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44 FLRA No. 85

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

WASHINGTON, D.C.

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

(Charging Party/Union)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL

(Charging Party/Union)

3-CA-00497

DECISION AND ORDER

April 30, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs.^(*) The Respondent also filed a motion to strike parts of the General Counsel's brief to the Authority, and the General Counsel filed an opposition to the Respondent's motion.

The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing revisions to the Respondent's administrative manual concerning firearms policy at a time when negotiations as to those revisions were at impasse and the matter was pending before the Federal Service Impasses Panel (the Panel). For the reasons stated below, we find that the Respondent committed the unfair labor practices alleged in the complaint.

II. Facts

At all times material, the National Border Patrol Council and the National Immigration and Naturalization Service Council (collectively referred to as the Councils) have been the exclusive representatives of nationwide bargaining units of the Respondent's employees.

Between October 11, 1989, and October 20, 1989, the Respondent and the Councils engaged in negotiations over the Respondent's proposed revisions to its Administrative Manual, Section 4210, Service Firearms Policy. On October 20, 1989, at a meeting with a mediator from the Federal Mediation and Conciliation Service (FMCS), the mediator and the parties agreed that further efforts at mediation would serve no purpose and that mediation had failed. Six proposals remained in dispute between the parties. At the end of the meeting, the Respondent informed the Councils' representatives that the Respondent: (1) intended to implement all of the proposed revisions to the firearms policy on November 1, 1989, including all agreed-upon matters; and (2) "questioned its duty to bargain with regard to the six union proposals remaining in dispute." Stipulation, paragraph 9.

On October 24, 1989, the Councils filed a request for assistance with the Panel concerning the parties' negotiations, describing the six proposals remaining in dispute. Also on October 24, 1989, the Councils notified the Respondent that they had invoked the assistance of the Panel as to the six proposals and "insisted that the implementation of those portions of the revised Firearms Policy where agreement had not been reached be held in abeyance pending the final resolution of the matter[s]" before the Panel. Id., paragraph 11.

On November 1, 1989, the Respondent implemented the entire revised firearms policy, including the portions of the revised policy that related to the six proposals before the Panel. The parties stipulated that the Councils: (1) agreed that the Respondent could implement the portions of the revised firearms policy on which the parties had agreed; but (2) did not agree that the Respondent could implement the portions of the revised firearms policy that were related to the six proposals before the Panel.

On November 9, 1989, the Respondent advised the Panel that it considered the six proposals nonnegotiable. On December 11, 1989, the Panel declined to assert jurisdiction over the dispute on the basis that the obligation to bargain between the parties over the six proposals first had to be resolved in an appropriate forum before a determination could be made whether the parties, in fact, had reached an impasse.

Between December 23, 1989, and February 26, 1990, the Councils filed petitions for review with the Authority seeking a determination as to the negotiability of the six proposals. On April 30, 1991, the Authority issued its decision in American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521 (1991) (AFGE, INS). In AFGE, INS, the Authority dismissed the petition for review as to the first sentence of Proposal 1, the first four sentences of Proposal 2, and Proposals 3, 4, and 6. The Authority ordered the Respondent, upon request, to bargain over the remaining portions of Proposals 1 and 2 and over Proposal 5. On June 25, 1991, the Respondent filed a petition for review of the Authority's decision with the U.S. Court of Appeals for the Fifth Circuit as to those matters that the Authority found negotiable. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 91-4525 (5th Cir. filed June 25, 1991) (INS v. FLRA).

The parties stipulated that the negotiability of the six proposals was decided by the Authority in AFGE, INS, and that "[t]he negotiability of these proposals is not an issue to be resolved in this unfair labor practice [proceeding]." Stipulation, paragraph 13. The parties also stipulated that the General Counsel takes the position that: (1) "management's alleged misconduct in this case does not turn on the negotiability or nonnegotiability of the six proposals, but rather on the fact that management implemented the remainder of its firearms policy on November 1, 1989[,] prior to the action of the [Panel]" on December 11, 1989, declining jurisdiction; and (2) "while the Authority and the General Counsel ordinarily will not process an unfair labor practice charge and a petition for review of a negotiability issue simultaneously[,] pursuant to section 2423.5 of the Authority's Regulations, no such selection of procedures was necessary under the circumstances of the instant case." Id., paragraphs 17-18.

III. Preliminary Matter

The Respondent moves to strike the portions of the General Counsel's brief concerning the appropriateness of a status quo ante remedy. The Respondent states that the General Counsel "has stipulated that questions of negotiability relating to Union proposals that were before the Impasses Panel are irrelevant to the theory of the [c]omplaint." Motion to Strike at 1 (emphasis in original). The Respondent argues that the General Counsel, therefore, "cannot now assert that the proposals were negotiable as an alternative basis for the violation that was asserted in the [c]omplaint or as a basis for any remedy to be ordered." Id.

The General Counsel opposes the Respondent's motion, arguing that the stipulation does not purport, and should not be found, to define the limits of the appropriate remedy in this case. The General Counsel acknowledges stipulating that the Respondent's alleged violation of the Statute does not depend on whether the Respondent's proposals are negotiable. The General Counsel argues, however, that the negotiability of the proposals is nonetheless relevant to the question of the appropriate remedy. The General Counsel asserts that it is "incorrect for Respondent to suggest in the circumstances of this case that a status quo ante remedy may not be considered." Opposition to Motion to Strike at 3-4.

We will deny the Respondent's motion. The General Counsel does not assert the negotiability of the proposals as a basis for the violation, but rather only as a basis for determining the appropriateness of a status quo ante remedy in this case. We find nothing in the parties' stipulation that precludes the General Counsel from presenting arguments as to the appropriateness of a status quo ante remedy in this case. Moreover, as the parties' stipulation acknowledges, the Authority has already made a negotiability determination on the proposals in AFGE, INS, and we are not precluded from considering that decision in determining an appropriate remedy. The Respondent's arguments as to the appropriate remedy are considered below. The motion to strike portions of the General Counsel's brief is denied.

IV. Positions of the Parties

A. General Counsel

According to the General Counsel, when the parties reach an impasse in their negotiations and one party timely invokes the services of the Panel, the status quo must be maintained to the maximum extent possible, that is, to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate.

The General Counsel states that it is undisputed that: (1) despite mediation assistance on the final day of negotiations, October 20, 1989, the Respondent and the Councils were unable to reach agreement on six proposals; (2) at that point, the Respondent notified the Councils that it intended to implement the entire firearms policy; and (3) the Councils filed their request for Panel assistance on October 24, 1989, and notified the Respondent of this action on the same day.

The General Counsel stated that it anticipated the Respondent would argue that because the Panel declined jurisdiction, the Respondent was relieved of any duty to maintain the status quo. Relying on Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940 (1990) (DHHS, Region II), the General Counsel asserts that the fact that the Panel ultimately declined jurisdiction does not excuse the Respondent's failure to maintain the status quo. The General Counsel also asserts that the Respondent's view of the Panel's authority minimizes the important role Congress envisioned for the Panel, as stated by the Authority in National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 414-16 (1990).

The General Counsel also anticipated the Respondent's argument that the General Counsel should not have processed this unfair labor practice because it involves the same issues involved in the negotiability appeal decided by the Authority. In rebuttal, the General Counsel argues that section 2423.5 of the Authority's Regulations provides only that "the General Counsel ordinarily will not process" related unfair labor practice complaints and negotiability appeals simultaneously. General Counsel's Brief at 8 (emphasis in original).

The General Counsel argues that the unfair labor practice procedures and the negotiability procedures are not mutually exclusive, particularly where different issues are involved in the respective proceedings. According to the General Counsel, this case involves an issue regarding the duty to maintain the status quo while the parties are before the Panel, not issues regarding the negotiability of the parties' proposals. The General Counsel states that only the remedy in this unfair labor practice case is affected by the Authority's negotiability decision regarding the parties' proposals and, therefore, "no interest of administrative economy would [have been] served by deferring [action on the] unfair labor practice charge" in this case. Id. at 9.

Finally, the General Counsel asserts that the stipulated record contains no evidence to support the Respondent's assertion that the implementation of the entire firearms policy on November 1, 1989, was consistent with the necessary functioning of the Agency. The General Counsel contends that the Respondent, therefore, violated section 7116(a)(1), (5), and (6) of the Statute when it failed to maintain the status quo after the Councils invoked the Panel's services.

As to the appropriate remedy, the General Counsel contends that it is clear, with respect to the proposals found negotiable by the Authority in AFGE, INS, that the Respondent changed negotiable conditions of employment without fulfilling its duty to bargain while those proposals were pending before the Panel. The General Counsel contends that, applying the factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), to the proposals found negotiable in AFGE, INS, a status quo ante remedy is appropriate in this case.

B. Respondent

The Respondent acknowledges that an agency's duty to bargain includes the obligation to maintain the status quo while matters are at impasse before the Panel. Relying on the Authority's decisions in Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651 (1988) (Social Security Administration) and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985) (Department of the Treasury), the Respondent argues, however, that there can be no violation of the duty to maintain the status quo if the proposals at issue before the Panel are nonnegotiable.

The Respondent contends that because the Panel has no jurisdiction to decide questions of negotiability, an agency should have no duty to maintain the status quo once the Panel has declined jurisdiction on that basis. The Respondent asserts that the Panel found that the proposals "were not facially negotiable" and that "a substantive question of negotiability existed with regard to each proposal." Respondent's Brief at 6. The Respondent acknowledges that it acted at its peril in implementing the disputed portions of the revised firearms policy. However, the Respondent argues that the fact that in AFGE, INS the Authority later found some proposals negotiable cannot be relied on to find a violation in this case because the General Counsel stipulated that the negotiability of the proposals was not a factor in this unfair labor practice case.

According to the Respondent, if the finding of an unfair labor practice violation depends on whether the disputed proposals were negotiable, action on the complaint in this case should have been stayed pending the court's decision on the Councils' appeal from the Authority's negotiability decision. The Respondent argues, that, at a minimum, determination of the scope of the appropriate remedy would require a stay. The Respondent contends, therefore, that proceeding simultaneously on the negotiability appeal and the unfair labor practice complaint is "duplicative and wasteful." Id. at 7. The Respondent argues that section 2423.5 of the Authority's Rules and Regulations is designed to preclude duplicative proceedings, and thus ensure administrative economy, by requiring a union to select the procedure under which it intends to proceed.

The Respondent acknowledges that section 2423.5 does not provide that the selection of one procedure will preclude the Authority from proceeding under the other procedure. However, the Respondent argues that a decision by the Authority to proceed under both procedures should be "knowing and deliberate." Id. at 8. The Respondent notes that in this case it informed the General Counsel that the Councils needed to select the procedure under which they intended to proceed. According to the Respondent, the General Counsel erred in not requiring the Councils to select one procedure under which to proceed.

The Respondent argues that by refusing to recognize the consequences of the negotiability determination in the unfair labor practice complaint, the General Counsel ignored facts important to a final decision in this case. The Respondent contends that if the complaint is not dismissed, resolution of this case should be deferred pending the court's decision on the negotiability appeal.

V. Analysis and Conclusions

We find that, by implementing revisions to its firearms policy while six proposals concerning those revisions were before the Panel, the Respondent violated section 7116(a)(1), (5), and (6) of the Statute.

A. The Respondent Was Not Relieved of Its Obligation to Maintain the Status Quo on the Basis that the Panel Subsequently Declined Jurisdiction

Once parties reach an impasse in their negotiations and one party timely invokes the services of the Panel, the status quo must be maintained to the maximum extent possible, that is, to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate. Department of the Treasury, 18 FLRA at 468. A failure or refusal to maintain the status quo during the time that the parties are before the Panel constitutes a violation of section 7116(a)(1), (5), and (6) of the Statute. U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435, 436-37 (1986). See also DHHS, Region II, 35 FLRA at 949-50.

We find no basis on which to conclude that the Respondent was relieved of its duty to maintain the status quo while the parties' dispute was before the Panel in the circumstances of this case. As stipulated, the parties engaged in negotiations over proposed revisions to the Respondent's firearms policy, and a mediator from the FMCS agreed with the parties that mediation had failed. The Councils timely invoked the services of the Panel upon notice by the Respondent that it intended to implement the revisions of the firearms policy on November 1, 1989. The Panel declined to assert jurisdiction over the dispute on the basis that the obligation to bargain over the six proposals first had to be resolved in an appropriate forum before a determination could be made whether the parties, in fact, had reached an impasse.

The Authority has held that an agency's obligation to maintain the status quo while matters are before the Panel is not affected by the nature of the action the Panel eventually takes. DHHS, Region II, 35 FLRA at 950. As the Authority explained in DHHS, Region II:

[T]he purpose of the requirement [that the parties maintain the status quo while they are before the Panel] is to facilitate the Panel's consideration of negotiation impasses and allow the Panel to take whatever action it deems appropriate to resolve disputes. Allowing an agency to implement a change based on its speculation as to what action the Panel will take after implementation would, in our view, undermine the important role played by the Panel in collective bargaining under the Statute.

Id. Similarly, in order to preserve the Panel's ability to resolve impasses, an agency cannot be allowed to implement a change based on its speculation as to what action the Authority may ultimately take in determining the negotiability of the proposals that are before the Panel. Permitting an agency to unilaterally change conditions of employment while an impasse involving those conditions of employment is before the Panel reduces the Panel's options for resolving the impasse and is inconsistent with the purposes of the status quo requirement.

We find that the cases relied on by the Respondent are inapposite. Social Security Administration did not involve a matter that was before the Panel. In Department of the Treasury, the agency was found not to have violated the Statute by implementing portions of its training and safety policy while other matters were pending before the Panel because the agency's action did not constitute a change in that policy and, therefore, the agency had no obligation to bargain over that action.

Accordingly, we conclude that while the six proposals were before the Panel the Respondent in this case was not relieved of its obligation to maintain the status quo on the basis that the Panel ultimately declined jurisdiction. In view of this determination, we deny the Respondent's request that resolution of this case be deferred pending the court's decision in INS v. FLRA.

B. The Respondent Was Not Prejudiced by the Failure to Hold the Unfair Labor Practice Matter in Abeyance

Section 2423.5 of our Regulations provides that where a union files an unfair labor practice charge involving a negotiability issue and a petition for review of the same negotiability issue, the Authority and the General Counsel ordinarily will not process both simultaneously. The Respondent contends that, by not requiring the Councils to select either the unfair labor practice or the negotiability procedures, the General Counsel abused the discretion provided under section 2423.5. The Respondent contends that the General Counsel's failure to require the selection of a procedure constitutes grounds for dismissal of the complaint.

We find no merit in this contention. We find, as argued by the General Counsel, that the issue in this unfair labor practice proceeding is not the same as the issue in the negotiability proceeding. This case concerns whether the Respondent violated section 7116(a)(1), (5), and (6) of the Statute by implementing revisions to the Respondent's firearms policy at a time when negotiations as to six of the Councils' proposals concerning those revisions were at impasse and the matter was pending before the Panel. The negotiability case concerned whether the Councils' six proposals were negotiable. Therefore, we find that the General Counsel did not abuse the discretion provided under section 2423.5 by not requiring the Councils to make a selection under that section.

C. The Respondent Violated the Statute

We have found that the Respondent was not relieved of its obligation to maintain the status quo on the basis that the Panel subsequently declined jurisdiction. The Respondent, therefore, was obligated to maintain the status quo to the extent consistent with the necessary functioning of the Respondent while the dispute concerning the six proposals was before the Panel. DHHS, Region II, 35 FLRA at 948-49. It did not do so. The Respondent implemented revisions to the entire firearms policy, including the portions of the policy related to the proposals in dispute before the Panel. The Respondent does not allege, and it is not apparent to us, that the necessary functioning of the Respondent required the Respondent to implement the portions of the policy related to the proposals in dispute before the Panel. Therefore, we find that, by implementing the firearms policy while the dispute concerning the six proposals was before the Panel, the Respondent violated section 7116(a)(1), (5), and (6) of the Statute.

VI. Remedy

The General Counsel states that, consistent with Authority precedent, where management has failed to fulfill its duty to bargain over the impact and implementation of a decision, the Authority will determine whether a status quo ante remedy is warranted by applying the factors set forth in FCI. The General Counsel contends that, applying the FCI factors here, a status quo ante remedy is appropriate as to those proposals found negotiable by the Authority in AFGE, INS. As noted above, the Respondent requests that the Authority stay any action on this matter pending a decision by the court in INS v. FLRA. The Respondent does not address the application of the FCI factors.

We note that the Authority has applied the FCI factors in determining an appropriate remedy in cases where management has failed to maintain the status quo in violation of section 7116(a)(6) of the Statute. See, for example, DHHS, Region II, 35 FLRA at 951-53. We will apply the FCI factors in this case. After taking into consideration the factors set forth in FCI, and noting that the Respondent has not addressed the application of those factors, we find that a status quo ante remedy is appropriate as to the changes that the Respondent made in its Manual firearms procedures related to the proposals found negotiable by the Authority in AFGE, INS. That is, a status quo ante remedy is appropriate as to the changes made by the Respondent related to: (1) the second sentence of Proposal 1 (Manual, Section 4C, Carrying Firearms), which concerned the Respondent's duty to serve a written notice of the withdrawal of the authority to carry a firearm on the affected employee; (2) the last sentence of Proposal 1 (Manual, Section 4C) and the last sentence of Proposal 2 (Manual, Section 21, Firearms Qualifications), which concerned the Respondent's duty to make a reasonable effort to find work not requiring the use of a firearm for an employee whose authority to carry a firearm has been withdrawn or restricted; and (3) Proposal 5 (Manual, Section 8A(6), Shooting Incidents), which concerned the Respondent's duty to allow Union representation for employees involved in a shooting incident.

We will order the Respondent to rescind the changes made in the Manual firearms procedures related to the proposals specified above and to return to the procedures in those areas that were in effect prior to its implementation of the changes. As the General Counsel does not seek such a remedy, we will not order the Respondent to rescind the changes made in its Manual firearms procedures related to the proposals found nonnegotiable by the Authority in AFGE, INS. Because the Respondent violated the Statute by implementing changes in its Manual firearms procedures related to all of the proposals in dispute before the Panel, we will also order the Respondent to bargain, upon request, over appropriate arrangements for employees adversely affected by those changes.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., shall:

1. Cease and desist from:

(a) Failing and refusing to cooperate in impasse proceedings by unilaterally implementing changes in its Administrative Manual, Section 4210, Service Firearms Policy,

while proposals concerning those changes are pending before the Federal Service Impasses Panel.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them 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) Rescind the changes implemented on November 1, 1989, in the firearms procedures contained in its Administrative Manual, Section 4210, Service Firearms Policy, Section 4C, Section 21, and Section 8A(6), related to the proposals over which the Federal Labor Relations Authority found it must bargain, and reinstate the procedures as to those sections that were in effect prior to November 1, 1989.

(b) Upon request, bargain with the American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council, the exclusive representatives of its employees, concerning appropriate arrangements for employees adversely affected by the changes it made in the firearms procedures related to all of the proposals in dispute before the Federal Service Impasses Panel when the changes were made.

(c) Post at its facilities wherever bargaining unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner, Immigration and Naturalization Service, 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, Washington, D.C. Regional Office, Federal Labor Relations Authority, 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 fail and refuse to cooperate in impasse proceedings by unilaterally implementing changes in our Administrative Manual, Section 4210, Service Firearms Policy, while proposals concerning those changes are pending before the Federal Service Impasses Panel.

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 changes implemented on November 1, 1989, in the firearms procedures contained in our Administrative Manual, Section 4210, Service Firearms Policy, Section 4C, Section 21, and Section 8A(6), related to the proposals over which the Federal Labor Relations Authority found we must bargain, and reinstate the procedures as to those sections that were in effect prior to November 1, 1989.

WE WILL, upon request, bargain with the American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council, the exclusive representatives of our employees, concerning appropriate arrangements for employees adversely affected by the changes we made in the firearms procedures related to all of the proposals in dispute before the Federal Service Impasses Panel when the changes were made.

___________________________
(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, Washington, D.C. Regional Office, Federal Labor Relations Authority, whose address is: 1111 - 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500.

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

*/ In response to an order from the Authority, the Respondent demonstrated that it properly served a copy of its brief on Counsel for the General Counsel. Accordingly, we have considered the Respondent's brief in this case.

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