14:0578(83)CA - Justice, INS and AFGE Local 2509 -- 1984 FLRAdec CA
[ v14 p578 ]
14:0578(83)CA
The decision of the Authority follows:
14 FLRA No. 83
UNITED STATES DEPARTMENT OF JUSTICE
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2509
Charging Party
Case No. 6-CA-440
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint, and recommending that
it be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the Respondent filed exceptions to portions of the
Judge's Decision. /1/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, /2/ conclusions and Recommended Order, as modified
herein.
The Authority adopts the Judge's conclusion that the Respondent
violated section 7116(a)(1) and (5) of the Statute when it bypassed the
exclusive representative and met directly with unit employees concerning
their conditions of employment, noting particularly that Respondent did
not except to the Judge's findings in this regard.
In further agreement with the Judge, the Authority finds that the
Respondent violated section 7116(a)(1) and (5) of the Statute by
unilaterally changing the policy concerning the factors to be considered
in determining the assignment of government-owned housing at Presidio,
Texas, a hardship post, without providing the Union with any notice of
the change or any opportunity to request negotiations prior to
effectuating the change and awarding a house under the changed policy.
In this regard, the Authority concludes that the assignment of
government-owned housing was a condition of employment directly
affecting the unit employees' work situation and employment
relationship, /3/ and therefore was within the scope of bargaining under
the Statute. /4/
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is hereby ordered that the United
States Department of Justice, United States Immigration and
Naturalization Service shall:
1. Cease and desist from:
(a) Changing established conditions of employment concerning the
assignment of government-owned housing, or any other condition of
employment, without first notifying the American Federation of
Government Employees, AFL-CIO, Local 2509, the exclusive representative
of its employees, and affording such representative the opportunity to
negotiate in good faith to the full extent consonant with law.
(b) Bypassing the American Federation of Government Employees,
AFL-CIO, Local 2509, the exclusive representative of its employees, and
dealing directly with unit employees concerning personnel policies and
practices and matters affecting working conditions.
(c) In any like or related manner interfering with, restraining, or
coercing its 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 Federal Service Labor-Management Relations
Statute.
(a) Reevaluate the assignment of a government-owned house to
Supervisory Patrol Agent Stanley U. Spencer in November 1979 and
reevaluate all employees in Presidio, Texas for eligibility for this
house in accordance with the established terms and conditions for
assignment of housing set forth in the August 14, 1979 memorandum from
the Chief Patrol Agent, Marfa, Texas.
(b) If, following the action taken in accordance with paragraph 2(a),
above, it should develop that there was an improper failure to assign
the housing in question to a bargaining unit employee, the house in
question, if occupied by Spencer, shall be vacated, and the unit
employee entitled thereto shall be assigned the house and reimbursed for
any loss of monies occasioned by the improper failure to assign housing.
/5/
(c) Notify the American Federation of Government Employees, AFL-CIO,
Local 2509 of any proposed change in established conditions of
employment concerning the assignment of government-owned housing, or any
other condition of employment, and, upon request, afford such
representative the opportunity to negotiate in good faith to the full
extent consonant with law.
(d) Post at its facilities in the Marfa, Texas Sector copies of the
attached Notice on forms to be furnished by the Authority. Upon receipt
of such forms, they shall be signed by the Chief Patrol Agent, Marfa,
Texas, or his designee, 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 insure that such
Notices are not altered, defaced, or covered by any other material.
(e) 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 herewith.
Issued, Washington, D.C., May 11, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 change established conditions of employment concerning
the assignment of government-owned housing, or any other condition of
employment, without first notifying the American Federation of
Government Employees, AFL-CIO, Local 2509, the exclusive representative
of our employees, and affording such representative the opportunity to
negotiate in good faith to the full extent consonant with law.
WE WILL NOT bypass the American Federation of Government Employees,
AFL-CIO, Local 2509, the exclusive representative of our employees, and
deal directly with unit employees concerning personnel policies and
practices and matters affecting working conditions.
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 reevaluate the assignment of a government-owned house to
Supervisory Patrol Agent Stanley U. Spencer in November 1979 and
reevaluate all employees in Presidio, Texas for eligibility for this
house in accordance with the established terms and conditions for
assignment of housing set forth in the August 14, 1979 memorandum from
the Chief Patrol Agent, Marfa, Texas. If, following this reevaluation,
it should develop that there was an improper failure to assign the
housing in question to a bargaining unit employee, the house in
question, if occupied by Spencer, shall be vacated, and the unit
employee entitled thereto shall be assigned the house and reimbursed for
any loss of monies occasioned by the improper failure to assign housing.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, Local 2509 of any proposed change in established conditions of
employment concerning the assignment of government-owned housing, or any
other condition of employment, and, upon request, afford such
representative the opportunity to negotiate in good faith to the full
extent consonant with law.
(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 its provisions, they may communicate directly with the Regional
Director, Region VI, Federal Labor Relations Authority whose address is:
Bryan and Ervay Streets, Room 450, P.O. Box 2640, Dallas, Texas 75221,
and whose telephone number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CA-440
Henry E. Cardenas
For the Respondent
Susan E. Jelen, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), as a result of
an unfair labor practice complaint filed by the Regional Director, Sixth
Region, Federal Labor Relations Authority, Dallas, Texas, against the
United States Department of Justice, United States Immigration and
Naturalization Service (Respondent), based on a charge filed by the
American Federation of Government Employees, AFL-CIO, Local 2509 /6/
(Charging Party or Union). The Complaint alleged, in substance, that
Respondent violated section 7116(a)(1) and (5) of the Statute by
unilaterally changing existing conditions of employment concerning the
assignment of government-owned housing without furnishing the Union an
opportunity to bargain over the change, and further, by bypassing the
Union and dealing directly with unit employees concerning
government-owned housing. /7/
The Respondent and the General Counsel, FLRA were represented by
counsel 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 herein, including my observation of
the witnesses and their demeanor, the exhibits and other relevant
evidence adduced at the hearing, and the briefs, I make the following
findings of fact, conclusions of law, and recommendations.
Findings of Fact
The Charging Party represents an appropriate unit of Respondent's
employees in the Marfa sector of the United States Border Patrol. The
headquarters of the Marfa sector is in Marfa, Texas, and one of the ten
stations located in that sector is in Presidio, Texas.
The Presidio station has been designated a hardship station by the
Border Patrol. After serving at a hardship station for 24 months, a
Border Patrol agent is allowed to rotate laterally, without promotion,
to a vacancy in a geographic area of his choice, depending on the
availability of a vacancy. (Tr. 12, 41, 59, 91). Presidio, Texas has a
population of approximately 1,500. There is a general lack of adequate
housing at the local level. (Tr. 41, 77). However, there is some
government housing available at Presidio, which now includes eight
houses and ten mobile homes or trailers. The first four houses were
available in 1971, with the remaining four built in 1972. The trailers
were not available until the summer of 1979. Of the eight houses, two
are assigned to the Customs Service, two are assigned to the Immigration
and Naturalization Service, Port of Entry personnel, and the remaining
four are assigned to the Border Patrol. (Tr. 12, 42, 43, 60, 63, 106,
107, 108, 116).
By memorandum dated August 5, 1971 the Assistant Regional
Commissioner, Southwest Region, designated the Chief Patrol Agent,
Marfa, Texas the responsibility to assign and determine occupancy of the
Immigration Service housing in Presidio, Texas. The Assistant Regional
Commissioner stated, in part, "Equal and fair consideration should be
given to all personnel desiring occupancy of these houses.
Determinations for authorizing housing should be based on an individual
applicant's needs such as: size of family; conditions of his current
living quarters; availability of other suitable housing in the area;
hardships; and any other items considered applicable." (Respondent's
Ex. 6).
From 1971 to December 1975 two of the four Border Patrol houses were
used by supervisory personnel at Presidio, the Patrol Agent in charge
and the Supervisory Patrol Agent. (Tr. 107-110). In December 1975 the
new supervisory patrol agent did not choose to live in a government
house. The housing was thus assigned to the most senior Border Patrol
agent in Presidio. (Tr. 110-111).
During the period 1976 to 1979 agents reporting to Presidio were told
that they would be considered for housing on the basis of seniority and
size of family. Patrol Agent in Charge Murphy maintained the verbal
request and seniority list in his head. Agents understood that only one
house was reserved for supervisory personnel, the Patrol Agent in
Charge. (Tr. 43-44; 60-61).
In early 1979 information was received that 10 mobile homes would be
added to the government housing at Presidio. (Tr. 127-178). By
memorandum dated February 6, 1979 the Associate Regional Commissioner,
Management, Dallas, Texas again designated the Chief Patrol Agent,
Marfa, Texas the responsibility to assign and determine occupancy of the
Immigration Service housing or mobile homes in Presidio, Texas. Again
the criteria was stated to be: "Equal and fair consideration should be
given to all personnel desiring occupancy of these houses.
Determination for authorized housing should be based on an individual
applicant's needs such as: size of family; conditions of his current
living quarters; availability of other suitable housing in the area;
hardship; and any other items considered applicable."
On February 13, 1979 the Acting Chief Patrol Agent, Marfa, Texas sent
a memorandum to the Patrol Agent in Charge and Officer in Charge,
Presidio, Texas concerning "Occupancy Policy for Government Owned
Housing at Presidio, Texas." The memorandum was consistent with the 1971
policy except that it added the requirement of a written request to the
other criteria. It was felt that the Patrol Agent in Charge would no
longer be able to keep the list in his head. (Tr. 128). The memorandum
provided, in part, as follows:
In order to insure equitable and fair consideration to all
personnel desiring occupancy in government owned housing in
Presidio, Texas, the following prerequisites have been
established.
One unit each shall be reserved for the Patrol Agent in Charge
and the Supervisory Immigration Inspector.
Additionally, two units are occupied by Customs Service
personnel.
A list will be prepared and posted by the Patrol Agent in
Charge and the remaining housing units will be filled from it
according to the following criteria:
1. Date of written request for government housing by POE or
Border Patrol personnel.
2. Date of entry on duty at Presidio, Texas.
3. Size of family.
4. Condition of current living quarters.
5. Availability of other suitable housing in the area.
6. Hardships.
Although any other applicable factors will be considered, the
final approval for government-owned housing will be made by the
Chief Patrol Agent in Marfa, Texas. (Joint Ex. 2).
On July 25, 1979 Border Patrol Agent Stanley U. Spencer sent a
memorandum to the Chief Patrol Agent, Marfa, Texas, requesting that his
name be placed on the list for government housing at Presidio, Texas.
He stated that he would enter on duty at Presidio on or before August
19, 1979 as a GS-11, Senior Patrol Agent. (Respondent's Ex. 2). The
Senior Patrol Agent is a supervisor under the Patrol Agent in Charge.
(Tr. 41). Spencer arrived at Presidio in the summer of 1979, and,
shortly thereafter, was assigned a government trailer. Spencer had a
wife and three children. (Tr. 44-45; 49, 62-64).
On August 14, 1979 the Chief Patrol Agent, Marfa, Texas sent a
memorandum to the Immigration Officers, Presidio, Texas concerning
government-owned housing. The memorandum provided, as follows:
There are eight Government houses at Presidio. Two are
occupied by U.S. Customs personnel. One will be reserved for the
SII (Senior Immigration Inspector) and one will be reserved for
the SPAIC (Supervisory Patrol Agent in Charge).
There will be two (2) three (3) bedroom trailers and eight (8)
two (2) bedroom trailers available as residences.
The Government houses and the three bedroom trailers will be
made available to Immigration Officers with a family of at least
two children. The remaining trailers will be available to
Immigration Officers with families and single Officers. Officers
with families will get preference.
As the various residences become available, they will be
offered following the above criteria, to the Officer with the most
time in Presidio. If that Officer declines to accept the housing,
his name will go last on the waiting list and the next Officer
will be offered the residence. Any Officer with two or more
children may wait for the first suitable size trailer, or a house
without returning to the bottom of the waiting list.
Due to the shortage of suitable family housing in Presidio, we
ask that only those Officers who intend to bring their families to
Presidio to reside full time, ask to be considered for this
housing. (Joint Ex. 3)
Following this memorandum, Border Patrol Agent James K. Kramer
submitted a memorandum on August 16, 1979 requesting consideration for
government housing. Kramer's family consisted of his wife and himself.
On or about September 25, 1979 Kramer was offered a government trailer
and declined it. (Tr. 47; Respondent's Ex. 1, 3).
On September 28, 1979 the Chief Patrol Agent, Marfa, Texas sent
another memorandum to all INS employees at Presidio concerning
government housing. The memorandum stated, in part, as follows:
All requests for Government owned housing must be directed to
the Chief Patrol Agent, Marfa, Texas. Upon receipt of the
request, your name will be placed on a list according to the date
of the request. When living quarters become available you will be
advised. If you choose to decline Government owned housing, you
must submit a memorandum to this Office advising of the
declination. Your name will then be removed from the list and you
will not be considered again until you submit another written
request at which time you will again be placed on the bottom of
the list. (Joint Ex. 4).
The Border Patrol agents in Presidio were aware at this time that one
of the government-owned houses would soon be vacated by a transferring
agent, John Garza. Consequently, James A. Kramer submitted a new
written request for the house on October 6, 1979, and Robert Davis
submitted a written request on October 9, 1979. (Tr. 51, 65,
Respondent's Ex. 4, 5). Davis is married, has three children, and has
been assigned to Presidio, Texas since March 6, 1978. (Tr. 58).
When the house became vacant, Thomas Harrison, Acting Patrol Agent in
Charge, Presidio examined the list of persons who had made a written
request. He discovered that Agent J. J. Rena was at the top of the
list. The house was offered to Rena, who declined it as insufficient.
The next person on the list by date of request was Supervisory Patrol
Agent Stan Spencer. Spencer was offered the house and accepted. The
Patrol Agent in Charge testified that Spencer was not given the house
because he was a Supervisory Patrol Agent, but because he was next on
the list. (Tr. 112-,13, 121). During a staff meeting in early November
1979 the Patrol Agent in Charge advised the agents that Spencer had been
given the house. (Tr. 65).
The Chief Patrol Agent, Marfa sector, received information that the
Border Patrol agents in Presidio were confused over the policy used for
selecting individuals for housing. He sent the assistant chief and
deputy chief patrol agents to Presidio to ascertain the positions of the
agents at the station concerning a housing policy. The agents were
advised of the purpose of the meeting, and the two officials then left
while the agents prepared a handwritten statement of what they wanted in
a housing policy. No Union representative was present at this meeting.
There is no evidence that the Union was notified of the meeting. (Tr.
124-125; 129-130).
On November 13, 1979, Union chief steward George Campbell was
informed by an agent in Presidio that the Supervisory Patrol Agent had
been given one of the government houses in violation of the past
practice. (Tr. 13, 14). Campbell and the Union vice president, John
O'Donnell, met with Chief Patrol Agent Sheppard in Marfa, Texas the
following day. Campbell told the Chief that there had been a change in
policy concerning the assignment of government housing at Presidio, and
the Union had not been informed of the change prior to implementation.
The Chief replied that he did not know he had to negotiate with the
Union on a change of policy. (Tr. 15, 84, 85). The Union officials
requested to bargain over two issues: the general housing policy at
Presidio and the assignment of Supervisory Patrol Agent Spencer to
government housing. Sheppard stated that Spencer had been placed in
government housing because he was the supervisor in the area. Sheppard
agreed that Campbell and O'Donnell should go to Presidio to receive
input from the agents stationed there as to what they wanted in a
housing policy. Sheppard also stated that he had not made a decision
about allowing Spencer to remain in the house. (Tr. 17, 84, 85).
Campbell and O'Donnell met with the agents at Presidio and later
presented a memorandum to Chief Sheppard. The employees wanted a
permanent list of employees interested in government housing with the
entry on duty date as the determining factor. (Tr. 18, 86, 87, Joint
Ex. 6). In December 1979 Campbell and O'Donnell again met with Sheppard
to ask whether he had made a decision on whether or not he would allow
Spencer to remain in the government house. Sheppard informed the Union
officials that he was not locked in to any position and had not decided
whether Spencer would remain. (Tr. 19, 87).
On January 2, 1980, a meeting was arranged to discuss the housing
problem in Presidio. Chief Sheppard presented the Union officials with
a draft of the proposed housing policy in Presidio. According to the
policy and the decision by the Chief, Spencer would be allowed to remain
in the government house. Although the Union agreed that future
Supervisory Patrol Agents would have government housing reserved for
them, /8/ since they would no longer be eligible for hardship rotation,
the Union again requested that Spencer be removed from the house
inasmuch as there were still men ahead of Spencer in seniority who
wanted the government house, and Spencer was eligible for hardship
rotation. (Tr. 22, 89, 102). Chief Sheppard, however, stated that he
had decided Spencer would remain in the house. The housing policy, as
discussed with the Union on January 2, was implemented by Respondent.
(Tr. 20, 22, 88, 89, 90, Joint Exh. 7).
There is no evidence that, prior to November 1979, the Union was ever
advised of written policies concerning the assignment of housing to
personnel at Presidio. (Tr. 92).
Discussion, Conclusion, and Recommendations
The complaint alleges that on or about November 11, 1979 Respondent
violated section 7116(a)(1) and (5) of the Statute by unilaterally
changing existing conditions of employment concerning the assignment of
government-owned housing without furnishing the Union an opportunity to
bargain. Respondent argues that there has been no change regarding the
assignment of housing, in that, since 1971, it has been the policy that
two of the houses would be reserved for Border Patrol supervisory
personnel.
The record reflects that only the Patrol Agent in Charge has
consistently had a house reserved. Since 1975 the remaining houses were
occupied by agents on the basis of various factors, including primarily
seniority at Presidio and size of family. Agents reporting to Presidio
were so informed. Moreover, the February 13, 1979 and August 14, 1979
memoranda from the Chief Patrol Agent, Marfa sector, referred only to a
reservation of one house for the Patrol Agent in Charge, as far as the
Border Patrol was concerned. The August 5, 1971 and February 6, 1979
basic memoranda from the regional offices both referred to "equal and
fair consideration . . . to all personnel" under various criteria and
also did not specifically reserve two houses for Border Patrol
supervisory personnel.
Thomas Harrison, the Patrol Agent in Charge, Presidio, Texas
testified that Spencer was not given the house in early November 1979
because he was a Supervisory Patrol Agent, but, rather, because he was
next on the list by virtue of the date of his written request. I credit
Mr. Harrison's testimony. It is consistent with the September 28, 1979
policy memorandum from Mr. Harrison's supervisor, the Chief Patrol
Agent, Marfa sector, which specified that names would be placed on the
list for government housing according to the date of the written
request. No other factor was mentioned. This September 28, 1979 policy
represented a drastic change from the Chief's memorandum issued a little
over a month earlier, August 14, 1979, which stated that residences
would be offered based on size of family and seniority at Presidio. It
also represented a radical change from the memorandum issued in February
13, 1979 which specified various similar criteria for the assignment of
housing, including date of request, date of entry on duty at Presidio,
size of family, and numerous other factors.
There is no evidence that the Union was notified of the September 28,
1979 change and given an opportunity to request and engage in meaningful
negotiations prior to effectuation of the change and awarding of the
house to Supervisory Patrol Agent Spencer in November 1979.
Respondent's willingness to receive the Union's proposals after the
change was made, and as to what the future housing policy should be, did
not cure its improper refusal to negotiate in good faith prior to making
changes in established conditions of employment. Department of the Air
Force, Scott Air Force Base, Illinois and National Association of
Government Employees, Local R7-23, 5 FLRA No. 2 (1981). Respondent's
conduct violated sections 7116(a)(1) and (5) of the Statute as alleged
in the complaint.
The General Counsel also alleged that Respondent violated sections
7116(a)(1) and (5) by bypassing the Union on or about November 9, 1979
and meeting directly with employees for the purpose of discussing the
housing policy at Presidio, Texas. Respondent asserts that the
discussion with employees was purely a fact-finding mission.
The record reflects that the two management witnesses involved in the
alleged bypass, Mel Heck and Hugh Rushton, admitted their presence at
the meeting and testified they had been instructed by Chief Sheppard to
find out what the agents in Presidio wanted in a housing policy. The
two management officials contacted the unit employees as to the purpose
of their visit and secured a handwritten policy containing the unit
employees' collective views concerning the housing policy. The Union
was not contacted prior to this meeting at Presidio, and no Union
representatives were present at the meeting.
I agree with counsel for the General Counsel's observation that the
evidence clearly demonstrates a classic bypass situation. Without any
apparent thought as to the function of the exclusive representative and
the agency's responsibilities towards the exclusive representative,
Respondent sent two management officials from the Marfa sector to
ascertain what bargaining unit employees at the Presidio station wanted
in a housing policy. The exclusion of the exclusive representative from
this meeting resulted in a bypass of the exclusive representative with
regard to the very matters for which it was chosen by the unit employees
to act as their representative. As stated in Department of Health,
Education and Welfare, Social Security Administration, 1 FLRA No. 59
(1979):
(T)he Union's sole right to express opinion and sentiments on
behalf of employees was substantially eroded when the Center
obtained individual employees views of matters appropriately
belonging to the exclusive representative. In the scheme of
collective bargaining it is the exclusive representative (or its
agent) which speaks on behalf of the employees using its
evaluation of employee sentiment and such other matters it chooses
to take into account that the Center is obligated to consider.
When the Union is bypassed in this regard, bargaining, in effect,
takes place directly with employees and not through the exclusive
representative in derogation of the exclusive representative's
rights.
Accordingly, by dealing directly with the unit employees in these
circumstances, Respondent bypassed the Union in derogation of its status
as the exclusive representative of unit employees and violated sections
7116(a)(1) and (5), as alleged.
Based on the foregoing findings of fact and conclusions, it is
recommended that the Authority issue the following Order:
Order
Pursuant to section 2423.29 of the rules and regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
United States Department of Justice, United States Immigration and
Naturalization Service shall:
1. Cease and desist from:
(a) Changing established conditions of employment concerning
the assignment of government-owned housing, or any other term and
condition of employment, without first notifying American
Federation of Government Employees, AFL-CIO, Local 2509, or any
other exclusive representative of its employees, and affording
such representative the opportunity to negotiate in good faith to
the full extent consonant with law.
(b) Bypassing the American Federation of Government Employees,
AFL-CIO, Local 2509, the exclusive representative of its
employees, or any other exclusive representative, and dealing
directly with unit employees concerning personnel policies and
practices and matters affecting working conditions.
(c) In any like or related manner interfering with,
restraining, or coercing its 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 carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind the September 28, 1979 memorandum from the Chief
Patrol Agent, Marfa, Texas establishing a procedure of assigning
government-owned housing in Presidio, Texas according to the date
of an employee's written request for such housing.
(b) Reevaluate the assignment of a government owned house to
Supervisory Patrol Agent Stanley U. Spencer in November 1979 and
reevaluate all employees in Presidio, Texas for eligibility for
this house in accordance with the established terms and conditions
for assignment of housing set forth in the August 14, 1979
memorandum from the Chief Patrol Agent, Marfa, Texas.
(c) If, following the action taken in accordance with paragraph
2(b), above, it should develop that there was an improper failure
to assign the housing in question to an employee, the house in
question shall be vacated, the employee shall be assigned the
house and reimbursed for any loss of monies occasioned by the
improper failure to assign housing.
(d) Notify the American Federation of Government Employees,
AFL-CIO, Local 2509, or any other exclusive representative of its
employees, of any proposed change in established conditions of
employment concerning the assignment of government-owned housing,
or any other term and condition of employment, and, upon request,
afford such representative the opportunity to negotiate in good
faith to the full extent consonant with law.
(e) Post at its facilities in the Marfa, Texas sector 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 Chief Patrol Agent, Marfa, Texas 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. The Chief
Patrol Agent shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other
material.
(f) 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.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: September 29, 1981
Washington, DC
APPENDIX
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 change established conditions of employment concerning
the assignment of government-owned housing, or any other term and
condition of employment, without first notifying American Federation of
Government Employees, AFL-CIO, Local 2509, or any other exclusive
representative of our employees, and affording such representative the
opportunity to negotiate in good faith to the full extent consonant with
law.
WE WILL NOT bypass the American Federation of Government Employees,
AFL-CIO, Local 2509, the exclusive representative of our employees, or
any other exclusive representative, and deal directly with employees
concerning personnel policies and practices and matters affecting
working conditions.
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 September 28, 1979 memorandum from the Chief
Patrol Agent, Marfa, Texas which established a procedure of assigning
government-owned housing in Presidio, Texas according to the date of an
employee's written request for such housing.
WE WILL reevaluate the assignment of a government-owned house to
Supervisory Patrol Agent Stanley U. Spencer in November 1979, and
reevaluate all employees in Presidio, Texas for eligibility for this
house in accordance with the established terms and conditions for
assignment of housing set forth in the August 14, 1979 memorandum from
the Chief Patrol Agent, Marfa, Texas. If, following this reevaluation,,
it should develop that there was an improper failure to assign the
housing in question to an employee, the house in question shall be
vacated, the employee shall be assigned the house and reimbursed for any
loss of monies occasioned by the improper failure to assign housing.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, Local 2509, or any other exclusive representative of our
employees, of any proposed change in established conditions of
employment concerning the assignment of government-owned housing, or any
other term and condition of employment, and, upon request, afford such
representative the opportunity to negotiate in good faith to the full
extent consonant with law.
(Agency or Activity)
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, Region Six, Federal Labor Relations Authority, Bryan
& Ervay Street, Old Post Office Building, Room 450, Dallas, Texas 75221.
Telephone: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel filed an untimely opposition to the
Respondent's exceptions which has not been considered.
/2/ On page 2 of his Decision, the Judge inadvertently described the
unit represented by the Charging Party as an "appropriate unit of
Respondent's employees in the Marfa sector of the United States Border
Patrol." The record discloses, however, and the Authority finds that the
Charging Party represents a nationwide unit of all Immigration and
Naturalization Service employees assigned to its Border Patrol Offices.
/3/ In this regard, the record indicates that (1) the Presidio
station has been designated a hardship station to which Border Patrol
agents are assigned to serve for 24 months before being rotated to a
different geographical area; (2) there is a lack of adequate housing in
the area; (3) the government-owned housing in question was constructed
for the benefit and use of the Respondent's employees stationed at the
hardship location; and (4) the Respondent's representative in that area
had been delegated the responsibility for assignment of the available
housing. See, e.g., American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
6 FLRA 423 (1981), affirmed sub nom. Office of Personnel Management v.
FLRA, 706 F.2d 1229 (D.C. Cir. 1983), citing American Federation of
Gov't Employees and Air Force Logistics Command, Wright-Patterson Air
Force Base, 2 FLRA 604, 606 (1980), enforced as to other matters sub
nom. Dept. of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert.
denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), wherein proposals for
day care facilities were held to concern a condition of employment;
National Federation of Federal Employees and Headquarters, U.S. Army
Garrison, Yongsan, Korea, 4 FLRA 139 (1980), enforced sub nom.
Department of Defense, et al. v. FLRA, 685 F.2d 641 (D.C. Cir. 1982),
where the Authority held that a proposal related to ration control
involved the employees' conditions of employment in the circumstances
presented.
/4/ The Authority notes that the Respondent did not argue to the
contrary in closing arguments at the hearing in lieu of a post-hearing
brief to the Judge, but instead contended essentially that there had
been no change in established policies and practices. The Respondent
now contends before the Authority, in seeking reversal of the Judge's
Decision, that allocation of government housing concerns the "methods"
and "means" of performing the agency's work within the meaning of
section 7106(b)(1) of the Statute and therefore is negotiable only at
its election. However, section 2429.5 of the Authority's Rules and
Regulations provides that "(t)he Authority will not consider . . . any
issue . . . which was not presented in the proceedings before the . . .
Administrative Law Judge . . . . " In any event, there is no basis upon
which to conclude that the allocation of government housing is directly
related either to the "method" of performing the Agency's work, i.e.,
the way in which it administers the immigration laws, or the "means,"
i.e., the "tools," "devices," or "instrumentalities" by which the Agency
will do its work. Rather, housing is a matter principally affecting
employees' working conditions. See, e.g., American Federation of
Government Employees, AFL-CIO, Local 3525 and United States Department
of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982) (Proposal
1); National Federation of Federal Employees, Local 541 and Veterans
Administration Hospital, Long Beach, California, 12 FLRA No. 62 (1983).
/5/ The Judge's recommended remedy has been modified to reflect the
parties' agreement of January 2, 1980, referred to on page 7 of the
Judge's Decision, that in the future Supervisory Patrol Agents would
have government-owned housing reserved. Thus, upon compliance, if it
develops that there was an improper assignment of the housing to
Spencer, and that such housing has subsequently been vacated and then
assigned to another supervisor pursuant to the parties' agreement, the
remedy for the bargaining unit employee adversely affected by the
improper assignment of housing to Spencer shall be limited to
reimbursement for loss of monies resulting from the improper assignment
for the period between the improper assignment and the subsequent
assignment of housing under the parties' agreement.
/6/ The complaint was amended at the hearing to reflect the correct
name of the Charging Party.
/7/ The complaint was amended at the hearing to include this
allegation as a separate violation of 5 U.S.C. 7116(a)(1) and (5). The
matter was fully litigated at the hearing.
/8/ John O'Donnell testified that the Union was willing to agree to
have a house reserved for future Supervisory Patrol Agents because
Respondent stated that they would no longer be eligible for hardship
rotation. They could, therefore, be stationed in Presidio for a longer
period of time. However, Spencer was eligible for hardship rotation.
(Tr. 22, 89, 102).