FEDERAL LABOR RELATIONS AUTHORITY OALJ 13-21
Office of Administrative Law Judges
WASHINGTON, D.C.
DEPARTMENT OF HOMELAND SECURITY U.S. CUSTOMS AND BORDER PROTECTION EL PASO SECTOR, EL PASO, TEXAS RESPONDENT | |
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER PATROL COUNCIL, LOCAL 1929, AFL-CIO CHARGING PARTY | Case No. DA-CA-10-0184 |
William D. Kirsner
For the General Counsel
Charisma T. Lam
For the Respondent
James A. Stack
For the Charging Party
Before: CHARLES R. CENTER
Chief Administrative Law Judge
DECISION
This unfair labor practice hearing was conducted pursuant to and in accordance with the Federal Service Labor‑Management Relations Statute, 5 U.S.C. §§ 7101-7135 (Statute), and the rules and regulations of the Federal Labor Relations Authority (Authority), 5 C.F.R. Part 2423.
On February 10, 2010, the American Federation of Government Employees, National Border Patrol Council, Local 1929, AFL-CIO (Charging Party/Union), filed an unfair labor practice charge against the Department of Homeland Security, U.S. Customs and Border Protection, El Paso Sector, El Paso, Texas (Respondent/Agency). After conducting an investigation, the Regional Director of the Dallas Region issued a complaint and notice of hearing on February 28, 2011, alleging that the Respondent violated § 7116(a)(1) and (5) of the Statute by changing a condition of employment without providing the Union notice and an opportunity to bargain over this change.
A hearing upon the matter was conducted in El Paso, Texas, on April 26 and 27, 2011. All parties were represented and afforded an opportunity to be heard, to introduce evidence, and to examine witnesses.
In making this decision I have fully considered the post-hearing briefs filed by the General Counsel and Respondent. Based on the entire record, including my observation of the witnesses and their demeanor, I find that the Respondent changed bargaining unit employees’ conditions of employment without providing the Union notice and an opportunity to bargain in violation of the Statute. In support of these determinations, I make the following findings of fact, conclusions of law, and recommendations.
Findings of Fact
The Respondent is an agency within the meaning of § 7103(a)(3) of the Statute, that employs Customs and Border Patrol Agents. (G.C. Ex. 1(d); Tr. 22). The Union is the exclusive representative of a unit consisting of approximately 2,600 agents in the Respondent’s El Paso Sector and is a labor organization within the meaning of § 7103(a)(4) of the Statute. (G.C. Ex. 1(d); Tr. 74). The Respondent’s El Paso Sector is headquartered in El Paso, Texas, and has jurisdiction over west Texas and southern New Mexico. (Tr. 21). There are twelve Border Patrol stations in the El Paso Sector. (Tr. 131). The El Paso Sector is led by a chief patrol agent, and seven assistant chiefs, including one who works in El Paso, but maintains operational jurisdiction over the Las Cruces Station. (Tr. 522). Stations in the El Paso Sector receive guidance from headquarters concerning labor relations and legal services. (Tr. 102‑03). James Stack is the local Union president and is the Union’s designated contact to receive notice of changes in the El Paso Sector. (G.C. Ex. 16-18; Tr. 22, 72‑76).
The Respondent’s mission is to detect, prevent, and deter threats to the United States posed by illegal aliens, illegal narcotics, terrorist weapons, and other illegal activity. (Tr. 21‑22, 124, 343). To accomplish this mission, the Respondent operates checkpoints where agents inspect all traffic on major thoroughfares leaving the area surrounding the border between the United States and Mexico. (Tr. 77, 343). There are three permanent checkpoints under the authority of the Las Cruces Station, they are located on U.S. Interstates 10 (I-10) and 25 (I-25), and New Mexico Highway 185. (Tr. 483-84). The checkpoint at issue in this case is the I-10 checkpoint, which inspects traffic heading west on I-10, 35 to 40 miles north of the international border. (Tr. 29-30, 225, 288). Typically, all westbound traffic on I-10 is diverted to the checkpoint. (Tr. 29). Generally, the I-10 checkpoint is open 24 hours a day, 365 days a year. (Tr. 118, 243). The volume of traffic flowing through the I-10 checkpoint has increased over the years and currently ranges between 9,000 and 15,000 vehicles a day. (Resp. Ex. H at 1; Tr. 496-97).
The I-10 checkpoint is staffed by agents from the Las Cruces Station. (Tr. 46). Generally, agents’ duties include conducting primary inspections, secondary inspections, and bus inspections. (Tr. 138-39, 249). During primary inspections, agents question the occupants of each vehicle, and inspect their citizenship and travel documents. (Tr. 143-44). If the agent conducting the primary inspection determines that there is something suspicious about the vehicle or its occupants, then the agent refers the vehicle for a secondary inspection. (Id.). In that case, the primary agent directs the vehicle to a different area of the checkpoint, and secondary agents inspect the occupants and the contents of the vehicle more closely. (Tr. 143-44, 245‑47).
The I-10 checkpoint includes a main building with computers, holding cells, and a waiting area. (Tr. 288). Cars are diverted off the highway in one lane, which then divides into two lanes at the checkpoint. (Id.). The two lanes are partially covered by a canopy, and there is a booth between the lanes that is covered by the canopy. (Tr. 36-37). Buses are diverted to a third lane outside of the canopy. (Tr. 139, 236-37). When traffic backs up the agents must flush traffic, meaning that they let cars pass through the checkpoint without inspection. (Tr. 140, 180-81, 426-27).
Since the early 1990s, agents have regularly conducted primary inspections in the outer lane, the lane under the canopy furthest from the main building. (Tr. 344, 393‑94). Although the inside lane, the lane closest to the main building, may have been used for primary inspections on isolated occasions or during special operations. (Tr. 344, 359, 403, 474), I find that primary inspections were not regularly conducted in the inner lane on a daily basis until the change described below was implemented in January 2010. In this regard, a Respondent witness who worked as an agent out of the Las Cruces Station for eleven years admitted that months would pass when the inside lane was not used for primary inspections, and that using the inside lane for primary inspections was the exception rather than the rule. (Tr. 341-44, 360‑61). This is consistent with the testimony of three agents who have worked at the I-10 checkpoint since 2000, 2006, and 2008, who testified that they have never personally witnessed the inside lane used for primary inspections prior to the testing that occurred in 2009. (Tr. 138, 141-42, 193, 195, 225, 227).
A Respondent witness also testified that the inside lane was not used for primary inspections between May 2009 and November 2009, because the New Mexico Department of Transportation (NM DOT) advised the Respondent to refrain from conducting primary inspections in that lane until the NM DOT revised the Respondent’s traffic management plan. (Tr. 492-93, 509-10, 519). NM DOT’s involvement was triggered by a fatal accident on the ramp to the I-10 checkpoint. (Tr. 492).
In approximately August 2009, NM DOT provided the Respondent with a revised traffic management plan that included directions concerning signs and cones the Respondent needed to install or repair before making the inner and outer lanes operational. (Tr. 476). After making the NM DOT’s suggested improvements, the Respondent conducted tests wherein agents would conduct primary inspections in both the inner and outer lanes. (Tr. 476, 494, 504-06). Although the record is unclear concerning how many tests were conducted, it appears that the Respondent conducted one test on November 13, 2009, and an official from the NM DOT was invited to observe that test. (Resp. Ex. H at 3; Tr. 506).
Additionally, the Respondent conducted further testing “periodically through[out] the holidays prior to Christmas.” (Tr. 437). This testing was “never on a continuous basis” but it provided a tool for comparing how many cars were inspected per hour using both lanes as compared to using only the outer lane. (Tr. 435-36, 446-47). Union president James Stack heard about this testing after it took place from unit employees, but the Respondent did not provide the Union with notice of any of the testing. (Tr. 76, 109-11, 122-23, 448, 506). The employees who told Stack about the testing did not inform him that the testing could lead to use of the inside lane for primary inspections on a more permanent basis, presumably because these employees were not informed of the Respondent’s plans in this regard. (Tr. 122‑23).
As a result of the testing, the Respondent discovered that using the inner and outer lanes for primary inspections increased the number of cars inspected per hour, thereby decreasing back-ups and traffic flushing. (Resp. Ex. H at 3-4; Tr. 436-37). Thus, an internal Respondent memorandum recommended that “[t]he two primary lane expansion to the existing checkpoint . . . should be immediately implemented manpower and conditions permitting.” (Resp. Ex. H at 4). This memo was not provided to the Union. (Tr. 507). The Respondent did not implement the memorandum’s recommendation until the assistant chief from the El Paso Sector with operational jurisdiction over the Las Cruces Station was sure that all of NM DOT’s directives for traffic management were satisfied, whereupon he directed the change. (Tr. 519-22).
As the Respondent concedes in its brief: “Beginning January 2010, the second primary lane was put into regular use.” (Resp. Br. at 7). Under the prior arrangement, commercial and noncommercial traffic was typically diverted solely to the outer lane. (Tr. 68-69, 140). Beginning on or about January 3, 2010, the Respondent directed agents to conduct primary inspections in both the inner and outer lanes, with commercial traffic diverted to the outer lane and passenger vehicles queued for inspection in the inside lane. (Tr. 54-55, 139-40, 288). Although the Respondent reverts to conducting primary inspections in only the outer lane during evening hours when traffic is light, agents now conduct primary inspections in the inside lane for approximately ten to sixteen hours per day. (Tr. 211, 244, 330, 354, 491, 495, 513-14).
At some point after the January 2010, change was implemented, the Respondent installed a booth near the main building, adjacent to the inside lane. (Tr. 36, 155-56, 230). The Respondent also installed a stop sign that blocks the booth’s window and interferes with agents’ ability to monitor for vehicles attempting to bypass the checkpoint. (Tr. 234). In addition, the placement of the booth can also interfere with agents’ ability to observe both primary inspection lanes from inside the main building. (Tr. 329-30).
When the I-10 checkpoint was operating with one primary inspection lane, there were usually four or five agents working the checkpoint. (Tr. 89, 219). Since doubling the number of primary inspection lanes in January 2010, the Respondent has increased the number of agents assigned to the I‑10 checkpoint to as many as eight agents. (Tr. 157, 188, 218-19, 243, 355). However, even with the additional staffing, agents spend a larger percentage of their shifts conducting primary inspections than they did before thE January 2010, change. (Tr. 89-90, 157-58, 188-89, 218, 230, 237-38, 243, 319). Although agents rotate between the different posts at the checkpoint during a shift, the additional primary inspection lane increased the number of primary inspection posts included in the rotation. (Tr. 157-58, 190‑91, 237‑38, 333). Thus, while the length of an agent’s daily shift has not changed, the number of primary inspection rotations an employee must complete within the shift has increased. (Tr. 157-58, 190-91, 237-38, 333). Although the testimony varied about the exact increase in the number of minutes spent performing primary inspections. (Tr. 188‑89, 218, 237-38, 319, 355-56, 367), I find that the January 2010, change increased the amount of time agents spend conducting primary inspections by at least thirty to sixty minutes per shift. (Tr. 218, 319). This finding is consistent with the Respondent’s acknowledgement in its brief that “use of the second primary lane has increased the total amount of time agents spend conducting primary inspections by 30 minutes to an hour.” (Resp. Br. at 9).
Another effect of the January 2010, change is an increase in the amount of time agents are exposed to the sun and elements. Agents conducting primary inspections in the inside lane near the newly installed booth spend more time in the sun than when they conducted all primary inspections in the outer lane. (G.C. Ex. 2-C; Tr. 35-36, 154-157, 203-04, 230-31, 296, 315). Agents conducting primary inspections in the inside lane are permitted to stand under the canopy, but that requires standing in the active traffic lane itself. (G.C. Ex. 2-F; Tr. 156, 207-08, 255-56). In contrast, when all primary inspections were conducted in the outer lane, agents could stand near the booth between the lanes and conduct inspections under the shade of the canopy. (Tr. 36-37, 155-57, 203-04). During the summer, temperatures at the checkpoint can be as high as 110 degrees Fahrenheit. (Tr. 169).
The regular use of the inside lane to conduct primary inspections also resulted in a relocation of the I-10 checkpoint’s pursuit vehicle. In the event that a vehicle bypasses the checkpoint or leaves the checkpoint before an inspection is complete, agents use the pursuit vehicle to apprehend the suspect. (Tr. 38, 149). Usually there are two agents in the pursuit vehicle when it is used. (Tr. 151). Given the purpose of the pursuit vehicle, it is important that agents have rapid access to the vehicle. (Tr. 38). Before the January 2010, change the pursuit vehicle was parked in the inside lane that is now being used for primary inspections. (Tr. 40, 146, 227, 250, 290, 413). Since the January 2010, change the pursuit vehicle is usually parked in one of two locations: either between the two primary inspection lanes (G.C. Ex. 2-L, 3-B, 3-H, 3-J, 3-L; Tr. 39, 228-29, 250-51, 290), or near the main building adjacent to the two lanes of active traffic. (G.C. Ex. 2-K; Tr. 146, 290). When the pursuit vehicle is parked near the main building, its exit may be obstructed by vehicles parked in that area for secondary inspections. (Tr. 154, 184‑85, 290-91). Both of the new locations require the driver of the pursuit vehicle to merge traffic in one of the primary inspection lanes. (Tr.38). Ideally, traffic from both primary inspection lanes is halted when agents need to use the pursuit vehicle. (Tr. 152-53, 178, 187, 229, 402). However, given the exigency of the circumstances, and the fact that drivers do not always notice and obey the agents, there is not always time for agents to stop all traffic before another agent utilizes the pursuit vehicle. (Tr. 152, 197‑98, 229, 252-53, 319-20, 415). Further, there is no arm or bollard available to stop traffic in the two primary inspection lanes. (Tr. 39, 153).
Agents testified that the new locations for the pursuit vehicle posed safety concerns. For example, because the agent using the pursuit vehicle often comes from the main building, he or she is now required to cross active traffic in the inside lane to get to the pursuit vehicle when it is parked between the primary inspection lanes. (Tr. 39‑40, 55, 150-51, 153, 229, 251-52, 291, 416). Agents did not have to cross an active lane of traffic to get to the pursuit vehicle from the main building when the vehicle was parked in the inside lane.[1] (Tr. 55, 290). If one of the agents conducting primary inspections operates the pursuit vehicle, an agent from the main building has to cross traffic to take the departing agent’s place on the inspection line. (Tr. 150-51, 184). In addition, because of the close proximity of active traffic in the lanes to the pursuit vehicle, agents expressed concern about colliding with traffic when opening the doors of the pursuit vehicle. (Tr. 151, 154, 251).
In addition to concerns about crossing active traffic to access the pursuit vehicle, some agents testified that they forget that the inside lane is now an active lane, and risk walking into traffic. (Tr. 158, 300-01). In this regard, several agents testified about instances where agents were almost hit by oncoming traffic in the inside lane. (Tr. 158-59, 200, 253‑54, 269-70, 301‑02). After the January 2010, change the Respondent attempted to address this concern by installing chains between the barriers that stood between the main building and the inside lane. (Tr. 173-74, 183-84, 204-05). Agents also expressed concern that the proximity of active traffic to the entrance of the main building and to the area where secondary inspections are conducted posed additional risk to agents’ safety. (Tr. 27-28, 41-42, 230, 232-33, 240, 256-57).
On January 18, 2011, an Occupational Safety and Health inspection was conducted at the I-10 checkpoint. (Resp. Ex. O). None of the unsafe or unhealthful conditions identified in the inspection report are related to the concerns raised by agents in this case. (Resp. Ex. O; Tr. 499).
The Respondent’s witnesses testified that conducting primary inspections in two lanes has improved operations at the I-10 checkpoint. (Tr. 354, 439-40). Specifically, because there are fewer traffic back-ups, the Respondent flushes traffic far less frequently. (Tr. 363-64). For example, a witness who worked as an agent out of the Las Cruces Station for eleven years, and currently works as a supervisor at the I-10 checkpoint two to three times a week, testified that flushing occurred approximately every fifteen or twenty minutes prior to the change, but now only occurs approximately once per week. (Tr. 363-64). This means that far more vehicles are inspected. (Tr. 439-40, 489). Also, because the new configuration causes fewer back-ups, it increases highway safety because back-ups had resulted in accidents. (Tr. 354, 356, 489).
In addition, Respondent’s witnesses testified that if the I-10 checkpoint reverted to having only one primary inspection lane, then the checkpoint would not be operationally efficient. (Tr. 440, 503). For example, the assistant patrol agent in charge at Las Cruces Station, Garth Rogers, testified that if the Respondent stopped using the second primary inspection lane at the checkpoint, “instead of conducting our Agency mission, we’d be back out there trying to manage traffic and trying to mitigate public safety.” (Tr. 503).
DISCUSSION
Positions of the Parties
General Counsel
The General Counsel contends that the Respondent violated § 7116(a)(1) and (5) by directing agents to regularly conduct primary inspections in the inside lane of the I-10 checkpoint, thereby changing bargaining unit employees’ conditions of employment – without providing the Union notice and an opportunity to bargain. The General Counsel argues that the increase in agents’ primary inspection duties alteration of their work environment, and the increase in the safety risks created by the change, had a more than de minimis impact on employees’ conditions of employment. The safety risks cited by the General Counsel include: agents’ increased exposure to the sun and elements when working in the inside lane requires them to stand outside of the protection provided by the canopy’s protection; the hazards posed by the new location of the pursuit vehicle; the close proximity of active lanes of traffic to the main building and secondary inspection areas; and agents’ increased risk of being struck by active traffic.
In addition, the General Counsel disputes the Respondent’s contention that the subject matter of the January 2010, change is covered by Article 17 of the parties’ collective bargaining agreement (CBA). Specifically, the General Counsel argues that Article 17, “which generally provides a non-exclusive procedure for addressing health and safety concerns,” does not concern checkpoints or waive the Union’s right to notice and an opportunity to bargain over changes to employees’ conditions of employment at checkpoints. (G.C. Br. at 26).
As a remedy, the General Counsel seeks status quo anterelief. Specifically, it asks that the Respondent cease conducting primary inspections in the inside lane at the I‑10 checkpoint until the Respondent has fulfilled its bargaining obligations. In accordance with Fed. Corr. Inst., 8 FLRA 604 (1982) (FCI), the General Counsel asserts that the factors relevant to the appropriateness of status quo anterelief weigh in its favor of its use in this case because the Respondent provided no notice, thereby effectively denying the Union the opportunity to bargain. Furthermore, the Respondent’s action was willful, the change imposed a significant adverse impact upon employees’ safety, and rescinding the change would not disrupt or impair the Respondent’s operations because some traffic is flushed whether there are one or two primary inspection lanes.
Finally, the General Counsel asks that notice of the violation be posted on bulletin boards and circulated via email throughout the Respondent’s El Paso Sector. The GeneraL Counsel acknowledges that the Authority has repeatedly overturned email distribution of notice because it constitutes a nontraditional remedy under the Authority’s decision in F.E. Warren AFB, Cheyenne, Wyo., 52 FLRA 149, 161 (1996) (F.E. Warren AFB); (G.C. Br. at 30). However, the General Counsel argues that distribution of the notice by email would effectuate the purposes and policies of the Statute, whereas limiting the posting to traditional bulletin boards would not.
Respondent
As a preliminary matter, the Respondent asserted in its Answer, but not in its post‑hearing brief, that the subject matter of this case was previously raised in an employee grievance.
Regarding the merits of the case, the Respondent contends that it did not violate the Statute because the regular use of the inside lane for primary inspections did not change employees’ conditions of employment since agents had previously conducted primary inspections in the inside lane. The Respondent asserts that the increased use of the inner lane that started in January 2010, was not a change. In addition, the Respondent argues that the increase in the number of primary inspection rotations each agent performs has not changed anything about how primary inspections are conducted, and did not require agents to obtain additional training, work longer shifts, or perform more overtime. In this regard, the Respondent argues that “[a]n increase in the amount of work, versus a change in the type of work, does not constitute a change in conditions of employment.” (Resp. Br. at 20 & n.9 (citing U.S. DHS, Border & Transp. Sec. Directorate, U.S. Customs & Border Prot., Border Patrol, Tucson Sector, Tucson, Ariz., 60 FLRA 169, 173-74 (2004) (DHS Tucson); U.S. Dep’t of VA, Med. Ctr., Sheridan, Wyo., 59 FLRA 93 (2003) (Veterans Med. Ctr.); U.S. Dep’t of the Air Force, Headquarters, 96th Air Base Wing, Eglin AFB, Fla., 58 FLRA 626, 630 (2003) (Air Force)).
The Respondent also asserts that regular use of the second primary lane does not make the I-10 checkpoint unsafe. In support of that position, the Respondent cites the January 2011, safety inspection which found no unsafe conditions related to the regular use of the inside lane for primary inspections. In response to the agents’ complaints of increased exposure to the sun and elements, the Respondent contends that agents have always had to work outside the canopy to conduct bus inspections, that the canopy does not provide complete protection from the elements, and that agents conducting primary inspections at the inside lane have the ability to perform their work under the canopy. Regarding the pursuit vehicle, the Respondent argues that agents can stop traffic before proceeding to the pursuit vehicle and that agents can direct any vehicles obstructing the use of the pursuit vehicle to move. The Respondent addresses the alleged risks concerning additional lanes of traffic by asserting that agents’ duties have always required them to safely traverse active lanes of traffic.
Assuming that the Respondent changed conditions of employment, the Respondent submits that the impact of any such change was de minimisbecause the change has not required agents to perform any new types of duties and the Respondent has alleviated any workload or safety concerns created by the regular use of the inside lane for primary
inspections. In this regard, the Respondent notes that it added the second booth to protect agents from the elements, and installed chains between the barriers located between the main building and the inside lane in response to the agents’ safety concerns.
Alternatively, the Respondent argues that it is not required to bargain over the regular use of the inside lane for primary inspections because any safety concerns related to that change are “covered by” Article 17 of the parties’ CBA. Pursuant to Article 17, the Respondent has agreed to “provide safe and healthful working conditions, taking into account the mission of the [Respondent] and the inherent hazards of the job performed.” (Resp. Ex. A at 25). Article 17 also created a Health and Safety Committee comprised of management and Union representatives. (Id.). Article 17 provides that if an employee observes an unsafe condition, the employee shall report it to this committee. (Id. at 26). Article 17 also provides that if an employee believes he or she is being required to work under unsafe or unhealthy conditions, the employee shall report the matter to his or her supervisor. (Id. at 27). According to the Respondent, because the alleged changes to employees’ conditions of employment concern employee safety, “Article 17 covers the subject to be bargained and precludes further bargaining.” (Resp. Br. at 28).
The Respondent contends that although “[t]he Union was not formally notified that the second lane would be used more often for primary inspections[,]” James Stack was the local Union representative designated to receive notice and knew about the Respondent’s testing use of the inside lane as of November 19, 2009. (Id.). Because Stack did not demand to bargain over use of the inside lane for primary inspections within ten days of hearing about the testing, the Respondent asserts that the Union waived its right to bargain.
On the question of a remedy for any unfair labor practice, the Respondent insists that status quo anterelief would be inappropriate because it would severely disrupt and impair the efficiency and effectiveness of the I-10 checkpoint operations. The Respondent asserts that reverting to a single lane for primary inspections would severely hamper the Respondent’s ability to complete its mission because agents would have to flush traffic much more frequently to avoid traffic back-ups. Because back-ups jeopardize the safety of the traveling public, reverting to a single lane would require agents to focus their efforts on traffic management rather than inspecting as many vehicles as possible. In light of the Respondent’s mission to detect, prevent, and deter threats to the United States posed by illegal aliens, illegal narcotics, terrorist weapons, and other illegal activity, the Respondent contends that status quo anterelief would severely disrupt the operations conducted at the I-10 checkpoint and thus is not appropriate under the FCI factors.[2]
Finally, the Respondent argues that any notice posting should be limited to bulletin boards because the General Counsel has not established that the nontraditional remedy of email dissemination is warranted under the Authority’s decision in F.E. Warren AFB. Further, the Respondent argues that any notice should be posted at only the Las Cruces Station, rather than throughout the El Paso Sector.
CONCLUSIONS OF LAW
Preliminary Matter
The Respondent asserted in its Answer that the subject matter of this case was previously raised in an employee grievance. However, at the hearing, the Respondent did not introduce any evidence in support of this argument and does not mention this defense in its post-hearing brief. Accordingly, I find this unsupported argument is without merit.
The Respondent Changed Conditions of Employment
Prior to implementing a change in conditions of employment, an agency is required, by § 7116(a)(1) and (5) of the Statute, to provide the exclusive representative with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain, if the change will have more than a de minimis effect on conditions of employment. See, e.g., U.S. Dep’t of the Air Force, AFMC, Space & Missile Sys. Ctr. Detachment 12, Kirtland AFB, N.M., 64 FLRA 166, 173 (2009) (Kirtland AFB). In such cases, when an agency exercises a reserved management right and the substance of the decision is not itself within the duty to bargain, the agency nonetheless has an obligation to bargain over the procedures to be used in implementing the decision and appropriate arrangements for employees adversely affected by the decision. See, e.g., U.S. Dep’t of the Treasury, IRS, 62 FLRA 411, 414 (2008).
There is no assertion, or other basis on which to conclude that the decision to regularly conduct primary inspections in the inside lane at the I-10 checkpoint does not come within the definition of conditions of employment under § 7103(a)(14) of the Statute. Rather, the Respondent disputes only whether a change in conditions of employment occurred that triggered notice and a bargaining obligation.
The determination of whether a change in conditions of employment occurred involves an inquiry into the facts and circumstances regarding the Respondent’s conduct and employees’ conditions of employment. 92 Bomb Wing, Fairchild AFB, Spokane, Wash., 50 FLRA 701, 704 (1995) (Fairchild AFB). As discussed above, I find that although the inside lane may have been used for primary inspections on isolated occasions or during special operations, (Tr. 344, 359, 403, 474), primary inspections were not regularly conducted within the inside lane on a daily basis until January 2010. (Tr. 138, 141-42, 193, 195, 225, 227, 341, 360‑61). As a direct result of the Respondent’s decision to conduct primary inspections in both the inner and outer lanes for ten to sixteen hours per day beginning on, or about, January 3, 2010 (Tr. 211, 244, 330, 354, 491, 495, 513-14), I find that agents spend a larger percentage of their shifts conducting primary inspections. (Tr. 89-90, 157-58, 188-89, 218, 230, 237-38, 243, 319). Specifically, because the additional primary inspection lane resulted in the Respondent increasing the number of primary inspection posts, agents must perform more primary inspection rotations per shift. (Tr. 157-58, 190‑91, 237‑38, 333). Therefore, I find that agents spend at least thirty to sixty more minutes per shift conducting primary inspections as a result of the January 2010 change. (Resp. Br. at 8-9; Tr. 218, 319). Accordingly, by requiring regular use of the inner lane for primary inspections, and thereby adding primary inspection posts to the rotation, the Respondent “imposed a practice that was different from what previously existed and, consequently, constituted a change in conditions of employment.” Fairchild AFB, 50 FLRA at 704.
The Respondent argues that “[a]n increase in the amount of work, versus a change in the type of work, does not constitute a change in conditions of employment.” (Resp. Br. at 20 & n.9) (citing DHS Tucson, 60 FLRA at 173-74; Veterans Med. Ctr., 59 FLRA at 93; Air Force, 58 FLRA at 630). But this argument misconstrues both the nature of the changes, and the holding of the decisions cited. As a direct result of the Respondent’s decision to double the number of lanes in which primary inspections are conducted and increase the number of primary inspection rotations, agents must perform more primary inspection rotations per shift. Thus, the consequence of the Respondent’s change is not merely an increase in the amount of work, but a restructuring of the agents’ workday and workload so that more of their time during a given shift is spent conducting primary inspections and less in devoted to performing other duties. Moreover, the three decisions cited by the Respondent each state that an increase in the amount of work that cannot be attributed to any change in an agency’s policy or practice does not establish that an agency changed conditions of employment. DHS Tucson, 60 FLRA at 173 (no evidence that the agency “promulgated any policy or took any action that resulted” in the increased work); Veterans Med. Ctr., 59 FLRA at 94-95 (no change in the agency’s policy related to increased work); Air Force, 58 FLRA at 630 (challenged personnel change did not cause increased work). Thus, those decisions are inapposite in this case, where it was the Respondent’s action in opening a second primary inspection lane that directly caused agents to spend a larger percentage of their shifts conducting primary inspections.
Furthermore, the impact of the Respondent’s change was not limited to the number of primary inspection rotations conducted by agents. As a result of the change, agents spend more time in the sun than before the change because the inner lane, particularly the section of the inner lane adjacent to the booth the Respondent installed post implementation, is not within the shade provided by the canopy. (G.C. Ex. 2‑C, 2-F; Tr. 35-36, 154-157, 203-04, 230-31, 255-56, 296, 315). Although the Respondent asserts that agents conducting primary inspections in the inside lane are free to perform their work within the shade of the canopy, I credit agents’ testimony that doing so would require them to stand in, or much closer to, an active lane of traffic. (Tr. 156-57, 255-56). Because agents did not previously have to choose between the safety of standing by a booth, and the comfort of standing under the shade of the canopy, the Respondent’s decision to conduct primary inspections within the inner lane altered the agents’ conditions of employment with regard to their exposure to the sun and elements.
In addition, the Respondent’s change increased the hazards imposed upon agents during their shift. For example, regular use of the inside lane for primary inspections resulted in the Respondent relocating the pursuit vehicle previously parked in the inner lane and the new locations require agents to navigate active lanes of traffic in a quickly developing pursuit situation in ways not previously required. (Tr. 38‑40, 55, 150-51, 153-54, 229, 251-52, 291, 416). While the agents’ duties required them to occasionally cross lanes of active traffic prior to the change, that hazard was increased significantly post implementation of the second primary inspection lane and the hazard is further magnified when an agent must rapidly cross an active lane of traffic to access the pursuit vehicle in time to apprehend a suspect fleeing or bypassing the checkpoint. Furthermore, the increased exposure to this hazard is also aggravated by the reality that drivers do not always notice and obey agents attempting to stop traffic and there is not always time for agents to stop all traffic before their fellow agents operate the pursuit vehicle. (Tr. 152, 197‑98, 229, 252-53, 319-20, 415).
While the parties’ disagree about the seriousness of the risk posed by having active lanes of traffic in closer proximity to the main building and secondary inspection areas, the change clearly altered the agents’ work environment and that alteration flows directly from the Respondent’s decision to regularly conduct primary inspections within the inner lane.
Accordingly, I find that the Respondent changed the agents’ conditions of employment by regularly conducting primary inspections within the inside lane, thereby doubling the number of active primary inspection lanes. This change increased the number of primary inspection rotations performed by agents during a shift, increased their exposure to sun and the elements, necessitated relocation of the pursuit vehicle to spots that are more hazardous, and introduced new or increased hazards resulting from active lanes of traffic being moved closer to the main building and secondary inspection areas.
The parties do not dispute that the Respondent was entitled to change I-10 checkpoint operations pursuant to the management rights granted by § 7106 of the Statute. However, if the foreseeable effects of such changes have more than a de minimis impact upon employees, the Respondent is required to provide the Union with notice and an opportunity to bargain concerning the impact and implementation of those changes. Having found that the Respondent changed conditions of employment for bargaining unit employees, the analysis turns to the nature and extent of the effects of those changes.
The Changes Were More than De Minimis
In applying the de minimis doctrine, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employees’ conditions of employment. U.S. Dep’t of the Air Force, 355th MSG/CC, Davis‑Monthan AFB, Ariz., 64 FLRA 85, 89 (2009) (citing Veterans Admin. Med. Ctr., Phx., Ariz., 47 FLRA 419, 423 (1993)). Much of the evidence cited above in support of the conclusion that the Respondent changed employees’ conditions of employment also supports the conclusion that the changes were more than de minimis.
As discussed above, the Respondent’s decision to double the number of lanes in which primary inspections are conducted increased the number of primary inspection rotations agents must perform with a shift. This has increased the amount of time each agent must conduct primary inspections by thirty to sixty additional minutes per shift, and reduces the amount of time they have to perform other duties by a commensurate amount of time. The Respondent’s decision to conduct primary inspections within the inside lane and the placement of the newly installed booth also increased the amount of time agents are exposed to the sun and elements. This is because agents who choose to conduct primary inspections next to the booth, as they are able to do when conducting inspections in the outer lane, are not covered by the canopy overhanging the I-10 checkpoint. In a work environment where outdoor temperatures can reach 110 degrees Fahrenheit (Tr. 169), the impact of this loss of shade is more than negligible.
Further, the Respondent’s decision to conduct primary inspections within the inside lane resulted in the relocation of the pursuit vehicle. The new locations of the pursuit vehicle require agents who are operating in a quickly developing pursuit situation to manage and navigate active lanes of traffic in a manner not previously required. The fact that agents’ regular duties required them to occasionally cross lanes of traffic prior to the relocation of the pursuit vehicle does not negate the hazard imposed by routinely requiring them to cross active lanes of traffic, or having them do so in time‑sensitive pursuit situations.
The Respondent’s decision to regularly conduct primary inspections in the inside lane has also raised safety concerns for agents stemming from closer proximity of traffic to the main building (Tr. 27-28, 230, 240), and secondary inspection areas (Tr. 41-42, 232-33, 256-57). For example, several agents testified about instances where agents were almost hit by oncoming traffic utilizing the inside lane. (Tr. 158-59, 200, 253‑54, 269-70, 301‑02). Although the Respondent attempts to minimize these concerns, it acknowledged their legitimacy by addressing the risk with the installation of chains between the barriers that are adjacent to the inner lane. (Tr. 173, 183-84, 204-05). The Respondent’s subsequent efforts to reduce the risk by installing chains after the January 2010, change contradicts their argument that the impact was de minimis when the regular use of the inside lane was initiated. One does not have to cure the impact of a de minimis action.
While it is not clear that standing alone, each of the effects discussed above would establish that the Respondent’s changes were more than de minimis, in evaluating their cumulative impact, I find that the effects of the change unilaterally implemented by the Respondent were more than de minimis. Cf. U.S. Dep’t of HHS, SSA, Balt., Md., 41 FLRA 1309, 1318 (1991) (no new duties, but change in manner of distributing work greater than de minimis). U.S. Dep’t of Def., Dep’t of the Air Force, Air Force Logistics Ctr., Tinker AFB, Okla., 25 FLRA 914, 917-18 (1987). In terms of totality, the changes to agents’ work environment were more comprehensive than those which occurred in U.S. Dep’t of HHS, SSA, Baltimore, Md., 36 FLRA 655, 668-69 (1990) (four employees had their desks moved about 50 feet within the same office and one of those employees lost access to a window), Pension Benefit Guar. Corp., 59 FLRA 48, 51-52 (2003) (two employees reassigned to smaller offices and lost access to a window),and in Kirtland AFB, 64 FLRA at 173-74 (single employee relocated from two offices to single, more cramped office). Accordingly, I conclude that the Respondent’s changes to the bargaining unit’s conditions of employment had reasonably foreseeable effects that exceeded the de minimis exception to the obligation to provide notice and opportunity to bargain over such changes.
The Changes Were Not “Covered By” Article 17 of the CBA
The Respondent argues that any alleged changes to conditions of employment were covered by Article 17 of their CBA. The covered by defense is available to a party claiming that it is not obligated to bargain because it has already bargained over the subject at issue. U.S. Dep’t of Energy, W. Area Power Admin., Golden, Colo., 56 FLRA 9, 12 (2000). The covered by defense consists of two prongs. U.S. Customs Serv., Customs Mgmt. Ctr., Miami, Fla., 56 FLRA 809, 813-14 (2000) (Customs). Under the first prong, a party properly may refuse to bargain over a matter that is expressly addressed in the parties’ agreement. (Id.). Under the second, a party properly may refuse to bargain if a matter is inseparably bound up with, and thus an aspect of, a subject covered by the agreement. (Id.).
The Respondent does not clarify which prong of the covered by defense it asserts, but acknowledges that “[t]he collective bargaining agreement does not address checkpoint operations or the number of lanes at checkpoints[.]” (Resp. Br. at 26). Thus, I find that daily use of the second inside land for primary inspections is not expressly addressed in the parties’ agreement, and therefore, the first prong of the covered by defense is inapplicable. Customs, 56 FLRA at 813-15.
Regarding the second prong, the Respondent claims that it has no duty to bargain “because the alleged impact of [the regular use of the second primary lane] . . . is limited to safety issues, which are covered by Article 17 of the collective bargaining agreement.” (Resp. Br. at 28). This defense fails in two respects. First, the Respondent’s assertion that the only impact of the January 2010, change concerns safety issues is incorrect. As discussed above, the Respondent’s decision to double the number of primary inspection lanes and thereby increase the number of primary inspection rotations per shift, has more than a de minimis effect on agents’ conditions of employment in ways completely unrelated to safety. Second, the number of primary inspection lanes at a checkpoint is neither inseparably bound up with nor an aspect of Article 17, which addresses workplace safety. In this regard, there is no evidence in the record that the parties contemplated that any changes to checkpoint operations with employee safety implications were negotiated as a consequence of agreeing that: (1) the Respondent would provide a safe and healthful working environment; (2) the parties would form a Health and Safety Committee; and (3) an employee observing unsafe working conditions should report those conditions to the committee and his or her supervisor. (Resp. Ex. A at 25-27). Thus, the Respondent has not shown that the subject of adding a second primary inspection lane is inseparably bound up with Article 17. See SSA, 64 FLRA 199, 202 (2009) (subject matter must be more than tangentially related to a contract provision in order to establish second prong of the covered by defense).
Accordingly, I conclude that Article 17 did not relieve the Respondent of its statutory obligation to provide the Union with notice and an opportunity to bargain over its decision to regularly use the inside lane for primary inspections.
The Union Did Not Waive the Right to Bargain
The Respondent argues that the Union waived its right to bargain because James Stack, the local Union representative designated to receive notice did not demand to bargain over the use of the inside lane for primary inspections within ten days of learning about the November 2009, testing of a second lane. However, as the Respondent conceded at the hearing, the defense “based on timeliness[]” was withdrawn at the prehearing conference. (Tr. 13-14).
Moreover, I find that while Stack may have heard about the dual lane test from the bargaining unit employees he represents, he was never given notice or informed by the Respondent that the testing could result in regular use of the inside lane as a second primary inspection lane. Thus, his learning about the test from bargaining unit employees does establish that the Union had notice of an impending change, let alone the scope, nature, certainty, or planned timing of such a change. In order to fulfill its statutory obligation, the Respondent’s notice of the proposed change to conditions of employment would need to be “sufficiently specific or definitive regarding the actual change contemplated so as to adequately provide the union with a reasonable opportunity to request bargaining.” Ogden Air Logistics Ctr., Hill AFB, Utah, 41 FLRA 690, 698 (1991). In this regard, the Authority has held that the notice must apprise the union of the scope and nature of the proposed change, the certainty of the change, and the planned timing of the change. (Id. at 699). There is no evidence in the record that Stack received any notice from the Respondent, let alone notice that satisfied the requirements of specificity and definitiveness cited above. Therefore, the Union did not waive the right to bargain.
Remedy
Where an agency has changed a condition of employment without fulfilling its obligation to bargain over the impact and implementation of that decision, the Authority applies the criteria set forth in FCI to determine whether a status quo anteremedy is appropriate. The purpose of a status quo anteremedy is to place parties, including employees, in the positions they would have been in had there been no unlawful conduct. Dep’t of VA Med. Ctr., Asheville, N.C., 51 FLRA 1572, 1580 (1996). Other “traditional” remedies, including retroactive bargaining orders and cease and desist orders accompanied by the posting of a notice to employees are also available. See F.E. Warren AFB, 52 FLRA at 161.
To remedy the Respondent’s unfair labor practice, I find that a cease and desist order that mandates bargaining and requires posting of a notice is appropriate. However, the appropriateness of a status quo ante order that would require the Respondent to cease use of the inside lane as a second primary inspection lane and to revert to conducting primary inspections in the single outer traffic lane until it has negotiated over the impact and implementation of a second primary inspection lane is a closer question. As the Authority explained in FCI, determining the appropriateness of status quo anterelief requires, “on a case-by-case basis, carefully balancing the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy.” 8 FLRA at 606 (footnote omitted). Accordingly, in determining whether a status quo ante remedy would be appropriate, 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 agency’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).
The first three FCI factors weigh in favor of status quo anterelief in this case. The Respondent did not notify the Union in advance of its plan to regularly conduct primary inspections in the inner lane at the Las Cruces Station. Thus, because the Union did not learn of the change until it was already in effect, the Respondent’s actions denied the Union its statutory right to bargain over the impact and implementation prior to the change in unit employees’ conditions of employment. The willfulness of the Respondent’s violation is underscored by the amount of time and planning that preceded implementation of the change. In this regard, the record reflects that in the months leading up to the change, the Respondent communicated regularly with the NM DOT about its plans, conducted tests, and prepared an internal document outlining the benefits the change would have upon operational efficiency and effectiveness. (Resp. Ex. H; Tr. 435-38, 476, 494, 504-07, 519-22). Despite this extensive planning process, the Respondent failed to provide the Union with notice of its plans for the I-10 checkpoint at the Las Cruces Station. Further, implementation of this plan was an intentional action and when an agency’s failure to discharge its bargaining obligation under the Statute is intentional, the agency’s refusal to bargain is willful, even if based upon an erroneous conclusion that there was no bargaining obligation. U.S. Dep’t of the Army, Lexington-Blue Grass Army Depot, Lexington, Ky., 38 FLRA 647, 649 (1990).
The fourth FCI factor is less persuasive in assessing the merit of a status quo ante remedy. I conclude that the cumulative effect of the changes made at the checkpoint were more than de minimis, they are also far from onerous. While the additional primary inspection rotations, increased exposure to the sun and the elements, and increased hazards posed by the relocation of the pursuit vehicle and moving active lanes of traffic in closer proximity to the station have a real and tangible impact on the agents, however, in balancing the potential benefit status quo ante relief would provide employees against the potential disruption such relief would have upon Respondent’s inspection operations, I find the impact of the change upon bargaining unit employees less compelling.
For those impacts that can be mitigated, the Union can protect the agents’ legitimate concerns with prospective bargaining, and for those that can’t, rescinding the changes only to reinstated at the conclusion of bargaining does not offer much in the way of benefit to the affected agents and could wind up being detrimental to their safety. For example, some agents testified about increased concerns of being hit by oncoming vehicles because they forget that the inside lane is now an active lane of traffic. (Tr. 158, 300‑01). Because adapting to this and other potential hazards imposed by the change requires that agents become accustomed to use of the inside lane for primary inspections, status quo anterelief would only temporarily negate a change to which they must ultimately adapt, and thus, would promote a return to habits that would only exacerbate the hazard upon subsequent implementation. Additionally, it is noteworthy that a safety and health inspection conducted approximately one year after the change went into effect found no unsafe conditions related to the regular use of the inside lane for primary inspections. (Resp. Ex. O).
Regarding the fifth FCI factor, I find that the Respondent has demonstrated that a status quo anteremedy would result in significant disruption to the efficiency and effectiveness of the I-10 checkpoint inspections conducted at the Las Cruces Station. In this regard, the Respondent’s mission is to detect, prevent, and deter threats to the United States posed by illegal aliens, illegal narcotics, terrorist weapons, and other illegal activity. This mission is accomplished in part, by inspecting as many westbound vehicles on I-10 as possible within the agency’s manpower and budgetary constraints. In order to meet this objective, the I-10 checkpoint is typically open 24 hours a day, 365 days a year, and the volume of traffic flowing through the checkpoint runs between 9,000 and 15,000 vehicles a day with no signs of decreasing. (Resp. Ex. H at 1; Tr. 496-97). Because traffic back-ups jeopardize the safety of the traveling public, the Respondent must flush traffic through the I-10 checkpoint without inspection when the flow of traffic is heavy enough to create a long line of vehicles awaiting inspection. However, to effectively accomplish its mission, it is imperative that the Respondent flush traffic as infrequently as possible. As the record makes clear, conducting primary inspections in the inner and outer lane at the I-10 checkpoint reduces traffic back-ups and the Respondent flushes traffic far less frequently when both lanes are operational, which subjects more vehicles to full inspection. (Tr. 363-64, 439-40, 489). For example, a witness who has worked as an agent out of the Las Cruces Station for eleven years testified that traffic flushing occurred approximately every fifteen or twenty minutes prior to the change, and now occurs approximately once per week. (Tr. 363-64). This dramatic difference in the rate traffic is flushed strongly supports the testimony of Garth Rogers, assistant patrol agent in charge at the Las Cruces Station, who testified that if the Respondent stopped using the second primary inspection lane at the checkpoint, “instead of conducting our Agency mission, we’d be back out there trying to manage traffic and trying to mitigate public safety.” (Tr. 503).
Therefore, despite the willfulness of the Respondent’s violation of the Union’s notice and bargaining rights, I conclude that the disruption to the efficiency and effectiveness of the Respondent’s border inspection operations and the protection such inspections provide to the general public, outweighs the adverse impact that continuation of primary inspections in the inside lane would have upon bargaining unit employees during the course of impact and implementation bargaining. Therefore, a status quo ante order is not an appropriate remedy under the specific facts of this case. However, the Respondent must still bargain with the Union over the impact and implementation of the changes and post a notice informing employees of their violation and intent to comply with the requirements of the Statute.
Regarding the notice, the General Counsel asks that notice of the violation be posted on bulletin boards and circulated via email throughout the Respondent’s El Paso Sector. However, the Respondent argues that any notice posting should be limited to bulletin boards, and should be posted at only the Las Cruces Station.
Each party introduced evidence at the hearing concerning the methods of communication between the Respondent and its agents. The General Counsel refers to examples of email communications between the Respondent and its agents (G.C. Ex. 6-11, 13‑14), and emphasizes testimony that agents check their email daily. (Tr. 234-35, 258-59, 326‑27). In contrast, the Respondent relies on testimony that bulletin boards are one of the Respondent’s primary methods for communicating with agents (Tr. 501-02), and that bulletin boards at the Las Cruces Station are located in the muster area where all agents must congregate at the beginning of each shift to be briefed on work-related issues. (Tr. 325-26, 502).
The Authority has determined that the electronic posting of a notice is a nontraditional remedy. U.S. DOJ, Fed. BOP, Fed. Corr. Inst., Florence, Colo., 59 FLRA 165, 174 (2003) (FCI). When there are no legal or public policy objections to a proposed nontraditional remedy, use of such a remedy must be reasonably necessary and effective to recreating the conditions and relationships with which the unfair labor practice interfered, as well as to effectuate the purposes and policies of the Statute, including the deterrence of future violations. F.E. Warren AFB, 52 FLRA at 161. Further, nontraditional remedies will be fashioned only where traditional remedies will not adequately redress the wrong incurred by the unfair labor practice. Fed. BOP, Wash., D.C., 55 FLRA 1250, 1259 (2000); U.S. Dep’t of Commerce, Nat’l Oceanic & Atmospheric Admin., Nat’l Ocean Serv., Coast & Geodetic Survey Aeronautical Charting Div., Wash., D.C., 54 FLRA 987, 1021-23 (1998).
The General Counsel states that it is notseeking email notice distribution as an “extraordinary remedy[ ]” or claiming that its request for email notice is “warranted by extraordinary circumstances . . . .” (G.C. Br. at 32). Rather, the General Counsel argues that email distribution is appropriate under the Statute and Authority doctrine. (Id.). However, I find that the General Counsel did not introduce sufficient evidence to support its contention that posting to traditional bulletin boards would not adequately redress the wrong or sufficiently effectuate the purposes and policies of the Statute. The General Counsel’s evidence on this point was limited to the testimony of Union president Stack, who has never worked at the I-10 checkpoint. (Tr. 77). Although Stack testified that traditional bulletin boards are becoming obsolete (Tr. 96-97, 116), he also admitted that the Union maintains a bulletin board at the Las Cruces Station with notices of its monthly meetings and other general information. (Tr. 115). Given the evidence in the record that the Respondent uses email and bulletin boards to communicate with its agents, the findings mandated in the F.E. Warren AFB case cannot be made under the evidence in this record, thus, ordering a nontraditional remedy is not appropriate.
The General Counsel argues that when email is customarily used to communicate with employees, a posting of notice using email is not an extraordinary remedy, citing the NLRB’s adoption of that position in 2010. J. Picini Flooring, 356 NLRB No. 9 (2010). However, it must be pointed out that an Administrative Law Judge for the Authority reached that same conclusion in 2003, only to have his imposition of electronic notice rejected under the F.E. Warren AFB analysis. FCI Florence, 59 FLRA at 165. Although the Authority recently assumed without deciding that email dissemination of a notice is a nontraditional remedy, that assumption was unnecessary given the clear guidance set forth in the FCI Florence decision. U.S. DHS, U.S. CBP, El Paso, Tex.,67 FLRA 46 (2012) (BOP El Paso). While the Authority determined that email dissemination was appropriate in BOP El Paso, it did so by applying the precedent set forth in F.E. Warren AFB, thus, F.E. Warren AFB remains the guiding precedent within Authority despite the prevalence of email within the federal workforce and its customary use. Absent clear declaration from the Authority that availability and customary use of email is sufficient to merit dissemination of notice in that manner, establishing nothing more in the record than availability and customary use of email within an agency is not sufficient evidence to merit an order directing the use of email to disseminate a notice of violation.
Regarding the scope of the posting, the Authority determines the scope of posting by considering the two purposes served by the posting of a notice. SSA, Balt., Md., 60 FLRA 674, 681 (2005) (SSA Hearings). First, the notice provides evidence to unit employees that the rights guaranteed under the Statute will be vigorously enforced. (Id.). Second, in many cases the posting is the only visible indication to those employees that a respondent recognizes and intends to fulfill its obligations under the Statute. (Id.). In applying this test, a relevant factor is what office in the respondent’s leadership structure was involved in the statutory violations. See U.S. DHS, U.S. CBP, Swanton, Vt., 65 FLRA 1023, 1030 (2011) (CBP Swanton); SSA Hearings, 60 FLRA at 682.
In this case, I find that the assistant chief for the El Paso Sector with operational jurisdiction over the Las Cruces Station made the decision to implement regular primary inspections in the inside lane at the I-10 checkpoint. (Tr. 519-22). Further, the Las Cruces Station receives guidance from the El Paso Sector headquarters concerning labor relations and legal services. (Tr. 102‑03). Under these facts, I grant the General Counsel’s request and order posting of the notice throughout the Respondent’s El Paso Sector. See CBP Swanton, 65 FLRA at 1030; SSA Hearings, 60 FLRA at 682.[3]
RECOMMENDATION
I find that the Respondent violated § 7116 (a)(1) and (5) of the Statute when it directed agents to regularly conduct primary inspections in the inside lane of the I-10 checkpoint at the Las Cruces Station without providing the Union with notice and an opportunity to bargain. Therefore, I recommend that the Authority adopt the following Order:
ORDER
Pursuant to § 2423.41(c) of the rules and regulations of the Authority and § 7118 of the Statute, the Department of Homeland Security, U.S. Customs and Border Protection, El Paso Sector, El Paso, Texas, shall:
1. Cease and desist from:
(a) Changing employees’ conditions of employment without first providing the American Federation of Government Employees, National Border Patrol Council, Local 1929, AFL-CIO (the Union) an opportunity to bargain regarding the procedures to be observed in implementing those changes and appropriate arrangements for employees who have been, or may be, adversely affected by the implementation of such changes.
(b) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured them 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 the Union concerning the impact and implementation of all changes to employees’ conditions of employment at the Las Cruces Station I-10 checkpoint, including the regular use of the inside lane to conduct primary inspections.
(b) Post at its facilities in the El Paso Sector where bargaining unit employees represented by the Union are located, 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 highest official of the Department’s El Paso Sector, and shall be posted and maintained for sixty (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 ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to § 2423.41(e) of the Authority’s rules and regulations, notify the Regional Director, Dallas Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C., July 24, 2013
_________________________________
CHARLES R. CENTER
Chief Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of Homeland Security, U.S. Customs and Border Protection, El Paso Sector, El Paso, Texas violated the Federal Service Labor-Management Relations Statute (Statute), and has ordered us to post and abide by this Notice.
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change employees’ conditions of employment without first providing the American Federation of Government Employees, National Border Patrol Council, Local 1929, AFL-CIO (the Union) an opportunity to bargain regarding the procedures to be observed in implementing those changes and appropriate arrangements for employees who have been, or may be, adversely affected by the implementation of such changes.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured them by the Statute.
WE WILL upon request, bargain with the Union concerning the impact and implementation of all changes to employees’ conditions of employment at the Las Cruces Station I-10 checkpoint, including the regular use of the inside lane to conduct primary inspections.
____________________________________
(Agency/Activity)
Dated:_______________________ By:___________________________________
(Signature) (Title)
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 Region, Federal Labor Relations Authority, whose address is: 525 S. Griffin Street, Suite 926, Dallas, TX 75202, and whose telephone number is: (214) 767-6266.
[1] The Agents acknowledge that prior to January 2010, their duties sometimes required them to cross lanes of active traffic. (Tr. 55, 238). For example, in order to conduct bus inspections, agents coming from the main building have always had to cross at least one lane of active traffic in order to reach the bus lane outside of the canopy. (Tr. 56, 238).
[2] To the extent that the Respondent asserted the defenses of “special circumstances” and “business necessity” in its Answer, but did not explain those defenses in its post-hearing brief, these defenses are construed as argument that status quo anterelief is not appropriate under FCI because it would severely disrupt or impair the efficiency and effectiveness of the Respondent’s operations. (Resp. Original Answer at 3).
[3] This posting Order does not preclude the Respondent from utilizing its electronic mail system to provide employees with an additional form of notice that reinforces the Respondent’s recognition of and commitment to fulfillment of their obligations under the Statute.