U.S. Federal Labor Relations Authority

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48:0061(7)CA - - Justice, INS, U.S. Border Patrol, El Paso, TX and AFGE, National Border Patrol Council - - 1993 FLRAdec CA - - v48 p61

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[ v48 p61 ]
The decision of the Authority follows:

48 FLRA No. 7











(Charging Party/Union)




August 6, 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 Respondent to the attached decision of the Administrative Law Judge. The General Counsel did not file an opposition to the Respondent'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 evening shift of a particular work unit without affording the Union an opportunity to negotiate over the procedures to be observed in implementing the change and appropriate arrangements for employees adversely affected by the change. The Judge found that the Respondent violated the Statute as alleged in the complaint. For the following reasons, we have decided to remand this case to the Judge.

Before the Judge, the Respondent argued, among other things, that it was privileged under Article 28 of the parties' agreement to temporarily terminate the SIBAD (Stop Inbound Aliens and Drug) evening shift and to reassign the employees on that shift to different work locations and work hours.(*) The Judge rejected the Respondent's argument on the basis that Article 28 did not constitute a "clear and unmistakable waiver" of the Union's right to negotiate over the impact and implementation of changes in tours of duty and shift assignments. Judge's Decision at 7. The Judge concluded that the Respondent violated the Statute as alleged.

In its exceptions to the Judge's Decision, the Respondent renews its argument that "Article 28 gave management the right to order the SIBAD Agents to report to [different work locations] without further bargaining." Exceptions at 34. According to the Respondent, the Judge erred in applying a waiver standard to evaluate its argument. In this regard, the Respondent relies on U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and Michigan Airway Facilities Sector, Belleville, Michigan, 44 FLRA 482 (1992) (FAA), where the Authority determined that the respondent was not obligated to provide the union with notice and an opportunity to bargain over certain temporary reassignments because, according to the Authority, the matters the union sought to bargain were covered by or contained in the parties' collective bargaining agreement. According to the Respondent, "the provisions of Article 28 are . . . no less clear with regard to addressing the bargainable aspects of managements right to change Agents' previously scheduled tours of duty . . . than the provisions of the contract in [FAA] were with regard to management's right to make temporary assignments." Exceptions at 35.

In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA), we established a framework to be applied to cases in which an agency asserts that it has no obligation to bargain based on the terms of a negotiated agreement. We stated, as relevant here, that in determining whether a contract provision covers a matter in dispute, we will first look to whether the express language of the provision reasonably encompasses the subject matter. In this examination, we will not require "an exact congruence of language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute." Id. at 1018 (citation omitted). Second, if the agreement provision does not expressly encompass the subject matter proposed for negotiations, we will determine whether the subject matter is so commonly considered an aspect of the matter set forth in the agreement that the subject is "'inseparably bound up with and . . . plainly an aspect of . . . a subject expressly covered by the contract.'" Id. (citation omitted). In making these determinations, we will, "where possible or pertinent, examine all record evidence." Id. at 1019.

Applying the SSA test here, we are unable to determine whether Article 28 privileged the Respondent to take the actions disputed in this case without providing the Union with notice and an opportunity to bargain. We note, in this regard, that we recently rejected a similar argument regarding the same contractual provision. Specifically, in United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 47 FLRA 225 (1993), we rejected the Respondent's argument that Article 28 permitted it to abolish a particular work unit without further bargaining. We stated that the issue in that case was "a change in the organizational structure of the Respondent's operation, affecting long-term work assignments, beneficial working conditions, and acquisition of experience in particular types of duties[.]" Id. at 233. We were not persuaded that the provisions of Article 28, which, we stated, "cover[] routine scheduling changes in tours of duty and shifts, [had] any relevance to the elimination of established units[.]" Id.

It is not clear from the Judge's Decision and the record evidence whether, in the case now before us, matters relating to the Respondent's actions in connection with the temporary termination of the evening shift of the SIBAD unit, including, among other things, the reassignments of affected employees to different work locations, are covered by Article 28 so that the Respondent was privileged to take the disputed actions without providing the Union with notice and an opportunity to bargain. Accordingly, we will remand the complaint to the Judge for further proceedings. Specifically, it is necessary to determine whether Article 28 permitted the Respondent to take the actions disputed in this case without affording the Union notice and an opportunity to bargain. If so, the complaint should be dismissed. If not, the Judge should resolve the complaint accordingly.

II. Order

The case is remanded to the Judge for further proceedings consistent with this Decision.

(If blank, the decision does not have footnotes.)

*/ Article 28 of the collective bargaining agreement provides, in pertinent part, as follows:

ARTICLE 28 - Tours of Duty (Border Patrol Council)

        A. The parties . . . recognize that the agency must, to carry out it 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.

. . . .

Joint Exh. 1 at 44-45.