[ v25 p32 ]
25:0032(3)CA
The decision of the Authority follows:
25 FLRA No. 3
DEPARTMENT OF JUSTICE
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
EL PASO DISTRICT OFFICE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1210, AFL-CIO
Charging Party
Case No. 6-CA-50166
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent and the General Counsel to the attached Decision
of the Administrative Law Judge. The Respondent also filed an
opposition and cross-exceptions to the General Council's exceptions.
The complaint alleged that the Respondent failed to provide the Charging
Party proper notice and an opportunity to negotiate in good faith when
it unilaterally changed an established past practice and working
condition by implementing a one-hour rotation of unit employees on the
inspection lanes at the El Paso port of entry, in violation of section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute). For the reasons stated below, we find that the
Respondent violated section 7116(a)(1) and (5) of the Statute.
II. Facts
The American Federation of Government Employees (AFGE), National
Immigration and Naturalization Service Council, is the exclusive
representative for all personnel of the Immigration and Naturalization
Service (INS), except employees assigned to Border Patrol Sectors and
those excluded from coverage by Civil Service Reform Act. AFGE, Local
1210 (Charging Party/Union) is the local representative for AFGE for
bargaining unit employees in the El Paso District.
There are approximately 70 Immigration Inspectors at the El Paso
District who are responsible for inspecting vehicles and individuals
entering the United States from Mexico via three bridges. The bridges
are covered on a 24-hour basis. Inspectors rotate through various
shifts as well as assignments in the vehicular lanes, the pedestrian
areas, and behind the counter at the secondary inspection functions.
Carbon Monoxide and other fumes from automobile engines have posed a
problem to the inspectors' health when inspectors have worked on the
vehicular inspection lanes for long periods of time. In October 1979,
the Respondent's District Director and the local Union president entered
into an agreement regarding the rotation of employees on the vehicular
inspection lanes. /1/ The agreement stated:
Since management is ever mindful of the safety and health of
its employees and since the carbon monoxide and other gas levels
have not diminished at the ports of entry, it is agreed that the
Immigration Inspectors on vehicular primary inspection at Bridge
of the Americas and Paso del Norte Bridge will continue to be
rotated every 30 minutes.
This policy will be in effect until such time as the gas levels
in the vehicular primary inspection areas decrease to a more
tolerable level.
Under this agreement, the inspectors worked the primary vehicular
inspections at the two bridges for 30 minutes at a time; after the 30
minutes, they then rotated away from primary vehicular inspections and
worked either the pedestrian area or secondary inspections inside the
main building for 30 minutes to an hour. During an eight-hour shift the
inspectors spent about four hours on primary vehicular inspections.
On November 2, 1983, the El Paso District Director advised the Union
that he proposed to change the rotation time from 30 minutes to
approximately one hour. Following meetings with the Union, the District
Director advised the Union that in deference to concerns about
inspectors' safety, implementation of the change would be delayed until
a new study on carbon monoxide levels could be conducted and the test
results analyzed.
Between December 1983 and December 1984, several tests of the carbon
monoxide level were conducted by INS, the Occupational Safety and Health
Administration (OSHA), and the City of El Paso. The tests indicated
that carbon monoxide did not exceed the OSHA permissible exposure limit
for the employees sampled. The Union was provided copies of the test
results.
On November 13, 1984, the Respondent advised the Union by letter that
it proposed to implement the change of rotating inspectors from
30-minute periods to approximately one-hour periods, in order to improve
the efficiency of operations. The letter stated that this change would
not expose inspectors to pollution levels exceeding the OSHA standards.
The letter also stated that the Union should arrange a meeting if it
wished to present its views regarding this matter. At the Union's
request, the parties met on November 27, 1984 to discuss the proposed
change. The Respondent informed the Union that it would implement the
change by December 10. The Union asked that it be allowed to meet with
the people who made the last study of the pollution levels, and the
Respondent stated that it would try to arrange this.
On November 28, 1984, the Union requested formal negotiations in
accordance with the parties' agreement and made some preliminary
proposals regarding the proposed change. The parties exchanged
correspondence and met again to negotiate on December 6, 1984,
discussing the 1979 agreement that was keyed to a reduction of pollution
levels before any changes in rotation would be made.
On December 17, 1984, the Union received in the mail a letter from
the Respondent dated December 12 advising the Union that the change
would be implemented on December 17. The change was implemented on
December 17. The Union protested the Respondent's implementation and
again requested formal negotiations. The Union submitted several
proposals for the Respondent's consideration and negotiated with the
Respondent on December 24 and December 27, 1984, and January 9, 1985.
During the January 9 meeting the Respondent declared certain Union
proposals to be nonnegotiable, and the Union stated that parties were at
impasse. The Respondent confirmed its position of nonnegotiability by
letter of January 22, 1985. Neither party requested assistance from the
Federal Service Impasses Panel.
III. Administrative Law Judge's Decision
The Judge found that the Respondent was not obligated to negotiate
over the substance of its decision to change the amount of time
employees serve on primary vehicular inspection duty from 30 minutes at
a time to one hour at a time, because management's right to assign work
under the Statute included the right to allocate specific amounts of
time within which specific tasks would be accomplished. The Judge also
found that although the Respondent did not have to negotiate on the
substance of the change, it was required to negotiate over the
procedures to be observed in the exercise of management's authority and
over appropriate arrangements for adversely affected employees under
section 7106(b)(2) and (3) of the Statute because the change resulted in
more than a de minimis impact on unit employees.
The Judge also found that the Respondent failed to provide the Union
with proper notice and an opportunity to negotiate and violated section
7116(a)(1) and (5). The Judge found that the Respondent's December 12
notice to the Union (received by the Union on December 17) that the
change would take effect December 17 did not acknowledge the Union's
request for negotiations and allowed insufficient time for the Union to
reiterate its bargaining request and for the parties to complete
negotiations prior to implementation. The Judge also found that the
master agreement did not give management the sole right to make changes
in conditions of employment prior to completion of the bargaining
process.
Finally, the Judge found that the Respondent's continued refusal to
negotiate since the implementation of the change on Union proposals that
were within the duty to negotiate violated section 7116(a)(1) and (5) of
the Statute. The Judge denied the General Counsel's request for a
status quo ante order.
IV. Positions of the Parties
A. Respondent's Exceptions to the Judge's Decision
The Respondent contends that: (1) the Judge lacked jurisdiction to
hold a hearing in this case because at the time of the hearing the Union
had a negotiability petition pending with the Authority on the same
issue; (2) the Respondent had no duty to negotiate because the change
of the amount of time of the rotations was not a change of practice;
(3) it gave the Union adequate notice and opportunity to bargain prior
to implementation; (4) the Union's proposals which were submitted after
the implementation were nonnegotiable; (5) it had no duty to bargain
after the Union stated on January 9, 1985 that the parties were at
impasse; and (6) the impact of the change was not more than de minimis.
B. General Counsel's Exceptions to the Judge's Decision
The General Counsel contends that the Respondent was obligated to
negotiate with the Union over the substance of its decision to change
the time on primary vehicular inspection duty as well as the impact and
implementation of the change. The General Counsel also argues that the
Judge erred by failing to give a status quo ante remedy.
C. Respondent's Opposition to General Counsel's Exceptions and
Cross-exceptions
In response to the General Counsel's exceptions, the Respondent
argues that the Judge correctly found that the Respondent had no duty to
bargain over the change itself. The Respondent contends that even if a
duty to bargain on the change existed, the Judge erred in finding a duty
to engage in impact and implementation bargaining, because these two
obligations are mutually exclusive. Moreover, the Respondent contends
that because the complaint was limited to charging the Respondent with
not providing an opportunity to bargain over the change, the Judge was
without authority to consider the issue of a refusal to engage in impact
bargaining.
V. Analysis
We find that the Judge had jurisdiction to hold a hearing. Although
the complaint and negotiability petition were temporarily pending at the
same time, the Union's request for withdrawal of the negotiability
petition filed with the Authority prior to the hearing was, in effect,
its selection under section 2423.5 of the Authority's Rules and
Regulations. We find that the Respondent has not demonstrated that it
was prejudiced by the temporary pendency of the two proceedings. The
Agency's exception in this regard provides no basis to dismiss the
complaint.
We find, contrary to the Judge, that the Respondent was obligated to
negotiate over the substance of its decision to change the amount of
time employees serve on primary vehicular inspection duty from 30
minutes at a time to one hour at a time. The change clearly affected
conditions of employment of unit employees. The Respondent's change
from a 30-minute rotation to a one-hour rotation on vehicular inspection
lanes changed a past practice in working conditions that existed from
1979 to 1984. Moreover, the change did not involve the exercise of
management's rights under the Statute. The record does not support the
Judge's finding that the mere change in the length of the rotation --
from 30 minutes to one hour -- involves the assignment of work. The
change to a one-hour rotation on vehicular traffic did not change the
inspectors' duties. The same inspectors continued to perform the same
type of duties of their position at their normal duty stations and were
assigned the same amount of time working on the vehicualr lanes per
shift. The change concerns only when employees will perform the
previously assigned duties of their positions. See American Federation
of Government Employeed, AFL-CIO, Meat Grading Council of Locals and
Department of Agriculture, Meat Grading and Certification Branch, 22
FLRA No. 52 (1986) (Proposal 2) and American Federation of Government
Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
Department of Agriculture, Food Safety and Quality Service, Washington,
D.C., 9 FLRA 663 (1980). Therefore, we find that the change does not
involve the exercise of Respondent's rights under the Statute and was a
"mandatory" subject of bargaining.
The Authority has consistently held that agency management may
implement such changes only if (1) the parties have reached agreement,
(2) there is no timely invocation of the services of the Federal Service
Impasses Panel after impasse following good faith bargaining (unless
implementation is consistent with the necessary functioning of the
agency), or (3) the union has waived its bargaining rights. See, for
example, Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms, 18 FLRA No. 61 (1985) and Office of Program Operations, Field
Operations, Social Security Administration, San Francisco Region, 9 FLRA
73 (1982). Here, where the matter involved a mandatory subject of
bargaining -- the length of the rotation -- the Respondent's action in
implementing the change violated section 7116(a)(1) and (5) of the
Statute. The parties met on December 6, 1984, at which time the Union
stated that it wanted formal negotiations, that it had already made some
proposals, and that it intended to make additional proposals. The
implementation date was not discussed at the December 6 meeting. The
change was implemented on December 17, which was the same day the Union
received a letter from the Respondent stating that implementation would
occur on that day. The parties had not reached agreement, there was no
impasse about which to request the services of the Panel, and no waiver
is alleged or otherwise apparent. Accordingly, we find that the
Respondent implemented the change before it fulfilled its bargaining
obligation.
However, in agreement with the Respondent, we conclude that the Judge
erred in finding a violation based on the Respondent's failure to
bargain on the impact and implementation of the change. The complaint
in this case only alleged an unfair labor practice based on the
Respondent's failure to bargain over the change, not over its impact and
implementation. The General Counsel did not seek to amend the complaint
at the hearing, as permitted by section 2423.12(d) of the Authority's
Rules and Regulations. Accordingly, inasmuch as an allegation of
failure to bargain over impact and implementation is not properly before
us, we do not adopt the Judge's descussion of any impact and
implementation bargaining obligations. See Library of Congress, 15 FLRA
589, 591 (1984). /2/
Therefore, we find that the Respondent's failure to bargain over the
change in the rotation of inspectors on vehicular traffic from 30
minutes to one hour constituted a violation of section 7116(a)(1) and
(5) of the Statute. Consistent with our practice in cases where
management makes a unilateral change regarding a negotiable term and
condition of employment, we find that effectuation of the purposes and
policies of the Statute requires the imposition of a status quo ante
remedy, absent special circumstances, in order not to render meaningless
the mutual obligation under the Statute to negotiate concerning changes
in conditions of employement. See Veterans Administration, West Los
Angeles Medical Center, Los Angeles, California, 23 FLRA No.37 (1986).
There are no such special circumstances in this case.
VI. Conclusion
Pursuant to section 2423 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 prejucicial error was committed,
and thus affirm those rulings. We have considered the Judge's Decision
and the entire record, including the parties' contentions, and adopt the
Judge's findings and conclusions only to the extent consistent with the
above. We therefore conclude that the Respondent violated section
7116(a)(1) and (5) of the Statute by failing to bargain on the
Respondent's change of rotating inspectors on vehicular inspection from
30 minutes to one hour. We conclude further that the Judge's finding of
a violation based on the Respondent's failure to notify and bargain with
the Union on the impact and implementation of the change must be
reversed as that allegation was not encompassed by the complaint before
the Authority.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulation and section 7118 of the Federal Service
Labor-Management Relations Statute, the Authority hereby orders that the
Department of Justice, United States Immigration and Naturalization
Service, El Paso District Office, shall:
1. Cease and desist from:
(a) Instituting changes in the rotation periods for employees working
on primary vehicular inspection lanes at the El Paso port of entry
without affording the American Federation of Government Employees,
AFL-CIO, Local 1210, the designated representative of its employees in
the El Paso District, an opportunity to bargain concerning such changes.
(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) Rescind the decision to change to a one-hour rotation schedule
implemented on December 17, 1984, and restore the previously existing
30-minute rotation schedule.
(b) Upon request negotiate in good faith with the American Federation
of Government Employees, AFL-CIO, Local 1210, the designated
representative of its employees, concerning the December 17, 1984 change
in the rotation period for employees working on primary vehicular
inspection lanes at the El Paso port of entry to the extent that
negotiations are not inconsistent with applicable Federal law or
Government-wide regulation.
(c) Post at its facilities copies of the attached Notice on forms to
be furnished by the Authority. Upon receipt of such forms, they shall
be signed by the District Director and shall be posted and maintained
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 ensure that such
Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with this Order.
Issued, Washington, D.C., January 6, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute changes in the rotation period for employees
working on primary vehicular inspection lanes at the El Paso port of
entry without affording the American Federation of Government Employees,
AFL-CIO, Local 1210, the designated representative of our employees in
the El Paso District, an opportunity to bargain concerning such changes.
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
Federal Service Labor-Management Relations Statute.
WE WILL rescind the change to a one-hour rotation schedule
implemented on December 17, 1984, and restore the previously existing
30-minute rotation schedule.
WE WILL upon request negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, Local 1210, the designated
representative or our employees, concerning the December 17, 1984 change
in the rotation period for employees working on primary vehicular
inspection lanes at the El Paso port of entry to the extent that
negotiations are not inconsistent with applicable Federal law or
Government-wide regulation.
(Activity)
Dated:
District Director, El Paso Office
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, Region VI, Federal Labor Relations Authority, whose
address is: 525 Griffin Street, Suite 926, Dallas, Texas 75202, and
whose telephone number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CA-50166
DEPARTMENT OF JUSTICE, UNITED STATES
IMMIGRATION AND NATURALIZATION
SERVICE, EL PASO DISTRICT OFFICE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1210
Charging Party
Shirley A. Epperson
For the Respondent
Mike Milligan, Esquire
For the Charging Party
Susan E. Jelen, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Six, Federal Labor Relations Authority,
Dallas, Texas against the Department of Justice, United States
Immigration and Naturalization Service, El Paso District Office
(Respondent), based on charges filed by the American Federation of
Government Employees (AFGE), AFL-CIO, Local 1210 (the Charging Party or
Union). The complaint alleged, in substance, that Respondent violated
sections 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. Section 7101 et seq. (the Statute), by
implementing a one-hour rotation of bargaining unit employees on the
inspection lanes at the El Paso port of entry (Bridge of the Americas
and the Paso del Norte Bridge), since on or about December 17, 1984, and
continuing to date, without providing the Union proper notice and the
opportunity to negotiate over this alleged unilateral change in an
established past practice and working condition.
Respondent's answer admitted the jurisdictional allegations as to the
Respondent, Charging Party, and the charge, and admitted that it had
implemented a one-hour rotation policy on the inspection lanes, but
denied that it had refused to negotiate or otherwise violated the
Statute.
A hearing was held in El Paso, Texas. The Respondent, Charging
Party, and the General Counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. Based on the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
The American Federation of Government Employees (AFGE), National
Immigration and Naturalization Service Council, is the exclusive
representative for all personnel of the Immigration and Naturalization
Service (INS), except those assigned to Border Patrol Sectors and those
excluded from coverage by the Civil Service Reform Act. AFGE, Local
1210 is and has been the local representative for AFGE for bargaining
unit employees in the El Paso District.
The El Paso District of the United States Immigration and
Naturalization Service covers an area from Columbus, New Mexico to
Presidio, Texas. Alfred H. Giugni has been the district director at El
Paso for approximately five years.
El Paso contains three bridges between Mexico and the United States.
These bridges are called Ysleta, Bridge of the Americas (BOA), and Paso
del Norte Bridge. Immigration employees assigned to work these ports of
entry are responsible for inspecting vehicles and individuals desiring
to enter the United States.
There are approximately 70 Immigration inspectors at El Paso. The
bridges are covered on a 24-hour basis. Employees rotate through
various shifts as well as assignments. Employees at the bridges work
the vehicular lanes, the pedestrian areas, and behind the counter at the
secondary inspection functions.
Both the Paso del Norte Bridge and the Bridge of the Americas have
similar designs. The Paso del Norte Bridge is a one-way bridge to the
United States from Juarez, Mexico. Each bridge has a covered shed-like
area where the vehicular lanes are located. There are overhead fans in
the convered area, but they do not always work. There is no real
exhaust system in use. There are eight vehicular lanes through which
the traffic must pass. There are four lanes on each side of the Customs
head house. Immigration is assigned four lanes and employees of the
U.S. Customs Service are assigned to work the other four lanes. The
cars line up for the inspection. When one car is cleared, another
drives up to take its place. Since June 1984 cars waiting to be
inspected line up behind a stop sign about 25 feet from the car being
inspected. As a vehicle pulls up to the garita, or booth, the inspector
begins the inspection. The inspector determines the citizenship of the
driver and passengers and asks what they are bringing into the United
States from Mexico. Immigration inspectors are cross-trained to fulfill
the functions of Customs and Agriculture employees. There is only one
inspector assigned to a lane at one time. In certain cases, the
inspector may need to inspect the trunk or check under the hood of the
vehicle. Most vehicles remain with their motors running during this
inspection. Each inspector checks approximately 130 to 140 cars each
hour, according to counts maintained by the Customs Service. As many as
1,000 cars per hour can pass through this covered area. Trafic has
increased in recent years. The vehicles coming from Mexico burn leaded
fuel which increases the pollution. The city of El Paso itself has not
met Federal pollution standards for several years, although there has
been some continuing improvement in the ambient pollution level.
Over the years, since at least 1968, carbon monoxide and other fumes
from the automobile engines have posed a problem to the inspectors'
health when inspectors have worked on the vehicular inspection lanes for
long periods of time. As a result, in October 1979, Respondent's
district director and the local Union president entered into an
agreement regarding the rotation of employees on the vehicular
inspection lanes. The agreement stated:
Since management is ever mindful of the safety and health of
its employees and since the carbon monoxide and other gas levels
have not diminished at the ports of entry, it is agreed that the
Immigration Inspectors on vehicular primary inspection at Bridge
of the Americas and Paso del Norte Bridge will continue to be
rotated every 30 minutes.
This policy will be in effect until such time as the gas levels
in the vehicular primary inspection areas decrease to a more
tolerable level.
From 1979 until December 17, 1984, Immigration inspectors worked the
primary vehicular inspections at the two bridges for 30 minutes at a
time. Then the inspectors rotated away from primary vehicular
inspections and worked either the pedestrian area or secondary
inspections inside the main building for 30 minutes to an hour. During
an eight hour shift the inspectors spent about four hours on primary
vehicular inspections. On June 13, 1979, INS and AFGE reached agreement
on a new master contract. Article 5B provided that the "agreement is
not intended to abolish, solely by exclusion therefrom, any local or
regional understandings or agreements which have been mutually
acceptable at the local or regional level." Article 17I provided, in
part, that "Consistent with operational needs, Immigration Inspectors
assigned to vehicular inspections at ports-of-entry shall be rotated on
a fair and equitable basis from the vehicular inspections to a
non-vehicular inspection assignment." Article 3G provided, as follows:
The parties recognize that from time to time during the life of
the agreement, the need will arise for management to change
existing Service regulations covering personnel policies,
practices, and/or working conditions not covered by this
agreement. The Service shall present the changes it wishes to
make to existing rules, regulations, and existing practices to the
Union in writing. The Service recognizes that this obligation
exists at the national, Regional, and District level when such
changes are to be made. The Union will present it views (which
must be responsive to either the proposed change or the impact of
the proposed change) within a set time after receiving notice from
management of the proposed change. The time will be:
22 Work Days at National Level
10 Work Days at Regional Level
10 Work Days at District Level
If disagreement exists, either the Service or the Union may
serve notice on the other of its interest to enter into formal
negotiations on the subject matter. The Union will request
negotiations within 5 work days of receipt of the Service
response. Such negotiations must begin within 5 work days of
receipt by the other party of a request to negotiate. Reasonable
extensions of these time limits may be granted on request.
Nothing in the foregoing shall require either party to negotiate
on any matter it is not obligated to negotiate under applicable
law.
The 1979 contract expired in 1982. However, the parties continued to
abide by its basic provisions pending negotiation of a new contract.
/3/ The 30 minute rotation procedure continued to be followed.
On November 2, 1983, the District Director, El Paso, advised the
Union that he proposed to change the rotation time from 30 minutes to
periods of approximately one hour. This notice was provided pursuant to
Article 3G of the 1979 contract. Following meetings with the Union and
the threatened filing by the Union of a request for a temporary
restraining order in District Court, the District Director advised the
Union that, in deference to concerns about the safety of inspectors,
implementation of the change would be delayed until a new study could be
conducted and the test results analyzed.
Thereafter, between December 1983 and December 1984 three or four
tests of the carbon monoxide level were conducted by INS, the
Occupational Safety and Health Administration (OSHA), and the City of El
Paso. The OSHA test was conducted in December 1983 -- January 1984.
The tests indicated that, during the test period, carbon monoxide did
not exceed the OSHA permissible exposure limit for the employees
sampled. The Union was provided copies of the test results.
On November 13, 1984, Respondent had a letter, addressed to Union
president Ginger Chavez and signed by District Director Giugni,
personally delivered to Chavez at her work assignment, the El Paso
International Airport. It has been the usual practice for Respondent to
hand deliver correspondence to the union. The letter stated, in part:
In accordance with Article 3G of the negotiated agreement this
is to advise you that I am proposing to change the existing
practice of rotating officers working on primary inspections at
the El Paso Port of Entry from 30 minutes to periods of
approximately one hour.
The reason for this change is to improve the efficiency of the
operations by better utilization of available manpower.
Implementation of this change will provide the District with
additional flexibility in the assignment of personnel to better
facilitate the movement of vehicular traffic and improve the
overall quality of inspections. This change will not expose
inspectors to levels of pollution exceeding the OSHA standards.
If you wish to present your views regarding this matter please
contact my secretary to arrange an appointment to meet with me
within ten work days from receipt of this notice as set by Article
3G of the negotiated agreement.
At the Union's request, representatives of the Respondent and the
Union met on November 27, 1984. District Director Giugni stated that he
intended to implement the change to one hour rotations by December 10.
Attorney Mike Milligan who was representing the Union, asked that the
Union be allowed to meet with the people who made the last study
regarding the pollution levels of the El Paso bridges. Giugni stated
that they would try to arrange this. The parties made arrangement for
another meeting on December 6, 1984.
On November 28, 1984, Milligan sent a letter to Giugni which covered
what happened at the November 27 meeting. In this letter, in accordance
with Article 3G of the Collective Bargaining Agreement, Milligan made a
formal request for negotiations "(b)ecause of my uncertainty about
whether disagreement exists." The Union also made some preliminary
proposals regarding the proposed change, as follows:
First, it is unclear to me and the Union exactly what you are
trying to accomplish by the change from half hour to one hour
rotation. If we knew what the objective as, we would be happy to
explore other ways of accomplishing it without endangering the
health of the Immigration Inspectors. Also, we would consider
agreeing to one-hour rotations, coupled with continuous monitoring
of the pollution levels, so that the rotation intervals could be
changed as soon as the pollution levels become unhealthful. I
understand your regional office already has monitoring devices
that the inspectors can wear. Also, we would consider agreeing to
be bound by the results of a new study by the Occupational Safety
and Health Administration (which conducted the original study in
1979), provided you would agree to delay implementation of 60
minute rotations until they have completed their study.
Along these same lines, I believe it would be valuable for both
sides to have more information about this entire problem. That is
why I proposed the meeting with someone who conducted the latest
study, and there are other avenues we could explore as well. For
instances, last summer's data suggests that, at least then,
concentrations of carbon monoxide was somewhere between the
minimum standard set by OSHA and that set by the National
Institute for Occupational Safety and Health. Since there are
apparently different standards, it might be helpful to have the
data evaluated by a toxicologist who could tell us in practical
terms what the various concentrations of carbon monoxide would
mean to the health of the Immigration Inspectors. We would prefer
that the toxicologist be someone connected with neither the
Government nor the union, and we would be willing to consider
paying part of his fees. Also, I have seen no measurement of
other pollutants associated with engine exhaust, such as lead.
Because of the high consumption of leaded fuel in this area, there
could very well be some risk from that sort of pollution as well.
Finally, I want to emphasize that we are willing to discuss and
bargain concerning all of the above matters, either individually
or in combination with any proposals you may have. And we also
reserve the right to bargain, add to, amend or delete proposals.
On December 3, 1984, a letter, addressed to the Union attorney, Mike
Milligan, and signed by Respondent, was hand delivered by Respondent to
Milligan's office. The letter stated, in part:
I am puzzled by your request to enter into negotiations on
December 6, 1984, since I am still waiting to hear the Union's
views on the proposed change or the impact of the proposed change,
in accordance with Article 3G of the negotiated agreement.
In my proposal to you of November 13, 1984, I clearly set forth
my intention to change the rotation schedule from 30 minutes to a
period of approximately one hour, set forth the reason as to why I
felt this change necessary, and asked the Union to present its
views. I am assuming in our meeting of December 6, 1984, your
views will be presented and I will have the opportunity to
consider your views and then give you my decision on this matter.
At this point, I know of no disagreement which exists that would
warrant our entering into negotiations as you requested.
On December 6, 1984, the parties met again to discuss the proposed
one-hour rotation. During the meeting, the parties discussed the 1979
agreement. The Union stated that the agreement was keyed to a reduction
of pollution levels and that the latest studies were insufficient
evidence of such a reduction. The Union also indicated that it was
willing to look more closely at the July-August pollution study. The
Union stated if a disagreement existed between the parties, the Union
wanted formal negotiations, and noted that they had already made some
proposals and intended to offer additional proposals. The
implementation date was not discussed. Mr. Giugni indicated that he
would give the Union his decision in writing.
At approximately 2:45 p.m. on December 17, 1984, Milligan received a
letter signed by District Director Giugni and dated December 12, 1984.
This letter was not hand delivered as were the previous letters, but was
sent through the mail. The letter stated, in part, as follows:
The views of the Union presented to me in our meeting of
November 27, 1984 and December 6, 1984, in response to my proposal
to change the rotation of Immigration Inspectors on primary
vehicular duty at the El Paso Port of Entry, have been considered.
I agree that there is an agreement between Management and Local
1210, AFGE, that Immigration Inspectors at the El Paso Port of
Entry (Bridge of the Americas and the Paso del Norte Bridge) on
primary vehicular duty will be rotated every 30 minutes. However,
I disagree that no evidence exists that pollution levels have
decreased to a more tolerable level. The studies which were
furnished to you on December 6, 1984 indicate that a one-hour
rotation shcedule will not expose the Immigration Inspectors to
levels of pollution that exceed the acceptable OSHA level of 50
parts per million.
Your suggestion that a toxicologist be hired to evaluate the
studies that have been completed and that his cost be shared by
the agency is not acceptable. Your suggestion that further
studies be conducted prior to implementation of any change to the
rotation schedule is also rejected. These suggestions are
rejected because numerous pollution studies have already been
conducted since the agreement of 1979 and these studies have shown
that the Immigration Inspectors would not be exposed to levels of
pollution exceeding the the acceptable OSHA level.
I intend to implement the one-hour rotation at the Bridge of
Americas and the Paso del Norte Bridge beginning December 17,
1984. The individual assignment of inspectors and the pollution
levels to which they will be exposed will be closely monitored by
both supervisors and representatives from the Southern Regional
Office the week of December 17, 1984, while the change is being
implemented. I would hope that this would ensure that the
Immigration Inspectors will not be exposed to pollution levels
exceeding the OSHA standard.
Prior to Milligan's receipt of the letter, he was advised by Union
president Chavez on the morning of December 17, 1984 that the change had
been implemented that day. The one-hour rotation for employees on
primary vehicular inspection was implemented at both the Paso del Norte
and the Bridge of Americas at 8:00 a.m. on December 17, 1984.
By letter dated December 17, 1984 Union attorney Milligan protested
Respondent's implementation, demanded that the one hour rotations be
stopped, and requested formal negotiations by December 19, 1984 that it
was willing to negotiate on the change and requested that the Union
submit specific written proposals. The Respondent did not respond to
the Union's request that the change in rotation be rescinded. The
change was not rescinded and contiunes in effect.
On December 19, 1984, the Union responded to the Respondent's letter
and provided several proposals for the Respondent's consideration:
1. To provide for employee safety and health, the Service and
the Union agree to rotate employees performing the inspectional
functions through the various phases of work available within the
function during each shift on a fair and equitable bases (sic).
2. In determining the rate at which employees assigned shall
rotate through the vehicular inspection function, the Service
agrees to consider, among other factors, the number of employees
available on a given shift, the air quality at the port of entry
and pertinent weather factors in the area as determined by the
U.S. Occupational Health and Safety Administration; the need, or
lack thereof, for the utilization of available employees on other
functions; and any other factor appropriate to the performance of
the services mission.
3. The Service and the Union agree that, consistent with the
Service needs except in cases of emergency, the Service show (sic)
observe the recommended exposure guidelines of the Occupational
Safety and Health Administration in determining how frequently to
rotate employees through the various inspectional functions. The
Service agrees to make every effort to maintain exposure levels
for vehicle exhaust at or within levels designated as safe.
4. The Service agrees that it will make every reasonable
effort to relieve from the vehicular inspection function, on a
temporary bases (sic), any employee who becomes ill, nauseas
(sic), or otherwise suffers ill effects as a result of exposure to
vehicle exhaust or fumes. The Service agrees that such employees
shall be assigned to other duties as may be available in a prompt
manner.
5. The Service and the Union agree that, on or before March 1,
1985, the data collected by the Occupational Safety and Health
Administration in accordance with proposal Number 2 above, will be
submitted to Dr. Walter Decker, a toxicologist with offices in El
Paso, Texas. Dr. Decker will review the data and make a report to
the Occupational Safety and Health Administration concerning the
impact of one-hour rotations on immigration inspectors. The
Service and the Union agree to share equally the costs of Dr.
Decker's study and report.
6. The Service and the Union agree to abide by the
recommendations of the Occupational Safety and Health
Administration made after that agency has reviewed Dr. Decker's
report.
On December 14, 1984, the parties met to discuss the proposals
regarding the one-hour rotations. During this meeting, the Respondent's
representatives met separately to discuss the Unions' proposals. When
they returned to the meeting with the Union, there was no further
discussion since the Union was informed that they would have to talk
with District Director Giugni regarding the proposals. At this meeting
the Respondent furnished proposals to the Union, as follows:
1. The District agrees to the extent possible to provide for
employees safety by rotating employees performing the inspectional
functions through the various phases of work available within the
functions during each shift on a fair and equitable basis except
where for an emergency, sound management requires a deviation.
2. In determining the rate at which employees assigned shall
rotate through the vehicular inspection function the District
agrees to consider among other factors the number of employees
available on a given shift, the air quality at the port of entry
as determined by an annual survey conducted by the Service's
Safety and Health Program managers, the need or lack thereof, for
the utilization of available employees on other functions as
determined by the shift supervisor.
3. The District agrees that consistent with the manpower needs
except in cases of emergency, the District shall observe the
recommended guidelines of the OSHA under their eight-hour time
weighed average as determined by annual pollution checks in
determining how frequently to rotate employees through the various
inspections functions.
4. The District agrees that it will make every reasonable
effort to relieve from the vehicular inspection functions on a
temporary basis any employee who becomes ill in accordance with
A.M. 2224. The District agrees that employees shall continue to
be given light duty assignments as it has in the past on a case by
case basis depending on written statements made by competent
physicians and provided that they do not fall within the purview
of Chapter 339-3, Subchapter 1, of the Federal Personnel Manual
which requires a fitness for duty examination incertain
circumstances.
5. The District agrees that on or before February 1, 1985, a
letter will have been written to OSHA asking that agency to
conduct as soon as possible, another pollution level study, and to
seek the advice of that agency of the need for a report from a
toxicologist to read their findings. The District will provide a
copy of such letter and the response to the union local. If that
agency states that there is a need for such a report, the District
will ask OSHA for a recommendation as to the name of such a doctor
and if expenses are incurred in connection with such a study, the
District will share such costs on a 50/50 basis with the union
local.
On or about December 27, 1984 the Union submitted a list of
counterproposals, as follows:
1. The District agrees to provide for employees safety and
health by rotating employees performing the inspectional functions
through the various phases of work available within the functions
during each shift, to the extent possible, on a fair and equitable
basis except where for an emergency, sound management requires a
deviation.
2. In determining the rate at which employees assigned shall
rotate through the vehicular inspection function, the District
agrees to consider among other factors the number of employees
available on a given shift, the air quality at the port of entry
as determined by hourly monitoring under the supervision and
direction of the U.S. Occupational Safety and Health
Administration (OSHA), pertinent weather factors and the need or
lack thereof for the utilization of available employees on other
functions as determined by the shift supervisor.
3. Acceptable, except for word "annual."
4. We need time to read A.m. 2224 and Chapter 339-3,
Subchapter 1, Federal Personnel Manual, before responding.
5. The District and the Union agree that, within 5 working
days of reaching agreement on this proposal, they will transmit a
letter to OSHA asking that agency to conduct as soon as possible
another pollution level study the result of which the Union and
the District agree to accept as conclusive on the question of what
amount of exposure on the part of immigration inspectors is safe.
This letter will also request that OSHA provide the District and
the Union with the names of three Ph.D toxicologists, qualified to
evaluate raw data from OSHA. From this list, the Union and the
District may each strike one name. The remaining toxicologist
will evaluate the raw data collected by OSHA and make a report to
them, which OSHA will consider in making their recommendation
concerning safe exposure levels. The District and the Union will
share equally the costs of the toxicologist's study and report.
The letter to OSHA will also represent that that agency determine
the feasibility of continuous monitoring of pollution levels at
the Internationl Bridges, with a view towards structuring rotation
intervals, so that inspectors will rotate at shorter intervals
when pollution levels are high and longer intervals when they are
low.
The next meeting was held on or about January 9, 1985. During this
meeting, Shirley Epperson, the Respondent's representative from the
regional office, declared certain Union proposals or portions thereof to
be nonnegotiable. Mr. Milligan then stated that it appeared the parties
were at impasse. By letter dated January 22, 1985, the Respondent
confirmed its position that certain of the Union's proposals were
nonnegotiable, as follows:
Proposal No. 1
This is non-negotiable, pursuant to Article 50, as it
paraphrases and conflicts with Article 17I of the Master
Agreement.
Proposal No. 2
That portion of the proposal which relates to "hourly
monitoring under the supervision and direction of the U.S.
Occupational Safety and Health Administration (OHSA)" is
non-negotiable as it interferes with Management's rights to assign
work pursuant to 5 USC 7106(a)(2)(B). Additionally, the Service
cannot negotiate regarding functions and duties of another agency.
Proposal No. 4
This is non-negotiable, pursuant to Article 50, as it
paraphrases Article 36, 18, and 20 of the Master Agreement.
Proposal No. 5
That portion of the proposal which relates to the expenditures
of funds is non-negotiable as it interferes with Management's
rights to determine its budget as provided in 5 USC 7106(a)(1).
That portion of the proposal which relates to duties or functions
to be performed by OSHA is non-negotiable regarding duties or
functions of another agency.
Since the rotation period on primary vehicular inspections was
changed from one half hour to one hour on December 17, 1984, inspectors
spend one half hour working on one vehicular lane, and then switch to
another vehicular lane for another half hour. They then work on the
pedestrian lane or inside the building. They spend a total of from four
to four and one half hours on primary vehicular inspections during an
eight hour shift.
Since the change was made two of the 70 employees have had to recieve
emergency medical treatment on a one-time basis for what was diagnosed
as mild or minor carbon monoxide poisoning. Another employee has seen
his doctor for chest problems. The president of Local 1210 testified
that other employees have complained to her of similar problems. The
number of these employees was not disclosed. She testified that about
5-6 employees had expressed a fear of seeking medical treatment. The
record does not reflect the basis for such alleged fear. Overall the
total amount of sick leave used by employees has decreased after the
change.
Respondent arranged for on-site testing of carbon monoxide exposure
levels during the week in which the change was implemented. The
employee exposure level did not exceed the OSHA standard during that
period. Respondent also purchased oxygen tanks for both bridge
locations in order to expel carbon monoxide from the body should it be
ingested. There is no evidence of a permanent system to measure
pollution on the bridge on a daily, shift, or other regularly scheduled
basis.
Issues Presented
1. Whether Respondent was obligated to negotiate over the
substance of its decision.
2. If not, whether the impact or reasonably foreseeable impact
of the exercise of a management right on bargaining employees was
more than de minimis so as to require bargaining on impact and
implementation.
3. If so, whether Article 3G (1979) or Article 9A (1984), as
interpreted, authorized Respondent to implement its decision prior
to reaching agreement.
4. If not, whether Respondent provided the Union proper notice
and the opportunity to negotiate prior to implementation.
5. Whether Respondent has failed and refused to bargain in
good faith since the implementation of the change.
6. Whether the Union proposals were nonnegotiable, as asserted
by Respondent.
Discussion, Conclusions, and Recommendation
Management's right to assign work under section 7106(a)(2)(B) of the
Statute /4/ includes the right to allocate specific amounts of time
within which specific tasks will be accomplished. National Federation
of Federal Employees, Local 1263 and Defense Language Institute, Foreign
Language Center Presidio of Monterey, California, 7 FLRA 723 (1982);
American Federation of Government Employees, AFL-CIO, Local 3631 and
Environmental Protection Agnecy, 11 FLRA 637 (1983); National Treasury
Employees Union and Department of the Treasury, Bureau of the Public
Debt, 3 FLRA 769 (1980) aff'd sub. nom. NTEU v. FLRA, 691 F.2d 553
(D.C. Cir. 1982). Accordingly, Respondent did not owe a duty to the
Union to negotiate over the substance of its decision to change the
amount of time employees serve on primary vehicular inspection duty from
30 minutes at a time to one hour at a time.
Subsection 7106(b), however, provides that management's exercise of
any authority contained in subsection (a) does not preclude negotiations
concerning the procedures to be observed in exercising the authority
(section 7106(b)(2) or appropriate arrangements for adversely affected
employees (section 7106(b)(3). /5/ The Authority has held that "where
an agency in exercising a management right under section 7106 of the
Statue, changes conditions of employment . . . , the statutory duty to
negotiate comes into play if the change results in an impact upon unit
employees or such impact was reasonably foreseeable." (Footnote
omitted.) See U.S. Government Printing Office, 13 FLRA 203, 204-205
(1983). The Authority thereafter held that "no duty to bargain arises
from the exercise of a management right that result in an impact or a
reasonably foreseeable impact on bargaining unit employees which is not
more than de minimis." See Department of Health and Human Services,
Social Security Administration, Chicago Region, 15 FLRA No. 174 (1984).
The Authority has also held that in determining whether the impact or
reasonably foreseeable impact of the exercise of a management right on
bargaining unit employees is more than de minimis, the totality of the
facts and circumstances presented in each case must be carefully
examined. Thus, in Department of Health and Human Services, Social
Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101
(1985), the Authority looked to such factors as the nature of the change
(e.g., the extent of the change in work duties, location, office space,
hours, loss of benefits or wages and the like); the temporary,
recurring or permanent nature of the change (i.e., duration and
frequency of the change affecting unit employees); the number of
employees affected or foreseeably affected by the change; the size of
the bargaining unit; and the extent to which the parties may have
established through negotiations or past practice procedures and
appropriate arrangements concerning analogous changes in the past. /6/
The Authority also emphasized therein that the factors considered in the
circumstances of that case were not intended to constitute an
all-inclusive list or to be applied in a mechanistic fashion.
Turning to the instant case, with respect to the nature of the change
on conditions of employment of unit employees, it is noted that the work
duties performed by employees were not affected. The change from 30
minutes to one-hour rotation did not increase the employees' total time
on the vehicular traffic lanes per shift, but did increase the length of
the time periods during which they were exposed to fumes on the
vehicular lanes. The record reflects that carbon monoxide levels did
not exceed the OSHA permissible exposure limit for employees sampled
during the various test periods prior to and immediately after the
change. Only three of the 70 employees have sought medical attention
since the change, about 4 percent of the employees. However, the record
reflects that both parties have recognized the potential health and
safety implications of working on the vehicular lanes for some time.
Management installed oxygen tanks on the scene when the change went into
effect. The record does not reflect any established procedure for
periodic testing. Thus, the impact and reasonably foreseeable impact of
the change was primarily in terms of employees' safety and health, an
area worthy of serious consideration. The duration of the change as it
affected unit employees was permanent. As to the number of employees
affected and the size of the bargaining unit, the record indicates that
about 70 employees were affected out of a substantially larger
nationwide unit. There is evidence that the parties have bargained over
similar matters in the past primarily due to concern over the safety and
health of employees. The record reflects an October 1979 local
agreement dealing with the rotation period of employees on the vehicular
inspection lanes. There is also a provision in the master agreement
concerning fair and equitable rotation from vehicular to non-vehicular
inspection assignments. Accordingly, based on the totality of the facts
and circumstances presented, it is concluded that there was more than a
de minimis impact on unit employees and that the Respondent was
obligated to notify and bargain with the Union pursuant to section
7106(b)(2) and (3) of the Statute.
The Authority has held that the duty to negotiate in good faith under
the Statute requires that a party meet its obligation to negotiate prior
to making changes in established conditions of employment, during the
term of a collective bargaining agreement, absent a clear and
unmistakable waiver of bargaining rights. Department of the Air Force,
Scott Air Force Base, Illinois, 5 FLRA 9 (1971). Management is required
to provide adequate notice of the proposed change to the exclusive
representative in order to allow the union to request negotiations, if
it chooses, and to allow the parties reasonable time to complete the
negotiations prior to implementation, absent a compelling need to
implement prior to the completion of the bargaining process. Long Beach
Naval Shipyard, Long Beach, California, 17 FLRA No. 76, 17 FLRA 518
(1983); Bureau of Government Financial Operations Headquarters, 11 FLRA
338, 343 (1981).
Respondent defends, in part, on the basis that neither Article 3G
(1979) nor Article 9A (1984) of the Master agreement requires it to
negotiate or reach agreement prior to implementation of a change in
working conditions at the local level. Respondent relies upon a
decision to this effect by an arbitrator, involving the same parties, an
exception to which was denied by the Authority in American Federation of
Government Employees, Local 1210 and Immigration and Naturalization
Service, 8 FLRA 94 (1982). The dispute in that matter arose when the
Activity decided to make changes in the supervision and assignments of
employees at certain duty stations. The Union filed a grievance which
was ultimately submitted to arbitration claiming that management
violated the parties' collective bargaining agreement by the manner in
which the changes were implemented. The Union contended in part before
the Arbitrator that Article 3.G of the parties' agreement had been
violated as a result of the Activity's refusal to negotiate over the
impact of the change on employees. As a remedy, the Union requested
that the Arbitrator order the Activity "to restore the work situation as
it existed prior to the filing of the case and that the Service be
ordered to enter into formal negotiations with it concerning the
change."
In agreement with the Union the Arbitrator ruled that the Activity
had violated Article 3.G by refusing to negotiate on the impact of the
changes and found as follows:
The undersigned believes that Union's request for negotiations
was proper under these circumstances. He finds that the Service
should schedule a meeting where negotiations can take place in
accordance with the plain language of the Agreement. He does not
believe, however, that the Service is obligated to rescind the
rotational change orders pending those negotiations. He is of the
opinion that Article 3(G) does not require that decisions relating
to changes impacting on employees must be subject to negotiations
before a change is made. Rather, he finds that the Article
requires only that negotiations be had on the subject matter if an
when a request is made by either party. (Emphasis by the
Arbitrator.)
On this basis he made the following award:
The terms of the collective bargaining agreement require that
if a request is made to the Union, the Service must negotiate on
changes such as occurred on December 16, 1979, at El Paso. The
grievance of the Union is sustained in part and denied in part in
accordance with the opinion expressed above.
In its exception, the Union alleged that the Arbitrator's award was
contrary to the Statute because it was inconsistent with the duty to
bargain as set forth in sections 7114 and 7117. In particular, the
Union argued that in the circumstances of this case the Arbitrator was
compelled by the Statute to decide that the Activity's changes could not
properly have been implemented until negotiations had taken place.
The Authority held that the Union's exception did not establish "that
the award is in any manner contrary to the Statute." The Authority also
stated:
As noted, the Arbitrator in response to the Union's contentions
addressed the grievance in terms of whether the Activity had
violated the parties' agreement. Although he found that the
Activity's actions violated Article 3.G and ordered the Activity
to negotiate on request, he determined that there was no
requirement under the agreement for the Activity to negotiate on
the impact of the changes before those changes are made.
Consequently, he did not grant the Union's request to order that
the work situation as it existed before change be restored. The
Arbitrator's award does not address what obligations the Activity
may have had under the Statute, but rather is restricted solely to
the interpretation and application of the agreement and to the
fashioning of a remedy for its violation. /2/ The Union has
failed to demonstrate that the Statute compelled the Arbitrator to
to adopt the interpretation of the agreement asserted by the Union
and to adopt the requested remedy. Thus, the Union's exception
constitutes nothing more than disagreement with the Arbitrator's
interpretation and application of the agreement. It is well
established that this provides no basis for finding the award
deficient and accordingly the Union's exception is denied. E.g.,
American Federation of Government Employees (AFL-CIO) Local 1770
and Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg,
N.C., 6 FLRA No. 62 (1981).
As noted, the Authority held that the "Arbitrator's award does not
address what obligations the Activity may have under the Statute, but
rather is restricted soley to the interpretation and application of the
agreement and to the fashioning of a remedy for its violation." This
unfair labor practice case, on the other hand, does not involve
essentially conflicting interpretations of the agreement, but bargaining
rights under the Statute. Thus, the Arbitrator's decision is not
dispositive of this unfair labor practice case. See section 7116(d) of
the Statute. See also U.S. Customs Service, Region VIII, San Francisco,
California, 18 FLRA No. 51, 18 FLRA 377 (1985) (wherein the Authority
adopted the Judge's finding that the Union had contractually waived its
right to file an unfair labor practice charge, but specifically did not
adopt his discussion with regard to the private sector doctrine of
deferral to negotiated arbitration procedures.)
As stated above, the duty to negotiate in good faith under the
Statute requires that a party meet its obilgation to negotiate prior to
making changes in established conditions of employment, absent a clear
and unmistakable waiver. Neither Article 3G (1979) nor Article 9A
(1984) is inconsistent with the obligation to negotiate under the
Statute prior to making changes in established conditions of employment.
It establishes a procedure for management to give notice of the
"changes it wishes to make." It also provides for the presentation of
views by the Union "which must be responsive to either the proposed
change or the impact of the proposed change" within a set period of
time. Finally, it provides for the opportunity for formal negotiations
if disagreement exists. Nothing in the Article directly and
specifically reserves to management the sole right to make changes in
conditions of employment prior to the completion of the bargaining
process. Accordingly, it is concluded that the agreement does not
constitute a clear and unmistakable waiver of bargaining rights.
Department of the Air Force, Scott Air Force Base, supra; United States
Department of Labor, 16 FLRA No. 129, 16 FLRA 969 (1984); Veterans
Administration, Central Office, Washington, D.C. and Veterans
Administration Regional Office, Cleveland, Ohio, 20 FLRA No. 27, 20 FLRA
199 (1985).
Turning to the facts of this case, the record reflects that the
Union, upon being notified by Respondent on November 13, 1984 of its
intention to implement the proposed change, presented its views at
meetings on November 27, 1984 and December 6, 1984, and made clear that
it was requesting formal negotiations, pursuant to Article 3G of the
agreement, should disagreement exist. The Union offered several
proposals for Respondent's consideration, including continuous
monitoring of pollution levels. Respondent's notice dated December 12,
1984 (Wednesday) that the change would be implemented on December 17,
1984 (Monday) did not acknowledge the Union's standing request for
bargaining on its proposals. The notice allowed insufficient time for
the Union to reiterate its bargaining request and for the parties to
complete the negotiations prior to implementation. Respondent presented
no evidence to show when it actually mailed the letter. Further, the
evidence shows that Respondent was in the practice of hand-delivering
correspondence to Union officials, including the Union's attorney. The
December 12, 1984 letter in this instance was not received by the
Union's attorney until the afternoon of the date of implementation,
December 17, 1984. Clearly, under the circumstances, Respondent did not
do all that could reasonably be expected in order to provide adequate,
timely notice /7/ to enable the parties to complete negotiations prior
to implementation. There is neither a contention nor any indication in
the record that Respondent's implementation prior to the completion of
bargaining process was based on a compelling need. Accordingly,
Respondent's implementation of the change on December 17, 1984, without
providing the Union proper notice and the opportunity to negotiate
pursuant to section 7106(b)(2) and (3) violated section 7116(a)(1) and
(5), as alleged.
The next issue for determination is whether, as alleged, Respondent
has continued to refuse to bargain in good faith since the
implementation of the change. The record reflects that, following
implementation, the parties met, exchanged proposals, and Respondent
eventually declared two of the Union's proposals to be non-negotiable
under the Statute. /8/ If, in fact, the Union proposals were
nonnegotiable or negotiable only at the election of the Agency, the
Respondent's refusal to negotiate would not be in violation of section
7116(a)(1) and (5) of the Statute. Department of Health and Human
Services, 19 FLRA No. 8, 19 FLRA 73 (1985). The proposals were:
2. In determining the rate at which employees assigned shall
rotate through the vehicular inspection function, the District
agrees to consider among other factors the number of employees
available on a given shift, the air quality at the port of entry
as determined by hourly monitoring under the supervision and
direction of the U.S. Occupational Safety and Health
Administration (OSHA), pertinent weather factors and the need or
lack thereof for the utilization of available employees on other
functions as determined by the shift supervisor. (Only the
underlined portion is in dispute).
5. The District and the Union agree that, within 5 working
days of reaching agreement on this proposal, they will transmit a
letter to OSHA asking that agency to conduct as soon as possible
another pollution level study the result of which the Union and
the District agree to accept as conclusive on the question of what
amount of exposure on the part of immigration inspectors is safe.
This letter will also request that OSHA provide the District and
the Union with the names of three Ph.D toxicologists, qualified to
evaluate raw data from OSHA. From this list, the Union and the
District may each strike one name. The remaining toxicologist
will evaluate the raw data collected by OSHA and make a report to
them, which OSHA will consider in making their recommendation
concerning safe exposure levels. The District and the Union will
share equally the costs of the toxicologist's study and report.
The letter to OSHA will also request that that agency determine
the feasibility of continuous monitoring of pollution levels at
the International Bridges, with a view towards structuring
rotation intervals, so that inspectors will rotate at shorter
intervals when pollution levels are high and longer intervals when
they are low. (Only the underlined portion is in dispute).
With respect to proposals 2, Respondent contended that the underlined
portion interfered with management's right to assign work pursuant to
section 7106(a)(2)(B). Additionally, Respondent contended that it
cannot negotiate regarding functions and duties of another agency.
The Authority has stated that proposals to require management to
consider health and safety factors in assigning work are not
inconsistent with the Statute, but proposals which would actually
preclude the assignment of work are nonnegotiable. American Federation
of Government Employees, Local 2082, AFL-CIO, 12 FLRA 72, 91 (1983);
National Federation of Federal Employees, Local 1167 and Department of
the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead
Air Force Base, Florida, 6 FLRA 574, 585, (1981) and International
Association of Fire Fighters Local F-61 and Philadelphia Naval Shipyard,
3 FLRA 438 (1980). See also National Treasury Employees Union, 5 FLRA
250, 256 (1977).
Insofar as proposal 2 would require "hourly monitoring" by agency
employees, it is inconsistent with management's right to assign work.
The Authority has held that the right to assign work includes the right
to determine when such assignments will occur and when the work which
has been assigned will be performed. National Treasury Employees Union,
3 FLRA 769 775 (1980). Insofar as the proposals requires inspections to
be under the supervision and direction of OSHA or other outside bodies,
it also interferes with management's right to assign work. It would
require the agency to relinquish its statutory authority to assign work,
which includes the right to assign particular duties to particular
employees. American Federation of Government Employees, AFL-CIO, Local
2786, 20 FLRA No. 26, 20 FLRA 193 (1985) (Provision 3). In this regard
it is noted that section 1-201 of Executive Order 12196 provides that
the head of each agency shall, among other things, operate an
occupational safety and health program in accordance with the
requirements of the Order and basic program elements promulgated by the
Secretary of Labor. The head of each agency is also required to assure
that periodic inspection of all agency workplaces is performed by
personnel with equipment and competence to recognize hazards and the
prompt abatement of unsafe and unhealthy working conditions. 45 FR
12769, 3 CFR, 1980 Comp. p. 145.
With respect to proposal 5, Respondent contended that the underlined
portions which relate to duties or functions to be performed by OSHA are
nonnegotiable as the Service cannot negotiate regarding the duties or
functions of another agency. Further, Respondent asserted that the
portion of the proposals relating to the expenditure of funds interferes
with management's right to determine its budget.
A request that OSHA perform a safety inspection is within the duty to
bargain. United States Department of the Treasury, Internal Revenue
Service, Dallas District, 19 FLRA No. 115, 19 FLRA 979 (1985). However,
the portion of the proposal specifying what OSHA may consider in making
its recommendation concerning safe exposure levels is outside the duty
to bargain because, as contended by the Respondent, it relates to duties
and functions performed by another agency and is not directly concerned
with conditions of employment of members of the bargaining unit within
the meaning of section 7103(a)(14). Similarly, for the reasons stated
above, that portion of the proposal which literally provides or suggests
that OSHA will structure rotation intervals for unit employees in light
of pollution levels interferes with management's right to assign work.
In this regard, it is noted that section 1-401(g) of Executive Order
12196, supra, provides that the Secretary of Labor shall provide
"technical services to agencies upon request. These services may
include studies of accidents, causes of injury and illness,
identification of unsafe and unhealthful working conditions, and means
to abate them." Further, that the Secretary of Labor may make
recommendations to the agency for correcting any violation. (section
1-401(i)). Thus, a proposal that the Secretary of Labor (OSHA) be
requested to provide services within the scope of its responsibilities
as outlined would be within the duty to bargain.
That portion of the proposal 5 which provides that Respondent and the
Union will share equally the costs of a toxicologist's study and report
is within the duty to bargain. Respondent has not demonstrated that
such costs would be "significant and unavoidable and . . . not offset by
compensating benefits . . . (so as) to violate the agency's right to
determine its budget under section 7106(a) of the Statute." American
Federation of Government Employees, AFL-CIO, and Air Force Logistics
Agency, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980),
enforced as to other matters sub nom. Department of Defense v. Federal
Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied
sub nom. AFGE v. FLRA, 455 U.S. 945 (1982); American Federation of
Government Employees, Local 3488, 12 FLRA 532, 536 (1983).
In view of the above findings that certain of the proposals submitted
by the Union were within the duty to bargain, to that extent the
Respondent's defense to the refusal to bargain since implementation of
the change in rotation periods cannot be sustained. Therefore, the
Respondent's failure or refusal to bargain over the procedures to be
observed and appropriate arrangements for employees adversely affected
constituted a violation of section 7116(a)(1) and (5) of the Statute.
The General Counsel has requested a status quo ante order. In this
regard, it is noted that the Respondent provided the Union with prior
notice of the proposed change and discussed the matter with the Union,
but ultimately implemented the change without having completed the
collective bargaining process. Respondent did so on the basis of its
good faith but erroneous belief that the collective bargaining
agreement, as interpreted by an arbitrator, did not require it to
complete negotiations prior to implementation. Moreover, it is noted
that while the health and safety impact on employees has been and is, a
serious continuing concern in this matter and merits full exploration in
negotiations, there is no evidence that inspectors have been exposed to
levels of pollution exceeding permissible limits or that serious medical
consequences have ensued, at least on a short-term basis, since the
change was made. Thus, a requirement that management rescind the
change, which was imposed to improve the efficiency of the operations by
facilitating the movement of vehicular traffic and improving the overall
quality of inspections, would create a serious disruption and is not
warranted. Thus, balancing the nature and circumstances of the
violation against the degree of disruption in the Respondent's
operations that would be caused by such a remedy, and taking into
consideration the factors set forth in Federal Correctional Institution,
8 FLRA 604 (1982), it is concluded that an order giving the Union an
opportunity to bargain concerning procedures to be observed in
implementing such change and concerning appropriate arrangements for
unit employees adversely affected will best effectuate the purposes and
policies of the Statute.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Department of Justice, United States
Immigration and Naturalization Service, El Paso District office, shall:
1. Cease and desist from:
(a) Instituting changes in the rotation periods for employees
working on primary vehicular inspections lanes at the El Paso port
of entry without affording the American Federation of Government
Employees, AFL-CIO, Local 1210, the designated representative of
its employees in the El Paso District, the opportunity to bargain
concerning the procedures for implementing such changes and
appropriate arrangements for employees adversely affected by such
changes.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Upon request, negotiate in good faith, with the American
Federation of Government Employees, AFL-CIO, Local 1210, the
designated representative of its employees, concerning the
procedures to be observed and appropriate arrangements for
employees adversely affected by the December 17, 1984 change in
the rotation period for employees working on primary vehicular
inspection lanes at the El Paso port of entry, including, but not
limited to, the proposal found to be negotiable by the Authority.
(b) Notify the American Federation of Government Employees,
AFL-CIO, Local 1210, the designated representative of its
employees, with regard to any future changes in the rotation
period for employees working on primary vehicular inspection lanes
at the El Paso port of entry and afford it the opportunity to
bargain concerning the procedures for implementing such changes
and appropriate arrangements for employees adversely affected by
such changes.
(c) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the District
Director, or his designee, and shall 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.
(d) Pursuant to 5 C.F.R. Section 2423.30 notify the Regional
Director, Region Six, Federal Labor Relations Authority, Dallas,
Texas, in writing, within 30 days from the date of this order, as
to what steps have been taken to comply herewith.
/s/ GARVIN LEE OLIVER
Administrative Law Judge
Dated: November 7, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Also in 1979, INS and AFGE reached agreement in a master contract
which provided that the "agreement is not intended to abolish, solely by
exclusion therefrom, and local or regional undertakings or agreements
which have been mutually acceptable at the local or regional level."
(2) Accordingly, based on our conclusion, we find it unnecessary to
address the Respondent's remaining exceptions relating to the Judge's
impact and implementation findings.
(3) On September 21, 1984 the parties signed a new master agreement.
Distribution and implementation was delayed pending approval by the head
of the Agency. Article 17I remained the same in the 1984 agreement.
Article 9A of the 1984 agreement also contains the same language as
article 3G in the 1979 agreement.
(4) Section 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of any
agency--
(2) in accordance with applicable laws--
(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted.
(5) Section 7106(b)(3) provides:
(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating--
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
(6) Additionally, Member McGinnis indicated in a separate concurring
opinion that he would also consider, in determining de minimis issues,
when the implementation of a change would involve or adversely affect
unit employees in assessing the totality of the facts and circumstances
presented.
(7) See U.S. Customs Service, 18 FLRA No. 34, 18 FLRA 263, 273
(1985).
(8) Two proposals (No. 1 and 4) were declared to be non-negotiable
under the terms of the master agreement. Inasmuch as the agreement
(Article 50) contains a procedure which the parties themselves have
established to resolve such controversies no consideration will be given
these proposals. The dispute involves a differing and arguable
interpretation of the agreement in this regard. Veterans
Administration, Veterans Administration Medical Center, Muskogee,
Oklahoma, 19 FLRA No. 122, 19 FLRA 1054 (1985) (Case No. 6-CA-804).
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute changes in the rotation period for employees
working on primary vehicular inspection lanes at the El Paso port of
entry without affording the American Federation of Government Employees,
AFL-CIO, Local 1210, the designated representative of our employees in
the El Paso district, the opportunity to bargain concerning the
procedures for implementing such changes and appropriate arrangements
for employees adversely affected by such changes.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, Local 1210, the designated
representative of our employees, concerning the procedures to be
observed and appropriate arrangements for employees adversely affected
by the December 17, 1984 change in the rotation period for employees
working on primary vehicular inspection lanes at the El Paso port of
entry, including, but not limited to, the proposal found to be
negotiable by the Authority.
WE WILL, notify the American Federation of Government Employees,
AFL-CIO, Local 1210, the designated representative of our employees,
with regard to any future changes in the rotation period for employees
working on primary vehicular inspection lanes at the El Paso port of
entry and afford it the opportunity to bargain concerning the procedures
for implementing such changes and appropriate arrangements for employees
adversely affected by such changes.
(Agency or Acitivty)
Dated: By:
(Signature)
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 of the Federal Labor Relations Authority, Region VI,
whose address is: Federal Office Building, 525 Griffin Street, Suite
926, Dallas, Texas 75202, and whose telephone number is: (214)
767-4996, or FTS 8-729-4996.