39:1325(117)CA - - Justice, INS, Border Patrol, El Paso, TX and AFGE, National Border Patrol Council - - 1991 FLRAdec CA - - v39 p1325
[ v39 p1325 ]
The decision of the Authority follows:
39 FLRA No. 117
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF JUSTICE
U.S. IMMIGRATION AND NATURALIZATION SERVICE
U.S. BORDER PATROL, EL PASO, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO, NATIONAL BORDER PATROL COUNCIL
DECISION AND ORDER
March 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair Labor practice case is before the Authority on exceptions filed by the Union to the attached decision of the Administrative Law Judge. The Respondent did not file an opposition to the Union's exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing the past practice of allowing the Border Patrol Agents located at the Fabens Border Patrol Station to have their assigned motor vehicles commercially cleaned at Government expense and refusing to negotiate with the Union over the impact and implementation of the change. The Judge found that the Respondent did not violate the Statute because the effects of the change on unit employees' conditions of employment were de minimis.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the procedural rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings.
We find, however, contrary to the Judge, that the Respondent violated the Statute, as alleged in the complaint.
The Union is the exclusive representative of a nationwide unit of nonprofessional employees including the Border Patrol Agents assigned to the Respondent's Fabens, Texas Border Patrol Station. The Union has delegated the authority to negotiate changes in conditions of employment to the local level when the changes have an impact at only one installation.
The Border Patrol Agents at the Fabens Border Patrol Station are responsible for apprehending illegal aliens. Their duties include apprehending and transporting aliens, patrolling, sign cutting or tracking, farm and ranch check and line watch. Each agent at the Fabens station is assigned a Government vehicle, "a stripped down Ford Bronco." Judge's Decision at 3. The vehicles have rubber mats instead of carpeting and a cargo area, in place of rear seats, which is used to transport illegal aliens. The cargo area is separated from the cab of the vehicle by a wire mesh screen, which "does not stop dust and dirt from entering the driver's compartment." Id. Agents use assigned vehicles on a continuing basis, except when a vehicle is in the shop for maintenance. Agents spend about 90 percent of their on-duty time in their vehicles. Most of the time, agents operate their vehicles over unpaved dirt and "caliche" roads, which are bumpy and filled with ruts. Id. Because a vehicle is constantly driven over dirt roads, excess dust and dirt accumulates in the cab area of the vehicle.
Prior to May 22, 1989, the Border Patrol Agents at the Fabens station were authorized to take their assigned vehicles to a local service station for a cleaning approximately twice a month. The station thoroughly cleaned and washed the interior and exterior of the vehicle, including the cargo areas, under the seats, the floor board, the dash board, sun visors, and seat belts. The cost of the cleaning, $9.00, was billed to the Government "through the medium of government credit cards assigned to each vehicle." Id. In addition to the bi-weekly washing, vehicles were washed in conjunction with scheduled maintenance performed on the vehicles at 3000 mile intervals. Id. at 4. The Fabens station had water hoses and air compressors which agents were allowed to use to clean vehicles during working hours.
On May 22, 1989, the Respondent notified the employees assigned to the Fabens station that due to the budget cuts, credit card purchases would be limited effective that date. The restrictions imposed by the Respondent on credit card purchases eliminated, among other things, "the periodic washing and/or cleaning of the vehicles" and the scheduled maintenance on the vehicles. Id. By letter dated June 9, 1989, the Union requested that the Respondent bargain over the impact and implementation of the decision to discontinue the established practice of allowing employees to have their Government vehicles cleaned at Government expense.
By letter dated June 9, 1989, the Respondent's Chief Patrol Agent acknowledged that "three accept[able] practices for cleaning government vehicles" existed at Fabens station: (1) first level vehicle maintenance care by the vehicle operator; (2) submission and approval of an agent's request to have his vehicle washed at the designated service station; and (3) a vehicle wash included as a part of "a cyclical preventive maintenance schedule service[.]" General Counsel's Exh. 4. However, the Respondent's Chief Patrol Agent denied the Union's bargaining request, stating that he had determined that the Union's "allegations [were] not substantiated, therefore, any need for initiating the bargaining process [was] not necessary." Id.
The Respondent's prohibition against Border Patrol Agents having their vehicles commercially cleaned at Government expense was in effect until October 1, 1989.
III. Administrative Law Judge's Decision
The Judge noted that it was undisputed that the commercial cleaning and/or washing of the vehicles assigned to Border Patrol Agents was a "recognized condition of employment[.]" Judge's Decision at 8. The Judge noted also that the General Counsel did not "contend that Respondent was obligated to engage in bargaining over the substance of the change." Id. The Judge stated that the sole issue to be resolved was "whether the prohibition on commercially cleaning the utility vehicles at government expense had a more than de minimis impact on the unit employees." Id. The Judge noted the Respondent's contention that the impact of the change was de minimis and the General Counsel's contention that the adverse impact "consisted of dirtier uniforms, aggravated allergy conditions and morale." Id.
The Judge concluded, based on "particularly the mutually corroborative testimony" of three Border Patrol Agents, that the Respondent's prohibition on having vehicles commercially cleaned at Government expense had a de minimis impact on the conditions of employment of unit employees. Id. In the Judge's view:
their testimony [made] it clear that the prohibition had little or no significant impact upon them since dust and dirt was always a problem and the vehicles would become dusty shortly after the commercial cleaning, which according to them occurred only once or twice a month prior to May 22, 1989.
Id. The Judge also stated that according to the agents' testimony, "the cleaning . . . took only fifteen minutes of their working time and did not result in their uniforms getting any dirtier than usual." Id.
The Judge rejected Border Patrol Agent Marren's contention that "his . . . allergy problem was . . . aggravated by excessive dust in his utility vehicle[.]" Id. at 9. The Judge found that "commercial cleaning of his vehicle might have given him some relief for several hours, not days, of any month." Id. Moreover, according to the Judge:
there [was] no showing in the record that there was any required amount of times that an Agent was to clean his vehicle between the scheduled 3000-mile "A" maintenance. Nor was there any showing that any Agent had ever been disciplined for failure to clean his vehicle.
Id. (footnote omitted)(*) Accordingly, the Judge recommended that the complaint be dismissed.
IV. Union's Exceptions
First, the Union excepts to a finding of fact made by the Judge. The Union asserts that the record shows that Agent Marren's medical problems with allergies and asthma did not appear "until after he was employed by the Respondent, not prior to his employment as indicated by the ALJ." Union's Exceptions at 3 (emphasis in original).
Second, the Union excepts to the Judge's refusal to allow Agent Marren to testify concerning the impact of the change on unit employees. According to the Union:
When Counsel for the General Counsel attempted to elicit testimony from Mr. Marren concerning how the dust impacted on him, the ALJ cut him off by stating "I'm going to take administrative notice that anybody that has allergies and dust is blowing in their face is going to have a problem."
The Union argues that the record supports the conclusion that the impact of the Respondent's prohibition on commercial cleaning of Government vehicles was more than de minimis. According to the Union, two agents testified that it took about 1 hour to 1 1/2 hours to thoroughly clean a vehicle. The Union further asserts that the Judge failed to address "the impact of the dusty and dirty vehicles on Mr. Marren's medical condition and the other adverse health effects experienced by the other employees[.]" Id. at 5. The Union also asserts, in this regard, that the Judge failed to consider the "impact of the discipline imposed upon Mr. Marren as a result of his having washed his vehicle with the water hose." Id. at 6.
To remedy the violation, the Union requests that the Authority order "a make whole remedy for those employees who can delineate a compensable adverse impact which was suffered as a result of the Respondent's illegal actions." Id. at 8. According to the Union, the "Respondent's action of unilaterally halting the past practice" adversely affected unit employees in the following manner:
There [were] the extra cleaning costs incurred by the employees, who's [sic] uniforms were soiled because of increased dirt and dust in the vehicles, or which were soiled when they cleaned the vehicles themselves. There was the lost time and reduced productivity because the Agents were cleaning their vehicle, rather than patrolling. There were the physical aggravations of dust in the eyes, food and even breathing problems. There was damaged equipment, and consequent disciplinary action, which resulted from an employee having to do something which he was unprepared to do and had never before been required to do.
Id. at 7-8.
The Union requests that the Authority order that Agent Marren be made whole for the adverse impact he suffered as a result of the Respondent's unlawful actions. The Union asserts that "[i]t was only because the Respondent changed the past practice of allowing . . . employees . . . to have their government vehicles commercially cleaned, that [Agent Marren] used the water hose, . . . unfortunately damaging the vehicle's electronic equipment." Id. at 9 (emphasis in original). The Union argues that "'[b]ut for' the change in the past practice, Mr. Marren would have never used the water hose to clean the vehicle, since he always had his vehicle commercially cleaned." Id. In the alternative, the Union requests that the Authority "issue an order directing bargaining and the payment of back pay consistent with the outcome of that bargaining." Id. at 10.
V. Analysis and Conclusions
We find, contrary to the Judge, that the reasonably foreseeable effects of the Respondent's prohibition on the commercial cleaning of Government vehicles on the conditions of employment of unit employees were more than de minimis.
In Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) (SSA), the Authority reassessed and modified the de minimis standard previously used to identify changes in conditions of employment which require bargaining. The Authority stated that in order to determine whether a change in conditions of employment requires bargaining, it would carefully examine the pertinent facts and circumstances presented in each case. The Authority further stated that in examining the record, principal emphasis would be placed on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on the conditions of employment. The Authority also stated that equitable considerations would be taken into account in balancing the various interests involved, that the number of affected employees and the parties' bargaining history would be given limited application; and that the size of the bargaining unit would no longer be a consideration.
Applying the SSA standard here, we find that the nature and extent and the reasonably foreseeable effects of the Respondent's prohibition on the commercial cleaning of vehicles on bargaining unit employees were more than de minimis. In reaching this conclusion, we note first that it is undisputed that the Respondent's practice was to allow agents assigned to the Fabens Border Patrol Station to have their vehicles commercially cleaned at Government expense, and that unit employees had their vehicles thoroughly washed and cleaned at the designated station every 2 weeks at Government expense. It also is undisputed that the Respondent unilaterally discontinued the practice for 5 months, without providing the Union with notice of its decision and without bargaining over the impact and implementation of the change.
The record before us reveals that during the 5-month period, agents cleaned their own vehicles more frequently. Transcript at 68-70, 78-80. The record reveals also that it took agents from 15 to 20 minutes to surface clean vehicles and from 1 to 1 1/2 hours to perform the thorough cleaning which previously had been done at Government expense. Id. at 71, 81. The record further establishes that at least one agent complained to the Respondent that his allergy problems were aggravated by the excessive dust in his vehicle. Id. at 39-40.
Based on the foregoing, we conclude that the nature and the extent of the effects and reasonably foreseeable effects of the Respondent's prohibition on the commercial cleaning of vehicles at Government expense on bargaining unit employees' conditions of employment were more than de minimis. We note, in this regard, that unit employees are required to drive their assigned vehicles over unpaved dirt roads, exposing themselves and the vehicle to substantial amounts of dust and dirt. Moreover, in its reply to the Union's request to bargain, the Respondent rejected the Union's assertion that agents were required, as a result of the change, to wash their vehicles. In so doing, the Respondent asserted that agents "have always been required to demonstrate proper care and use of government equipment." Judge's Decision at 6. Accordingly, although the record does not establish that "there was any required amount of times that an Agent was to clean his vehicle," it is not disputed that agents were responsible for the cleanliness of their vehicles. Id. at 9. In fact, the Respondent maintained water hoses and air compressors on its premises for these purposes.
At the time of the change, therefore, it was reasonably foreseeable that the effects of the change could be more than de minimis. Moreover, we reject the Judge's conclusion that the effects of the change were de minimis because the vehicles become dirty soon after they are cleaned. That conclusion is based on the Judge's view of the effectiveness of the established practice, not the effects of the change in that practice. Many established practices may be of only marginal benefit to employees. The obligation to bargain, however, depends on the effects or reasonably foreseeable effects of the change in the practice, not the efficacy of the practice itself.
In this case, the Respondent took measures to help alleviate the accumulation of excessive dirt and dust in the employees' work environment. One of the measures was the Respondent's practice of allowing unit employees to have their vehicles thoroughly cleaned, bi-weekly, at Government expense. We conclude that discontinuing that practice, however effective, in circumstances where unit employees constantly were exposed to such dirt and dust, had reasonably foreseeable effects on bargaining unit employees' conditions of employment that were more than de minimis.
As the effects of the Respondent's prohibition on the commercial cleaning of vehicles were more than de minimis, the Respondent was required to provide the Union with notice of, and an opportunity to bargain over, the impact and implementation of the change. There is no dispute that the Respondent failed to provide the Union with advance notice of, and refused to bargain with the Union, when requested, over the impact and implementation of the change. Accordingly, the Respondent violated section 7116(a)(1) and (5) of the Statute.
We find that an order requiring the Respondent to bargain over the impact of the May 22, 1989, prohibition on the commercial cleaning of Government vehicles, the procedures to be observed in implementing any like or similar change in the future, and appropriate arrangements for employees adversely affected by the change is the appropriate remedy based on the record established in this case. In so finding, we reject the Union's requests that: (1) Agent Marren be made whole for the adverse impact he suffered as a result of the Respondent unlawful act, or (2) the Authority issue an order directing bargaining and the payment of backpay consistent with the outcome of that bargaining.
A backpay award under the Back Pay Act requires determinations that: (1) an employee was affected by an unjustified or unwarranted personnel action, (2) the action resulted in a withdrawal or reduction in the pay, allowances, or differentials of the employee, and (3) the withdrawal or reduction would not have occurred but for the unjustified action. In refusal-to-bargain cases, the causal nexus required by the Back Pay Act is established when the Authority finds that an agency's action that gave rise to the violation resulted in a withdrawal or reduction in the pay, allowances or differentials of employees. The Authority will order a backpay remedy where it is clear that the violation resulted in a loss of some pay, allowances or differentials. Where it is clear that the violation resulted in such a loss but the identity of the affected employees can not be ascertained in compliance proceedings, the Authority will, consistent with Federal Aviation Administration, Washington, D.C., 27 FLRA 230, 234 (1987), allow the parties to "establish the causal nexus required by the Back Pay Act by determining through negotiations the extent of the make-whole relief." U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and U.S. Department of Health and Human Services, Social Security Administration, Hartford District Office, Hartford, Connecticut, 37 FLRA 278, 292 (1990). Where the effect on employees is speculative, however, the Authority will deny make-whole relief. Id.
The Union contends that Agent Marren was disciplined and suffered a loss of wages as a result of the change. The only evidence in the record supporting this contention is Agent Marren's testimony that when he cleaned his vehicle with the water hose, "[i]t damaged the electronics equipment" and "[he] got 33 days off." Transcript at 41. There is, in this regard, no evidence, written or testimonial, that Agent Marren was suspended, or received any other disciplinary action, based on his apparent attempt to clean his vehicle. In the absence of any evidence concerning Marren's "33 days off[,]" we conclude that the Union has not established that the Respondent's unlawful change resulted in a withdrawal or reduction in pay, allowances or differentials of Agent Marren. Similarly, there is no evidence that any other unit employee suffered a withdrawal or reduction in pay or allowances or differentials as a result of the Respondent's unlawful action. Accordingly, we find that a backpay remedy is not warranted in this case.
Although the Respondent reinstated the established practice after 5 months, the Union had no opportunity to bargain over the impact and implementation of the Respondent's prohibition on the commercial cleaning of vehicles. Therefore, we will require the Respondent to bargain with the Union, upon request, over the impact of the prohibition on the commercial cleaning of Government vehicles and the impact and implementation of any future similar cha