United States Department of Homeland Security U.S. Customs And Border Protection El Paso, Texas (Agency)
| Decision Date | 30 April 2018 |
| Docket Number | 0-AR-5187 |
| Citation | 70 FLRA No. 102 |
| Parties | UNITED STATES DEPARTMENT OF HOMELAND SECURITY U.S. CUSTOMS AND BORDER PROTECTION EL PASO, TEXAS (Agency) and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES NATIONAL BORDER PATROL COUNCIL LOCAL 1929 (Union) |
| Court | Federal Labor Relations Authority Decisions |
Before the Authority: Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members
Arbitrator Vicki Peterson Cohen issued an award finding that the Customs and Border Protection (CBP) violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) [1] and Article 3A of the parties' collective-bargaining agreement (Article 3A) €“ which requires bargaining only to the extent required by law €“ by failing to bargain over matters related to immigration inspections conducted by border patrol agents.
We take the opportunity in this case to address the plain-language distinction between conditions of employment and working conditions as those terms are used in our Statute. Specifically, the issuance of a memorandum which affects working conditions, but not conditions of employment, does not constitute a change over which CBP must bargain. Under the circumstances of this case, CBP had neither a statutory nor a contractual duty to bargain. Therefore, we set aside the award.
The border patrol agents in this case work at border checkpoints in the El Paso, Texas sector. Their primary job is to inspect all vehicles trying to gain entry into the United States. [2] The checkpoint has lanes where vehicles enter, stop, and are then inspected. The entry lanes are the "primary" inspection area. [3] When a vehicle enters the checkpoint, one or two agents inspect the vehicle, scan the vehicle's license plate number, and inspect any identifying documents carried by the vehicle's occupants. The primary goal of this stop is to intercept "fraudulent documents, " "imposter cars, " and narcotics, among other contraband. [4] Put simply, the agents are the first line of defense to prevent unauthorized vehicles or persons from entering the United States illegally.
Agents working in the primary inspection area have discretion to refer any vehicle to a "secondary" inspection area if the inspecting agent determines that the vehicle or occupants require a more thorough inspection. [5] Secondary area inspections tend to take longer because they are more thorough and often require verification of license plate information and identifying documents which are run through various databases and watch lists. There may also be a more thorough inspection for narcotics. The primary and secondary inspection areas are located adjacent to each other or, in some cases, the secondary area will be off to the side and to the front of the primary inspection area. [6]
On any given day, agents are assigned to work one or both areas, but the duties they perform are essentially the same regardless of which area they are assigned. [7]
At some point in 2014, the division chief for the El Paso sector became aware that some of the "agents were failing very badly" at intercepting fraudulent and imposter vehicles and documents. [8] Around the same time, CBP received specific "intelligence indicating people were using imposter and fraudulent documents in order to gain entry into the U.S. at checkpoints." [9] To address these deficiencies, on October 29, 2014, the division chief sent the memorandum at issue in this case (the inspection memo) to "make[] the agents more effective at intercepting fraudulent and imposter immigration documents." [10] In effect, the memorandum simply directed which vehicles and under what circumstances vehicles would be referred to a secondary inspection area. [11]
Communicating supervisory instructions in this manner was not a new practice for CBP and its employees. Between 2003 and 2014, CBP routinely issued similar instructions, guidelines, and directives to clarify how the checkpoint inspections should be conducted and prioritized. [12]
In response to the inspection memo, the Union filed a grievance alleging that CBP violated the Statute and Article 3A by unilaterally changing a condition of employment related to immigration inspections. CBP denied the grievance, and the parties submitted the matter to arbitration.
The Arbitrator framed the issue as: Did CBP violate the Statute or Article 3A "when it implemented the [inspection memo]?" [13] Article 3A requires CBP to provide the Union with notice of, and an opportunity to bargain over, proposed "changes... to existing rules, regulations[, ] and... practices." [14] It also states that "[n]othing in this article shall require either party to negotiate on any matter [that] it is not obligated to negotiate under applicable law." [15]
Before the Arbitrator, the parties disputed whether the inspection memo constituted a change in the agents' conditions of employment. CBP argued that it did not have a duty to bargain because the memo "did not require the agents to do something that was not previously required of them." [16]
The Arbitrator agreed with the Union and found that the inspection memo constituted a change. Specifically, she noted that the memo €“ by requiring agents to refer certain vehicles to the secondary inspection area €“ resulted in "fewer [primary-area] inspections" and "increase[d]" duties in the secondary area. [17] According to the Arbitrator, after CBP issued the inspection memo, agents in the secondary inspection area had to "direct[] additional traffic[] and... input[] more data." [18] After determining that those "change[s]" had more than a de minimis effect, [19] the Arbitrator concluded that CBP violated § 7116(a)(1) and (5) of the Statute and Article 3A by failing to give the Union notice and an opportunity to bargain over the inspection memo.
As a remedy, the Arbitrator directed CBP to return to the status quo ante "until the parties have bargained over the implementation and impact of the changes in conditions of employment proposed under the [inspection memo]." [20]
CBP filed exceptions to the award. [21]
CBP asserts that the Arbitrator erred in concluding that the inspection memo constituted a change in the agents' conditions of employment. [22] Because this exception challenges the award's consistency with law, we review the award de novo. [23]
An unfair labor practice charge, which alleges a violation of § 7116 of the Statute, may be raised either as a grievance or under Statutory procedures. Here, the Union alleged both a statutory and a contractual violation.
Our Statute requires that an agency must provide notice, and an opportunity to bargain, before it may change "conditions of employment." [24] "Conditions of employment" are defined, in § 7103(a)(14), as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions." [25] Through a convoluted evolution, however, the Authority came to the erroneous conclusion that "there is no substantive difference between [the terms] 'conditions of employment' and 'working conditions.'" [26] That notion, however, defies both judicial and commonsense rules of definition and is "support[ed] [by nothing more] than the Authority's own repetition of it." [27] It is imperative, therefore, that we take this opportunity to clarify that there is a distinction between those terms.
It is a basic canon of statutory interpretation that "Congress acts intentionally" when it "inclu[des] or exclu[des]" particular words in a statute. [28] Congress defined the term " conditions of employment " in § 7103(a)(14) as those "personnel policies, practices, and matters" which "affect[] working conditions ." [29] Under accepted rules of statutory interpretation, two different terms used in the same context cannot mean the same thing and therefore must mean something different. In the context of our Statute, the distinction between these two terms lies at the very foundation of differentiating between purported changes that are, and are not, subject to a duty to bargain.
To assert that the terms "conditions of employment" and "working conditions" mean the same thing [30] is to engage in a type of circular reasoning that has been criticized by the United States Supreme Court. [31] It is little different than trying to define a rock as a rock-like object or a cellular phone as a phone that is cellular. It means nothing.
It is obvious to us that Congress acted intentionally in § 7103(a)(14) when it used the one to help define the other. [32] It is therefore imperative that we respect that distinction and define the differences for the labor-management relations community.
The terms are related, but they are not synonymous. [33] On this point, the U.S. Supreme Court explained that while the term "conditions of employment" is susceptible to multiple interpretations, the term "working conditions, " as used in § 7103(a)(14), "more naturally refers... only to the 'circumstances' or 'state of affairs' attendant to one's performance of a job." [34] In acknowledging the distinction between those terms, the Court cited with approval the U.S. Court of Appeals for the District of Columbia Circuit, which had earlier held that "working conditions" are "the day-to-day circumstances under which an employee performs his or her job." [35]
The Arbitrator determined that the memo constituted a "change" because it resulted in "fewer [primary-area] inspections" and "increase[d]" the duties of the agents assigned to the secondary inspection area. [36] We disagree for...
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