[ v47 p225 ]
The decision of the Authority follows:
47 FLRA No. 15
FEDERAL LABOR RELATIONS AUTHORITY
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE
UNITED STATES BORDER PATROL
DEL RIO, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL
LOCAL 2366, AFL-CIO
DECISION AND ORDER
March 26, 1993
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 General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed a response to the General Counsel'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 abolishing an organizational unit at the Del Rio Border Patrol Station without negotiating with the Charging Party over the impact and implementation of the change on bargaining unit employees. The Administrative Law Judge found that the General Counsel had not established that the abolishment of the unit had an effect or reasonably foreseeable effect on the conditions of employment of bargaining unit employees "which was more than de minimis so as to trigger an obligation on the part of Respondent to bargain over the impact and implementation of the decision." Judge's decision at 5.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.
The Union is an agent for the certified exclusive representative of a nationwide consolidated unit of employees of the United States Immigration and Naturalization Service (INS), United States Border Patrol. The Union represents unit employees at the Del Rio, Texas facility of the INS.
The organizational unit at issue in this case is known as ELR/BORCAP, which stands for Employee Labor Relations/Border Patrol Criminal Alien Program. This unit of Border Patrol agents was established in early 1988 to carry out some of the mandates of the Immigration Reform and Control Act of 1986 (the Act) which, following an educational phase, imposed fines and sanctions on employers for employing illegal aliens. The ELR and BORCAP segments of the unit performed different duties. Thus, duties connected with ELR cases included educating employers about the Act, checking relevant employer and employee forms and pay stubs, and gathering evidence to prosecute sanctions against employers. Duties connected with BORCAP cases included contacting the local jail by telephone or in person to check for illegal aliens convicted of crimes who could be deported when they finished their sentences. Agents assigned to the unit also conducted record checks for relevant documents.
There are three standard duty shifts at the Del Rio facility, which operates around the clock. In contrast, the ELR/BORCAP unit operated Monday through Friday from 7 a.m. to 3 p.m. Bargaining unit agents were assigned to this unit for at least one year and did not rotate on a monthly basis as did agents assigned to the three standard duty units. The ELR/BORCAP agents also did not work weekends or wear uniforms, as did agents assigned to the rotating units. ELR/BORCAP functions are part of the job description of all GS-11 agents and all of the bargaining unit agents assigned to ELR/BORCAP were at the GS-11 level.
Following the initial enforcement phase, the number of ELR cases decreased steadily each year from 11 in 1988 to 9 in 1989 and 6 in 1990. There were three ELR cases from the beginning of January through July of 1991. ELR activity is minimal in Del Rio because there is little local employment opportunity in the area. In addition, there were, on average, approximately eight BORCAP cases per year.
As a result of the decreasing workload, at most two bargaining unit employees were assigned to the unit during its final year. Much of that time the work was handled by only one unit employee and the supervisor, while the other unit employee was on extended detail. At times, only the supervisor was needed to handle the work.
By letter dated October 30, 1990, the Union asked the Respondent whether it was "contemplating phasing out the Employers Sanction Unit and turning over the duties of BORCAP and SANCTIONS" to the regular shifts. General Counsel's exhibit 2. The Union further requested bargaining over the adverse impact if such a change was planned. On November 5, 1990, the Respondent answered that it "[knew] of no contemplated change for the Sanctions Unit[.]" General Counsel exhibit 3. Nevertheless, on January 29, 1991, the Respondent announced its intention to abolish the ELR/BORCAP unit at Del Rio, effective April 21, 1991.
From the date the Respondent announced its intention to abolish the unit on January 29, 1991, through February 23, one bargaining unit employee was assigned to ELR/BORCAP. Between February 24 and April 6, no unit employees were assigned to ELR/BORCAP. The record does not indicate the staffing for ELR/BORCAP from April 7 until the abolition of the unit on April 21. Respondent's exhibit 5.
The Respondent denied the Union's requests, dated February 8 and March 7, 1991, to bargain over the impact and implementation of the abolition of the unit.(1) The Respondent's written answer to the Union's February 8, 1991, request stated, among other things, that "[t]here is no adverse impact. Any impact at all would be de-minimus [sic] at most and therefore not subject to bargaining under Section 3-G of the agreement." General Counsel's exhibit 6. The Respondent's answer to the Union's March 7 request stated that the abolishment of the unit had not resulted in a change in duties, location or in shifts or hours worked, and agents had not suffered any loss in benefits. In addition, the Respondent addressed other concerns raised by the Union in its March 7 request, stating that training would be provided as determined by management, career development would "not be hampered in any way[,]" and that the goal of unit assignments at the Del Rio Station was "to provide a wide range of experience to a larger cadre of officers on a regular basis." General Counsel's exhibit 8.
The Respondent had formed and abolished other units at the Del Rio Station without bargaining over the impact and implementation of the changes with the Union. However, the record does not indicate that any of those units were as long-lived as the ELR/BORCAP Unit.
Since the elimination of the unit, the occasional ELR and BORCAP assignments have been handled by GS-11 or GS-9 patrol agents designated to wear plain clothes on one of the rotating day shift units. To investigate an ELR case, the agent interviews the alien, fills out a simple form or two, and refers the complaint for follow-up to Agency personnel in other cities. All agents are trained in interviewing techniques and have regular contacts with aliens, employers, motel operators, and other law enforcement personnel. A less experienced GS-9 agent assigned to ELR/BORCAP cases can refer to training manuals with sample forms, or request assistance from more experienced agents and supervisors. At the time of the hearing, there were no pending ELR investigations and no active BORCAP cases.
Article 28, section A of the parties' master collective bargaining agreement provides that the parties "recognize that the Agency must, to carry out its mission, vary tours of duty[,]" and states that "changes in an employee's scheduled hours of duty shall be kept to the minimum necessary to accomplish the mission of the Agency." Respondent's exhibit 4. Article 28, Sections B, C and H provide procedures for posting tours of duty in advance, scheduling time between changes in shifts, and giving employees notice of shift changes, respectively.
III. Judge's Decision
The Judge found that "the ELR/BORCAP unit was a dying unit." Judge's decision at 4. He found it "highly speculative rather than reasonably foreseeable that any GS-11 bargaining unit agents would have been assigned to the unit after April 21, 1991 due to the declining caseload." Id.
He also found that it was not necessary to have specialized experience to advance in the Border Patrol; that agents assigned to the regular rotating units were equally eligible for assignment to details as those in the ELR/BORCAP unit; and that the abolishment of the unit "did not have any appreciable effect on the workload of agents assigned to the day shift." Id.
The Judge concluded that a preponderance of the evidence did not establish that the elimination of the ELR/BORCAP unit had an effect or reasonably foreseeable effect on the conditions of employment of bargaining unit employees that was more than de minimis so as to trigger an obligation on the part of the Respondent to bargain over the impact and implementation of the decision. Accordingly, the Judge concluded that the General Counsel had not met the burden of proving the allegations of the complaint.
IV. Positions of the Parties
The General Counsel excepts to the Judge's dismissal of the complaint, arguing that: (1) the fact that the unit was "dying out" was uncontradicted but irrelevant to the question of whether there was a duty to bargain on the impact and implementation of the decision to abolish the unit; (2) the special experience gained by participating in ELR/BORCAP operations is career enhancing; and (3) even if the change did not have more than a de minimis effect on some aspects of unit employees' conditions of employment, the effect of the change on employees' shifts and work days gave rise to a duty to engage in impact and implementation bargaining. The General Counsel also requests a status quo ante remedy.
The Respondent argues that because there were no bargaining unit members in the ELR/BORCAP unit when it was abolished, the elimination of the unit could not have had any effect on conditions of employment of bargaining unit employees.
The Respondent also takes issue with the General Counsel's contention that it was necessary to have specialized experience to advance in the Border Patrol, arguing that the General Counsel is merely disagreeing with the Judge's credibility findings in this regard. On the merits of this exception, the Respondent argues that Internal Revenue Service, 10 FLRA 326 (1982), cited by the General Counsel, is not applicable to this case. In this regard, the Respondent contends that in Internal Revenue Service, which involved the abolition of an active training unit, training was found to be career enhancing whereas in this case ELR/BORCAP was not a training unit and the Judge found that assignment to ELR/BORCAP work was not career enhancing.
With regard to the General Counsel's third exception, the Respondent argues that there is no evidence to indicate that elimination of the unit had any effect on shifts or tours of duty. In this connection, the Respondent states that the Union did not ask to bargain "when the staffing of the unit was changed . . . to consist solely of one non-unit supervisor. . . . Thus, the abolishment of the unit (as opposed to the earlier change in the composition of the unit) had no effect on any bargaining unit employee." Respondent's brief at 8.
Finally, the Respondent asserts that, even assuming that the change affected shifts or tours of duty, it fulfilled its obligation to bargain when it negotiated Article 28 of the collective bargaining agreement, which contains detailed impact and implementation procedures to be followed in the event of changes in shifts or tours of duty.
V. Analysis and Conclusions
Contrary to the Judge, we conclude that the Respondent's announcement on January 29, 1991, of its decision to abolish the ELR/BORCAP unit gave rise to a duty to bargain when the Union requested negotiations over the impact and implementation of that decision. We base this determination on our conclusions that the decision was a change in conditions of employment and that the change had an effect or a reasonably foreseeable effect on the conditions of employment of unit employees that was more than de minimis. As we further find that the Respondent did not fulfill its bargaining obligation, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute, as alleged.
A. There Was a Change in Conditions of Employment
We first find that the abolition of the ELR/BORCAP unit was a change in conditions of employment of unit employees. Although it is undisputed that, in the words of the Judge, it was a "dying unit[,]" Judge's decision at 4, during January and February bargaining unit employees were assigned to ELR/BORCAP and still were performing ELR/BORCAP work. Thus, at the time the Union requested bargaining on February 8, 1991, there was at least one bargaining unit employee affected by the Respondent's decision on January 29 to abolish the unit. Therefore, we disagree with the Respondent's contention that the Union did not timely request bargaining "when the staffing of the unit was changed . . . ." Respondent's brief at 8.
In general, working conditions of employees in the ELR/BORCAP unit differed substantially from those of other unit employees. Thus, ELR/BORCAP assignments lasted for a year, involved work on only one shift, did not include weekends, and did not require the wearing of uniforms. In addition, only GS-11 agents were assigned to the ELR/BORCAP unit, but in other units the ELR/BORCAP work could be assigned to GS-9 agents as well. Thus, after the elimination of the unit, those employees previously assigned to the unit might never receive further ELR/BORCAP assignments.(2) Consequently, it is clear that by eliminating the unit, the Respondent changed the conditions of employment of the unit employees who were or would have been assigned to the unit.
B. The Change Was More Than De Minimis
In order to determine whether a change in conditions of employment gives rise to a duty to bargain over the impact and implementation of that change, we will carefully examine the facts and circumstances of each case, placing principal emphasis on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the changes on the conditions of employment of bargaining unit employees. Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) (SSA). Although the impact of the change need not be substantial to give rise to a bargaining obligation, it must be more than de minimis. Id. In making this determination, the number of employees involved will not be a controlling factor. Id. See, for example, 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 (1990), (reassignment of one employee was deemed sufficient to require impact and implementation bargaining).
On February 8, 1991, when the Union first requested bargaining, there was one unit employee working in the ELR/BORCAP unit. The record reveals that only one or two unit employees were assigned to the ELR/BORCAP unit during the period from April 27, 1990, until February 1991. Respondent's exhibit 5. Therefore, the fact that only one bargaining unit employee was assigned to the unit at the time of the request to bargain was not unusual and in itself would not make the impact of the change de minimis, so long as there was a demonstrable effect or a reasonably foreseeable effect on that employee or others in the bargaining unit. Thus, although it is undisputed that the work of the ELR/BORCAP unit was declining and that elimination of the unit may have been justified, that fact does not affect the question to be determined, which is whether the change had a more than de minimis effect on the employees who were or would have been assigned to the unit. If so, the Respondent was required to bargain over those effects before abolishing the unit.
The abolishment of the unit had a foreseeable impact on unit employees in ways that we deem more than de minimis. After the unit was abolished, those employees who might have been assigned to the ELR/BORCAP unit could be required to work weekends and on less desirable shifts, to wear uniforms, and to rotate frequently from one assignment to another. In addition, they would have to share the remaining duties with other agents, including GS-9 employees. Although the Judge found that specialized experience is not a prerequisite to advancement in the Border Patrol, he also found that such experience is worth 3 of the 100 points on the employees' officer corps rating. Consequently, the likelihood that the GS-11 employees who had been assigned to the special unit would have less of an opportunity to perform the specialized ELR/BORCAP work could have some effect on those ratings. Thus, at the time of the announcement, although it was apparent that ELR/BORCAP duties were declining, at least one bargaining unit employee was performing the work under favorable conditions; after the change, that work was shared with lower-graded agents, and the work was performed under far less favorable conditions. We conclude that the reasonably foreseeable effects of the proposed elimination of the unit on the conditions of employment of unit employees was sufficient to require bargaining over those effects.
C. The Respondent Did Not Fulfill Its Bargaining Obligation
We also reject the Respondent's argument that by negotiating Article 28 of the parties' agreement, the Respondent satisfied its obligation to negotiate regarding the impact and implementation of the abolishment of the unit. Article 28 concerns the Respondent's ability to regulate tours of duty and shift changes; it makes no references, explicitly or implicitly, to the elimination of established units. A "tour of duty" is "the hours of a day . . . and the days of an administrative workweek . . . that constitute an employee's regularly scheduled administrative workweek." Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532, 541 (1988) (quoting 5 C.F.R. § 610.102.(h)), affirmed on other grounds National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d. 380 (D.C. Cir. 1990); Veterans Administration Medical Center, Prescott, Arizona, 46 FLRA 471, 474 (1992). At issue in this case is a change in the organizational structure of the Respondent's operation, affecting long-term work assignments, beneficial working conditions, and the acquisition of experience in particular types of duties, as discussed above. We are not persuaded that the provisions of Article 28, which covers routine scheduling changes in tours of duty and shifts, have any relevance to the elimination of established units, the situation at issue here.
In sum, we conclude that the Respondent had a duty to bargain with the Union over the impact and implementation of its decision to abolish the ELR/BORCAP unit, and that by failing to do so when requested, it violated the Statute as alleged.
In its exceptions, the General Counsel requests a status quo ante remedy. In order to justify a return to the status quo ante to remedy a failure to bargain over the impact and implementation of a change in conditions of employment, the Authority will, on a case-by-case basis, "carefully balanc[e] the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy." Federal Correctional Institution, 8 FLRA 604, 606 (1982) (FCI). Under the criteria set forth in FCI, the Authority considers, among other things, (1) whether, and when, notice was given to the union by the agency; (2) whether, and when, the union requested bargaining; (3) the willfulness of the activity's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. Id. at 606.
Here, the Respondent gave the Union advance notice of its intention to abolish the ELR/BORCAP unit. Although the Respondent declined to bargain when requested by the Union, and, as we found, the impact on unit employees was more than de minimis, we note that there is agreement that little work remains of the type done by the former ELR/BORCAP unit. We disagree with the General Counsel's argument that a return to the status quo ante "would cause almost no disruption at all . . . because agents assigned to the unit could be detailed to perform other duties when not handling or processing ELR/BORCAP cases." General Counsel's brief to the Judge at 15, incorporated by reference in its exceptions at 8. Rather, we conclude that the circumstances do not justify requiring the Respondent to assign employees to such a unit.
The reinstitution of such a unit, when there is little left of its work, clearly would place a burden on the efficiency and effectiveness of the Respondent's operations. At the very least, the Respondent would have to assign a supervisor and an employee or employees to a unit with the unique characteristics outlined above that would be established to perform only ELR/BORCAP assignments. In view of the uncontroverted fact that little or no ELR/BORCAP work remains, the Respondent would then have to detail those employees to other units for most of their assignments. Although the record does not indicate the exact extent of the burden such an exercise might entail, it is clear that to reinstitute the unit in these circumstances would be meaningless. In view of the fact that only a few unit employees were directly affected by the elimination of the unit, we find that the efficiency and effectiveness of the Respondent's operations would be impaired without adequate justification. See FCI, 8 FLRA at 606 (status quo ante remedy denied because the impact of the change on unit employees was minimal). Compare 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, 287 (1990) (status quo ante remedy appropriate where placement of one employee in position of field representative would not cause a significant degree of disruption to agency's operations pending impact and implementation bargaining despite agency's contention that the field representative would have no duties to perform of sufficient benefit to the Government.) Therefore, we shall issue a remedial order requiring the Respondent to cease and desist from conduct violating the Statute, to bargain over the impact and implementation of its decision to eliminate the ELR/BORCAP unit upon request of the Union, and to post an appropriate notice.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with American Federation of Government Employees, National Border Patrol Council, Local 2366, AFL-CIO, the exclusive representative of a unit of its employees, over the impact and implementation of its decision to eliminate the ELR/BORCAP unit.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request, bargain with American Federation of Government employees, National Border Patrol Council, Local 2366, AFL-CIO, the exclusive representative of a unit of its employees, over the impact and implementation of its decision to eliminate the ELR/BORCAP unit.
(b) Post at its facilities in Del Rio, Texas, copies of the attached Notice on forms to be furnished by the Federal labor Relations Authority. Upon receipt of such forms, they shall be signed by the Chief Patrol Agent for the Del Rio Sector, and be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Dallas Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to bargain with American Federation of Government Employees, National Border Patrol Council, Local 2366, AFL-CIO, the exclusive representative of a unit of our employees, over the impact and implementation of our decision to eliminate the ELR/BORCAP unit.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.
WE WILL, upon request, bargain with American Federation of Government employees, National Border Patrol Council, Local 2366, AFL-CIO, the exclusive representative of a unit of our employees, over the impact and implementation of our decision to eliminate the ELR/BORCAP unit.
Dated: ______________ By: _________________________________
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, whose address is: Federal Office Building, 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202, and whose telephone number is: (214) 767-4996.
(If blank, the decision does not have footnotes.)
1. Although the union also requested bargaining over the decision to change the unit, that is not an issue in this case, which involves an alleged violation of the Statute only for failing to bargain over the impact and implementation of the change.
2. We note that, before the Judge, the Respondent argued that constant structural change is a normal and expected component of its operation, and that "constantly changing shifts and unit assignments are the condition of employment at the Del Rio Station." Transcript at 7, 141. Although the Respondent did not renew that argument here, we emphasize that the units referred to in the record had been in existence for far shorter periods than the three-year lifespan of ELR/BORCAP. Thus, the fact that the Union may not have demanded impact and implementation bargaining when units had been abolished in the past, under such different circumstances, would not establish a waiver of a right to do so now. See U.S. Department of the Navy, Marine Corps Logistics Base, Barstow, California, 42 FLRA 287 (1991) remanded without deision U.S. Department of the Navy, Marine Corps Logistics Base, Barstow, California v. FLRA, No. 91-1565 (D.C. Cir. Dec. 4, 1992); U.S. Department of Agriculture, Food Safety and Inspection Service and American Federation of Government Employees, National Joint Council of Food Inspection Locals, 41 FLRA 654 (1991).