William Selzer held
the position of Chief Patrol Agent (CPA) of the Laredo Sector and Miguel
Vallina occupied the position of Assistant Chief Patrol Agent (ACPA).
Joe Trevino held the position of Patrol Agent In Charge (PAIC) of the
Laredo Station and James Fulgham was the Assistant Patrol Agent In
Charge (APAIC).
The Council had a president and five vice-presidents. The
vice-presidents had responsibility at the regional level. Below the
regional level, there are local presidents that had responsibility at
the sector level. At all times material herein, Benito Lopez was the
President of AFGE Local 2455, which covers the Laredo Sector.
On April 20, 1983 AFGE Local 2455 President Lopez asked PAIC Trevino
whether rumors which were circulating concerning a change in the shift
schedules were accurate. Trevino stated that on May 1, 1983 the shifts
would in fact be rolled back two hours. /6/ Lopez noted that the union
had not received prior official notice of the proposed change and that
there was insufficient time prior to the implementation date of May 1
for the union to submit proposals. Trevino stated that the change would
go into effect on May 1, 1983.
On April 21, 1983 AFGE Local 2455 filed a grievance under the
collective bargaining agreement concerning management's failure to
provide the union with timely written notice of the proposed changes and
to allow the union to present its views on the matter. /7/ AFGE Local
2455's grievance stated:
In accordance with Article 32-Grievance Procedure in the
negotiated agreement between the American Federation of Government
Employees National Border Patrol Council and the U.S. Immigration
and Naturalization Service, I hereby submit this formal grievance
on behalf of all union members and all Border Patrol Agents in the
Laredo Station.
On April 20, 1983 PAIC Joe Trevino, of the Laredo Station,
advised me, upon my request, that all Border Patrol Agents in the
Laredo Station would be divided into eight (8) units of squads
headed by one supervisor. PAIC Trevino also advised me that all
the shifts would be rolled back two (2) hours. The new Shifts
would be from 6A-2P, 2P-10P, 10P-6A, 9P-5A. Implementation, as
stated by PAIC Trevino, would be on May 1, 1983.
PAIC Joe Trevino has violated Article 3 section G of the
negotiated agreement between the American Federation of Government
Employees National Border Patrol Council and the U.S. Immigration
and and Naturalization Service. Violations are that PAIC Trevino
failed to notify in writing, The Union, of proposed changes in
personnel policies, practices, or working conditions and that PAIC
Trevino violated the same article by not allowing The Union, to
present its views to the proposed change or its impact.
On April 22, 1983 Trevino and ACPA Vallina informed Lopez that they
had reconsidered their decision to implement the change on May 1, 1983,
and that there would be a meeting between management and the union on
April 29, 1983, at 1 p.m. in Vallina's office to discuss the matter.
During the afternoon of April 22, 1983, CPA Selzer gave the same
information to Lopez. In addition, Selzer informed Lopez that since
management did not intemd to implement the change on May 1, he
considered the grievance to be moot and did not intend to issue a
written response to the grievance as is required by Article 32, Section
E of the contract. /5/
On April 29, 1983 a meeting was held between Respondent and AFGE
Local 2455, as scheduled. Present for AFGE Local 2455 were Lopez, AFGE
Local 2455 Treasurer Joe Bradley, and Conrado Villanueva. Present for
Respondent were Vallina, Trevino, and Fulgham. This was a meeting held
to discuss the grievance pursuant to provisions of Article 32E, Step II
of the collective bargaining agreement. Vallina stated that Respondent
intended to begin operating on an eight shift system as opposed to the
four shift operation that existed at the time. Vallina further stated
that employees would be selected for the various shifts under a draft
system comparable to that used in professional football. AFGE Local
2455 requested more specific details concerning the draft system and the
implementation of the change, but Respondent responded that the details
of the plan had not yet been finalized. At the meeting on April 29,
1983 AFGE Local 2455 was not advised of the details such as the hours of
the various shifts, the exact way the draft would work and the names of
employees assigned to these shifts. At the close of the meeting, the
Union requested a written copy of the proposed shift change. Vallina
informed Lopez that the Selzer had denied the request for a written copy
without specifying any reason for the denial.
By letter dated May 9, 1983 AFGE Local 2455 set forth examples of
adverse impact of the changes and requested to bargain concerning the
proposed changes. By letter dated May 16, 1983 Selzer denied the
bargaining request and stated the new shifts would be implemented. The
new shift schedule was implemented on May 29, 1983.
A few days before the implementation date, Lopez found a copy of the
new schedule marked "union" and a blank scheduling form in his mailbox.
Lopez did not know who had put them there. According to the schedule,
the hours of the shifts in the actual order of rotation were as follows:
12:00 a.m.-8:00 a.m., 5:00 p.m.-1:00 a.m., 10:00 p.m.-6:00 a.m., 4:00
p.m.-12:00 a.m., 2:00 p.m.-10:00 p.m., 6:00 a.m.-2 p.m. (signcutting),
/9/ 6:00 a.m.-2:00 p.m. (regular day shift), and 8:00 a.m.-4:00 p.m.
Because border patrol agents would rotate to a new shift every two
weeks, under this new shift and rotation schedule agents were assigned
to work ten weeks of consecutive night shifts. Under the prior
four-shift system, employees worked six weeks of consecutive night
shifts. The change to the eight-shift system might reasonably
foreseeably have an adverse impact upon the health and personal
situations of bargaining unit employees. Specifically, it might
reasonably be anticipated that the increase in night shift assignments
would cause employees to become fatigued and irritable, thereby
decreasing their reaction time in critical situations and increasing
their usage of sick leave. Further, the excessive night-shift work
might reasonably create serious conflicts in employees' marital and
family relationships. In addition, the reduced size of shifts might
reasonably foreseeably cause hardships for employees who needed
particular days off each week to attend college classes. /10/ The new
system might reasonably be foreseen to adversely affect employees who
had been actively involved in religious, civic, and social functions.
On or about August 27 or 28, 1983, Lopez found a copy of a routing
slip dated August 26, 1983 in his mailbox which was addressed to all
supervisors from APAIC Fulgham. The slip stated that effective
September 4, 1983 the shift and rotation schedule would be further
revised. Pursuant to this revision, the new shifts in the proper order
of rotation were listed as follows: 11:00 p.m.-7:00 a.m., 3:00
p.m.-11:00 p.m., 4:00 p.m.-12:00 a.m. or 5:00 p.m.-1:00 a.m., 7:00
a.m.-3:00 p.m. and 6:00 a.m.-2:00 p.m. (signcutting shift). Thus, this
new five-shift schedule changed the former eight-shift schedule by
eliminating the following three shifts: (1) 10:00 p.m.-6:00 a.m., (2)
2:00 p.m.-10:00 p.m., and (3) 6:00 a.m.-2:00 p.m. (regular day shift).
Under this system, employees were assigned to work six weeks of
consecutive night shifts and four weeks of day shifts. The new schedule
was in fact implemented on September 4, 1983. Lopez testified that the
slip had been put in his box sometime when he was on leave and that he
did not discover it until on or about August 27 or 28, 1983. AFGE Local
2455 did not request to bargain and no bargaining occurred over the
shift and rotation change that was implemented on September 4, 1983.
The record establishes that, prior to the May 29, 1983 and September
4, 1983 shift changes, Respondent had made changes and adjustments in
shifts, including the establishment and removal of specific shifts
(commando, train, etc.). However none of the previous changes or
adjustments were of the magnitude nor so all affecting as the changes
that are subjects of the instant case.
The May 29, 1983 and September 4, 1983 shift changes were made by
Respondent, pursuant to the best available intelligence, in order in its
view, to intercept illegal aliens as effectively as possible.
Article 28 of the Collective bargaining agreement provides:
ARTICLE 28 - Tours of Duty (Border Patrol Council)
A. The parties of this agreement recognize that the Agency
must, to carry out its mission, vary tours of duty. In the
interest of good employee morale, it is agreed that changes in an
employee's scheduled hours of duty shall be kept to the minimum
necessary to accomplish the mission of the Agency.
B. Assignment to tours of duty shall be posted five days in
advance in the appropriate work area covering at least a two week
period.
C. Except in an emergency, the Agency agrees to schedule eight
(8) hours between changes in shifts, and when practical will
schedule more time between shifts.
D. Any employee may retain a carbon copy of his DJ-296 and/or
Form I-50 if he so desires.
E. The Agency agrees that maximum effort will be made to
assign consecutive days off duty.
F. The administrative workweek shall be seven consecutive
days, Sunday through Saturday.
G. Breaks in working hours of more than one hour shall not
normally be scheduled in any basic workday.
H. When practical, an employee shall be given 24 hours advance
notice of individual shift changes. Exceptions to this provision
may be made where there is mutual agreement between the employees
and supervisors involved. Individuals involved in a change of
tour should be notified of the reasons for the change.
I. Where mutually agreeable to all employees affected
employees may trade shifts out of the normal rotation consistent
with the needs of the Service.
Discussion and Conclusions of Law
General Counsel of the FLRA alleges that Respondent violated Sections
7116(a)(1) and (5) of the Statute by implementing revisions and changes
in shift and rotation schedules at the Laredo Border Patrol Station on
May 29, 1983 and on September 4, 1983 without providing AFGE Local 2455
proper notice and without bargaining concerning the revisions and
changes and without bargaining over the procedures to be observed in
implementing the changes and appropriate arrangements for adversely
affected employees. /11/
The General Counsel of FLRA recognizes that the establishment of a
shift or tour of duty involves the "numbers, types and grades of
employees or positions assigned to any organizational subdivision, work
project or tour of duty" within the meaning of Section 7106(b)(1) of the
Statute and is therefore negotiable only at the discretion of the
agency. U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA
116 (1982). Thus it is recognized by the General Counsel of the FLRA
that, absent more, the Border Patrol was not obliged to bargain
concerning the substance of the substantial and far reaching shift
changes made on May 29, 1983 and September 4, 1983. /12/ General
Counsel of the FLRA contends that Respondent violated Sections
7116(a)(1) and (5) of the Statute by making unilateral changes in shift
and rotation schedules of employees at the Laredo Station during the
pending of a representation case, which changes were not "required
consistent with the necessary functioning of the Agency." United States
Department of Justice, United States Immigration and Naturalization
Service, 9 FLRA 253 (1982) enforcement denied sub nom. United States
Department of Justice, United States Immigration and Naturalization
Service v. FLRA, 727 F.2d 481 (5th Cir., March 19, 1984). In this case,
involving the same parties as in the subject case, the FLRA held that
during the pendency of the question concerning representation Respondent
was obligated to maintain existing conditions of employment, except
Respondent could make such changes as were required consistent with the
necessary functioning of the agency. In that case the changes
implemented concerned traffic check points and uniforms and the
Administrative Law Judge concluded that the reasons for the changes were
of long-standing origin and were merely desirable, rather than essential
or necessary to the functioning of the agency, and further were made
during the election period because management felt the election turmoil
could weaken the union's response to the changes. /13/ The Court of
Appeals concluded that the changes made by the agency were management
rights covered by Section 7106 of the Statute and that the pendency of
the representation case did not negate management's right to make the
changes.
In the subject case I am constrained to follow the holdings of the
FLRA /14/ and in so doing I conclude that, in the subject case, the
shift and schedule changes made by Respondent were "required consistent
with the necessary functioning of the agency." In so concluding I rely
on the facts that the Border Patrol is engaged law enforcement
entrusted, inter alia, with intercepting illegal aliens attempting to
cross our national borders.
In the judgment of the Border Patrol the shift changes made in the
subject case were perceived by Respondent as necessary in order to
permit the Laredo Station to effectively police the border and to
perform its duties most effectively. They were not just desirable
changes, they were changes deemed necessary by Respondent's officials,
based on the best intelligence available, to effectively stop the
maximum number of illegal aliens. Thus, noting also the period of time
during which the representation case was pending, it is concluded that
the shift changes made on May 29 and September 4 were consistent with
the necessary functioning of the Border Patrol as reasonably perceived
by Respondent's officials. Further since the changes were, as discussed
above, covered by Section 7106(b)(1) of the Statute, Respondent was not
obligated to negotiate with the Council concerning the substance of the
changes. Therefore Respondent's failure to bargain concerning the
substance of the shift and schedule changes did not violate Sections
7116(a)(1) and (5) of the Statute.
Respondent defended its failure to negotiate concerning the substance
of the scheduling changes on the grounds that the Council waived its
right to negotiate concerning the schedule change by Article 28 of the
collective bargaining agreement and that Section 7116(d) barred
processing the complaint because a grievance was filed that allegedly
covered the same issues. Because of the foregoing conclusions, I need
not reach any conclusions with respect to these defenses. /15/
Even though, as concluded above, Border Patrol was privileged, under
Section 7106(b)(1) of the Statute, to refuse to bargain about the
institution of the schedule changes, it nevertheless was obligated,
pursuant to Section 7106(b)(2) and (3) of the Statute, to bargain over
the impact and implementation of such changes. U.S. Customs Service,
Region V, New Orleans, Louisiana, supra.
In the subject case, with respect to the May 29 changes, the Council
raised the issue of these changes as part of the grievance and not only
would that grievance reasonably have included the impact and
implementation of the change, but at the April 29 meeting the Council
specifically raised the adverse impact of the proposed changes.
Accordingly it is concluded that, because the May 29 changes and their
impact and implementation were issues raised in the grievance, Section
7116(d) of the Statute bars the findings of any unfair labor practice
with respect to the issues raised in the grievance.
The General Counsel of the FLRA alleges, additionally, that Border
Patrol failed and refused to bargain about the impact and implementation
of the September 4 schedule changes. Respondent routed a notification
of these changes to AFGE Local 2455 President Lopez. The routing slip
was dated August 26, 1983 and Lopez' testimony as to when he actually
received it is unclear; he apparently received it on August 27 or
August 28, 1983. /16/ Thus the notice was given and received some seven
days before the anticipated changes. There is no showing that this
notice was not given sufficiently in advance of the September 4 schedule
change so as to permit the union to request to bargain and to bargain
about the impact and implementation of the changes. See Department of
the Interior, U.S. Geological Survey, Conservation Division, Gulf of
Mexico Region, Metairie, Louisiana, 9 FLRA 543 (1982). The Council
after the timely notification was given did not request to bargain about
the September 4 changes /17/ and accordingly I find Respondent did not
refuse to bargain about the impact and implementation of the September
4, 1983 changes. /18/
In light of all of the foregoing I conclude that Respondent did not
refuse to bargain with the Council concerning the May 29 and September
4, 1983 schedule changes or about the impact and implementation of the
changes and therefore did not violate Sections 7116(a)(1) and (5) of the
Statute. Accordingly, I recommend that the FLRA issue the following:
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 6-CA-30309 be,
and it hereby is, dismissed.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: February 20, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Section 7106(b)(1) of the Statute provides:
Section 7106. Management rights
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating --
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work(.)
(2) Section 7116(d) of the Statute provides, in relevant part:
(I)ssues which can be raised under a grievance procedure may,
in the discretion of the aggrieved party, be raised under the
grievance procedure or as an unfair labor practice under this
section, but not under both procedures.
(3) Compare Department of the Air Force, Headquarters, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA No. 17
(1985) and Department of Justice, Bureau of Prisons, Federal
Correctional Institution, Butner, North Carolina, 18 FLRA NO. 100
(1985).
(4) American Federation of Government Employees will hereinafter be
referred to as AFGE, and the National Border Patrol Council will
hereinafter be referred to as the Council.
(5) The General Counsel of the FLRA's unopposed Motion to Correct the
Official Transcript is hereby granted.
(6) At that time, the four established shifts were as follows: 8:00
a.m.-4:00 p.m., 4:00 p.m.-12:00 a.m., 12:00 a.m.-8:00 a.m., and a
variable shift from 6:00 p.m.-2:00 p.m.
(7) Article 36 of the collective bargaining agreement provides that
the union will be provided 30 calendar days to present its views on
proposed changes. In a memorandum of understanding between the Council
and INS, dated June 10, 1977, the parties agreed that the local union
would be allowed 15 days to submit proposals on changes made at the
district and sector levels.
(8) Lopez' undenied testimony on this point was that he concurred
with Chief Selzer and considered the grievance dropped. Respondent did
not call Chief Selzer as a witness at the hearing. Accordingly, Lopez'
testimony as to this conversation is fully credited.
(9) "Signcutting" involves searching outlying areas for signs or
trails of illegal aliens and tracking them down.
(10) In this regard, the record established that the Respondent has,
for years, encouraged employees to obtain college degrees and to
otherwise further their education. Prior to the implementation of the
eight-shift system, employees had no problems obtaining particular days
off to attend college classes. However, after the change, there might
foreseeably be an increased difficulty in obtaining requested days off;
the burden was placed on these employees to find other agents who were
willing to trade shifts and this might be more difficult under the new
schedule and thus might interfere with the employees' ability to obtain
days off when classes were scheduled.
(11) The Complaint and Notice of Hearing alleged the violations of
Sections 7116(a)(1) and (5) of the Statute with respect to the failure
to bargain about the implementation and impact of the changes. The
Complaint was amended at the hearing to allege that the Statute was also
violated by Respondent's alleged refusal to bargain concerning the
substance of the changes.
(12) It is concluded that the shift changes made on May 29 and
September 4, 1983 were so fundamental and basic that they more closely
resemble the creation of a new shift than merely the changing the time
an existing shift starts and ends. See U.S. Customs Service, Region V,
New Orleans, Louisiana, supra. For example on May 29 when eight shifts
were substituted for four shifts it is difficult, if not impossible, to
determine which of the eight shifts were new and which were the prior
four with merely changed starting and finishing hours. It is noted,
that such a distinction was recognized by the FLRA in U.S. Customs
Service, Region V, New Orleans, Louisiana, supra.
(13) See United States Department of Justice, United States
Immigration and Naturalization Service, supra at 286.
(14) See also Immigration and Naturalization Service, 16 FLRA 80
(1984), Immigration Naturalization Service, 16 FLRA 88 (1984).
(15) In the event the FLRA concludes my prior disposition of the
issue of Respondent's alleged failure to bargain concerning the
substance of the schedule changes, in an error, I would reject
Respondent's contention that Article 28 of the collective bargaining
agreement constituted a waiver by the Council of its rights to negotiate
concerning the schedule change, but I would agree that Section 7116(d)
of the Statute bars the finding of any violation with respect to the May
29, 1983 changes, but not with respect to the September 4, 1983 changes.
The conclusions with respect to the contract waiver is based on the
FLRA's decisions holding that the waiver of a statutory right must be "a
clear and unmistakable waiver of bargaining rights." Cf. Immigration and
Naturalization Service, 10 FLRA 202 (1982); Internal Revenue Service,
10 FLRA 182 (1982). Article 28 of the collective bargaining agreement,
although recognizing that the Border Patrol will have to, on occasion,
vary and change schedules, does not constitute a clear and unmistakable
waiver of any rights the Council might have to bargain about such
schedule changes.
Section 7116(d) of the Statute provides, in part, that "issues which
can be raised under a grievance procedure may, in the discretion of the
aggrieved party, be raised under the grievance procedure or as an unfair
labor practice . . . , but not under both procedures." The grievance
filed by the Local President Lopez on April 24, 1983 specifically raised
the issue of the Laredo Station Border Patrol Agents being "divided into
eight (8) units or squads headed by one supervisor". There was no
explanation as to what these eight squads referred to except the eight
new shifts. Although the record does not establish that Respondent
advised AFGE Local 1455 about the eight new squads, the union could
reasonably have learned about them in the same manner it learned about
the change in shifts. Thus it would be found, if necessary, that the
grievance did in fact, deal with the schedule changes effective May 29,
1983 and therefore Section 7116(d) of the Statute would require that no
unfair labor practice can be found with respect to substance of the May
29, 1983 schedule changes.
(16) If Lopez did not receive the notification until after August 27
or 28 because he had been on leave, it was incumbent upon the union to
designate someone to receive such notification and not just to await
Lopez return.
(17) Although the memorandum between the Council and INS provided for
15 days notice for changes at the local level, that was a contract
provision and any breach of it should have been raised under the
grievance procedure. The seven days notice that was given was
sufficient notice under the Statute.
(18) In light of the foregoing conclusions I need not decide whether
Article 28, Sections B-I of the contract constituted a waiver of the
Council's right to bargain about the impact and implementation of
schedule changes. If the FLRA were to determine that such a finding was
necessary, I would conclude that these sections did not constitute a
clear and unmistakable waiver of the Council's right to negotiate
concerning the impact and implementation of major schedule changes;
rather, these sections merely deal with the requirements when an
individual employee's schedule is changed.