U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California and National Border Patrol Council, American Federation of Government Employees, Local 1613 (Authority decision, May 9, 1990)

Final FLRA decision. The Authority adopted the unfair labor practice finding and modified the order to cover bargaining about the effects of past collateral intelligence assignments and about the effects and implementation of future similar assignments. The order also requires a 60-day employee notice. Judicial review is governed by 5 U.S.C. § 7123(a).

Plain-English summary

The Border Patrol assigned collateral intelligence duties to agents in its San Diego Sector without notifying AFGE Local 1613 or offering to bargain about the change's effects and implementation. An administrative law judge found an unfair labor practice. The Authority adopted that finding even though the assignment had ended. It expanded the judge's proposed bargaining remedy to cover the effect of the past assignment and the effects and implementation of any future similar assignments. The agency must bargain upon request and post a notice.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(1), 7116(a)(5), and 7118.
• Outcome: Unfair labor practice finding adopted; bargaining order modified to cover future related assignments.
• Key point: Ending the challenged duty assignment did not eliminate the remedy for its effects or future similar changes.

Full text (FLRA public release)

[ v35 p1039 ]
35:1039(114)CA

The decision of the Authority follows:

35 FLRA No. 114

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF
JUSTICE

IMMIGRATION AND NATURALIZATION
SERVICE

UNITED STATES BORDER
PATROL

SAN DIEGO SECTOR, SAN DIEGO,
CALIFORNIA

(Respondent)

and

NATIONAL BORDER PATROL
COUNCIL

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1613, AFL-CIO

(Charging
Party/Union)

8-CA-80157

DECISION AND ORDER

May 9, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by assigning collateral intelligence duties to bargaining unit employees in its San Diego Sector without first providing the Union notice and affording it the opportunity to bargain concerning the impact and implementation of the change. The Respondent filed exceptions to the Judge's Decision, and the General Counsel filed a response to the exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings and conclusion. For the reasons discussed below, we will modify the Judge's recommended Order.

We reject the Respondent's assertion that a bargaining order is not appropriate in this case. The Union has had no opportunity to bargain over the impact of collateral duty assignments on border patrol agents. Further, although the assignment of collateral intelligence duties which gave rise to an obligation to bargain was terminated, an order requiring the Respondent to bargain over procedures management will observe in any future implementation of a like, or related, assignment is appropriate. See Internal Revenue Service, 16 FLRA 845 (1984) (where Taxpayer Compliance Measurement Program had been discontinued, Authority ordered respondent to negotiate, upon request, over procedures it would observe in future implementation of same or similar program and appropriate arrangements for affected employees). See also U.S. Customs Service, Washington, D.C., 29 FLRA 307 (1987).

The Judge recommended an Order requiring that the Respondent bargain, upon request, over the impact and implementation of collateral intelligence duties assigned to border patrol agents. The Judge's recommended Order does not address the future assignment of collateral intelligence duties. Therefore, we will modify the Order to require the Respondent to bargain with the Union, upon request, over the impact of the assignment of duties in dispute in this case as well as the impact and implementation of any future assignment of collateral intelligence duty assignments, or any like or related assignments, to bargaining unit employees.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California shall:

1. Cease and desist from:

(a) Unilaterally changing working conditions of unit employees by assigning collateral intelligence duties to employees in the San Diego Sector, without first notifying the National Border Patrol Council, American Federation of Government Employees, Local 1613, AFL-CIO, the exclusive representative of certain of its employees, and affording it the opportunity to bargain over the impact and implementation of the change.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to
   effectuate the purposes and policies of the Statute:

(a) Upon request, bargain with the American Federation of Government Employees, Local 1613, AFL-CIO, over the impact of the assignment of collateral intelligence duties to border patrol agents and over the impact and implementation of any future assignment of collateral intelligence duty assignments, or any like or related assignments, to bargaining unit employees.

(a) Post at its U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector facilities copies of the attached Notice on forms to be furnished by the Federal labor Relations Authority. Upon receipt of such forms, they shall be signed by the Chief Patrol Agent 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.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, whose address is: 350 South Figuero Street, 3rd Floor, Room 370, Los Angeles, CA 90071, and whose telephone number is: (213) 894-3805, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY

AND TO EFFECTUATE THE POLICIES OF
THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change working conditions of unit employees by assigning collateral intelligence duties in the San Diego Sector, without first notifying the National Border Patrol Council, American Federation of Government Employees, Local 1613, AFL-CIO, the exclusive representative of certain of our employees, and affording it the opportunity to bargain over the impact and implementation of the change.

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, upon request, bargain with the Union over the impact of the assignment of collateral intelligence duties to border patrol agents and concerning the impact and implementation of any future assignment of collateral intelligence duty assignments, or any like or related assignments, to bargaining unit employees.

__________
(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 of the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figuero Street, 3rd Floor, Room 370, Los Angeles, CA 90071, and whose telephone number is: (213) 894-3805.

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