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  • U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and American Federation of Government Employees, National Border Patrol Council, AFL-CIO

U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and American Federation of Government Employees, National Border Patrol Council, AFL-CIO

[ v55 p93 ]

55 FLRA No. 20

U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION SERVICE
WASHINGTON, D.C.
(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER PATROL COUNCIL, AFL-CIO
(Charging Party/Union)

DA-CA-30370

_____

DECISION AND ORDER

January 12, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This unfair labor practice case is before the Authority on Respondent's exceptions to the attached decision of the Administrative Law Judge. The General Counsel and the Union each filed an opposition to the Respondent's exceptions.

      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 it actions in this case. In particular, the complaint alleges that the Respondent implemented a side handle baton training program prior to completing negotiations with the Union over the impact and implementation of the program and at a time when the Union's request for assistance from the Federal Service Impasses Panel (the Panel) in negotiating ground rules was pending.

      On consideration of the Judge's decision and the entire record, we hold, for the following reasons, that the unfair labor practice charge was timely filed, and the implementation of the side handle baton training program had more than a de minimis impact on unit employees' conditions of employment. We remand this case to the Chief Administrative Law Judge for assignment to another judge to determine: (1) whether implementation of the side handle baton training program was consistent with the necessary functioning of the Agency; (2) if implementation of the program was necessary, whether the Respondent was relieved of its bargaining obligation because the matters over which the Union sought bargaining were covered by the parties' collective bargaining agreement; and (3) if necessary, whether the Respondent's implementation of the program violated section 7116(a)(6) of the Statute.

II.     Background

A.     Statement of Facts

      The facts, which are fully set forth in the Judge's decision, are briefly summarized here.

      The Respondent informed the Union of its plan to adopt a "side handle baton" as a standard intermediate use-of-force weapon for Border Patrol Agents and to provide all agents with training in its use. Prior to this time, a "straight baton" was optional equipment for the agents. [n2] 

      The Union requested that implementation of the side handle baton program be held in abeyance pending completion of negotiations. After an exchange of correspondence, the Union submitted ground rules proposals. On September 10, 1992, the Respondent responded by letter that it was "willing to meet and discuss" the Union's proposals but that, "due to demands of public safety and officer safet[y]," it had decided on immediate implementation. Judge's Decision at 5-6. As relevant here, the letter stated that the Respondent intended to implement the side handle baton policy effective September 15, 1992.

      On September 14, 1992, the Union sent letters to: (1) the Respondent, stating that the Union rejected the Respondent's offer to limit bargaining to post-implementation matters and that the Union had contacted the Federal Mediation and Conciliation Service (FMCS) and would seek the assistance of the Panel; (2) the FMCS, requesting its assistance; and (3) the Panel, requesting that it "consider a negotiation impasse." Id. at 6-7. On October 9, 1992, the Respondent sent to the field a telegram authorizing the initiation of training on the side handle baton program.

      By letter dated October 28, 1992, the Panel responded to the Union's request for assistance, direct- [ v55 p94 ] ing the parties to negotiate over all remaining disputed issues for 30 days, and to seek the assistance of FMCS, as necessary. Pursuant to the Panel's letter, the parties met and negotiated, with assistance from a mediator from FMCS, and, on November 13, 1992, the mediator certified that the parties were at impasse. Subsequently, the Union submitted proposals concerning remaining areas of disagreement, and proposed a Memorandum of Understanding on agreed-upon matters.

      By letter dated December 8, 1992, the Respondent notified the Union that it considered implementation to be consistent with its necessary functioning and that it was proceeding with implementation "in accordance with [its] previous notice." Id. at 8. The Respondent stated that "[m]andatory training [was] scheduled to proceed after January 5, 1993," and that "[a] basic intermediate force weapon . . . has been determined to be essential." Id.

      The unfair labor practice (ULP) charge culminating in the complaint now before the Authority was filed on January 4, 1993, alleging that on December 14, 1992, the Charging Party received notice that the Respondent "intended to proceed with the implementation of the policy on January 5, 1993[.]" Id. at 9. On January 6, 1993, the Respondent began training unit employees in the side handle baton.

      The Panel "relinquish[ed]" jurisdiction by letter dated February 4, 1993, "because it [was] unclear that an impasse exist[ed] within the meaning of 5 C.F.R. § 2470.2(e) of the regulations." G.C. Exh. 20. The Panel stated that before a determination could be made as to whether the parties had reached an impasse, it was necessary to resolve questions the Respondent had raised concerning its obligation to bargain on the Union's proposals. The Panel also stated that the Respondent had begun to implement the side handle baton training program, and that the Union had filed a ULP charge alleging that the implementation violated the Statute. According to the Panel, "[t]hese actions ma[de] it appear that some of the implementation issues [were] . . . beyond the reach of the Panel and that many of the issues . . . [would] be either moot (as to current employees subject to the program) or in a significantly different posture by the time the Panel [could] reasonably be expected to resolve them . . . ." Id.

B.     Judge's Decision

      The Judge held that the Respondent violated section 7116(a)(1), (5) and (6) of the Statute. As described in seriatim below, the Judge rejected Respondent's defenses that: (1) the charge was invalid because it was anticipatory; (2) the Union did not properly invoke the services of the Panel; (3) implementation of the program would not have more than a de minimis effect on bargaining unit employees; (4) the matters over which the Union sought to bargain were covered by the parties' bargaining agreement; and (5) implementation of the program while the dispute was pending before the Panel was consistent with the necessary functioning of the Agency.

      First, the Judge determined that the ULP charge, filed by the Union on January 4, 1993, was not anticipatory because the ULP occurred either on October 9, 1992, when the Respondent sent a telegram authorizing officials in the field to initiate training, or on December 8, 1992, when the Respondent sent the Union a letter stating that the Respondent was "proceeding with implementation" while the matter was pending before the Panel. Judge's Decision at 17. In addition, the Judge denied the Respondent's objection to the General Counsel's motion at the hearing to amend the complaint to allege that the side handle baton training program was implemented "[o]n or after October 9, 1992[.]" Id. at 18. The Judge determined that the unfair labor practice alleged was not changed in any manner by the amendment.

      Second, the Judge determined that the Panel had jurisdiction to resolve the impasse, without regard to whether the parties had negotiated prior to the Union's request for Panel assistance, because the existence of negotiations is not a condition precedent to the existence of an impasse. The Judge also concluded that, even if the Panel was without jurisdiction at the time of the Union's request, the Panel had jurisdiction on and after November 13, 1992, when an impasse was certified by the mediator.

      Third, the Judge found that implementation of the new program had more than a de minimis impact on unit employees. Specifically, the Judge found that the training program established the following new conditions of employment: (1) a certification requirement of 12 hours of training for initial certification, annual recertification with 8 hours of training, and passing an examination for certification or recertification; (2) a requirement for training on the side handle baton; (3) a provision that failure to attain certification would result in withdrawal of authorization to carry the baton and require retraining; (4) a provision that all uses of force with a side handle baton be documented and all injuries be reported.

      Fourth, in the Judge's view, the parties' agreement did not address, and therefore, did not "cover" the impact and/or implementation of side handle baton [ v55 p95 ] training program. [n3]  The Judge noted that the parties' agreement specifically provides for notice of any change of existing conditions of employment and the opportunity to bargain on the impact of any such proposed changes.

      Finally, the Judge concluded that there was no evidence that implementation of the side handle baton training program was necessary to the functioning of the Agency. The Judge found that the Respondent's statement that implementation of the side handle baton program was necessary to the functioning of the Agency "plainly was a naked semantic ploy resorted to in an effort to support by self-serving innuendo its announced intent to implement the program while the matter was pending before the [Panel]." Id. at 31.

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent argues that the ULP charge is void either because it was anticipatory or, alternatively, because it was filed too late. According to the Respondent, on the date alleged in the charge to constitute improper implementation (December 8, 1992), the Respondent did not implement but, instead, merely announced an intent to implement at a later date (January 6, 1993), which is subsequent to the date of the charge. The Respondent argues that the General Counsel's amendment of the complaint at the hearing, to state that the side handle baton training program was implemented on or after October 9, 1992, did not cure the defect in the charge. The Respondent asserts, relying on Leach Corporation, 312 NLRB 990 (1993), that it cannot be found to have implemented the training program on December 8, 1992, because mere notice by a party of intent to engage in an action constituting an unfair labor practice is not a violation of the Statute. The Respondent also asserts that, if the October 9, 1992, telegram provided sufficient basis for the change, then earlier correspondence also constituted a sufficient basis and, as a result, the charge was filed too late.

      The Respondent also argues that implementation of the side handle baton program did not have more than a de minimis impact on unit employees' conditions of employment. The Respondent asserts that the Judge inconsistently found both that implementation "was not much of a change," and that the change was more than de minimis. Exceptions at 39. The Respondent contends that the impact of the side handle baton program is irrelevant in this case, which, according to the Respondent, concerns only the impact of the training for the side handle baton program.

      According to the Respondent, implementation of the side handle baton program was consistent with the necessary functioning of the Agency because prompt implementation would prevent injuries and deaths and significantly increase the number of illegal aliens apprehended by agents. The Respondent maintains that the Judge improperly refused to permit the Respondent to place evidence in the record to support this argument. The Respondent also maintains that it was not required to negotiate over the impact and implementation of the side handle baton training program because the matters over which the Union sought to bargain are "covered by" the parties' bargaining agreement, and that the Judge's conclusion that the matter in this case was properly pending before the Panel at the time the Respondent implemented the training program was in error.

B.     General Counsel's Opposition

      The General Counsel argues that the charge was not anticipatory, as the evidence is sufficient to support the Judge's finding that the change in conditions of employment was implemented on October 9, 1992, when the Respondent granted authority to the field to begin training. The General Counsel argues that the Judge properly determined that the Respondent engaged in "subterfuge" in asserting that implementation was necessary for the functioning of the Agency. The General Counsel notes that the Respondent did not assert that implementation was necessary to the functioning of the Agency until the dispute was pending before the Panel.

      The General Counsel argues that the matters about which the Union sought to bargain are not covered by the parties' agreement and that the Respondent never asserted the contrary to the Union. In addition, according to the General Counsel, the Respondent should be estopped from claiming that the Panel lacked jurisdiction because the Union made timely demands to bargain [ v55 p96 ] and the Respondent "eschew[ed] its bargaining obligations by a `naked semantic ploy[.]'" General Counsel's Opposition at 14.

C.     Union's Opposition

      The Union argues that even if the straight and side handle batons were identical, the implementation of the side handle baton training program, which included mandatory training and certification, had more than a de minimis impact on unit employees' conditions of employment. The Union further asserts that the Judge correctly concluded that implementation of the program was not consistent with the necessary functioning of the Agency. The Union argues that the parties were at impasse when the Union requested assistance from the Panel.

IV.     Analysis and Conclusions

      For the following reasons, we affirm the Judge's findings that the ULP charge was timely filed and that the implementation of the side handle baton program had more than a de minimis impact on unit employees' conditions of employment. We remand the complaint for determination of the remaining issues.

A.     The Unfair Labor Practice Charge Was Timely Filed

      The Judge made alternative findings of fact that the Respondent implemented the side handle baton program either on October 9, 1992 or on December 8, 1992. [n4]  The evidence supports the finding that the Respondent implemented the program on December 8, 1992.

      In its notice dated September 10, 1992, the Respondent stated:

Effective September 15, 1992 we will commence the implementation of our side-handle baton policy. First, we will solicit volunteers to act as training instructors. Second, we will begin training our supervisors and managers in the techniques and use of the side-handle baton. Third, we will begin training agents that volunteer for the training on January 1, 1993. Fourth, beginning January 6, 1993 we will make training of all agents mandatory in the use of the side-handle baton.

General Counsel Exh. 12; Judge's Decision at 17. This notice clearly shows the Respondent's intent to implement the side handle baton policy in stages, with mandatory training of all agents serving as the last stage in the process.

      The Respondent continued with its announced plan for staged implementation when, on December 8, it stated that it was "proceeding with implementation in accordance with [the] previous notice[,]" and that "[m]andatory training [wa]s scheduled to proceed after January 5, 1993." Judge's Decision at 8. With this notice, the Respondent made clear its intent to begin what it had previously described as the fourth stage in the implementation process.

      Contrary to the Respondent's argument, nothing in Leach Corporation supports a conclusion that the December 8 letter did not constitute implementation for purposes of filing an unfair labor practice charge. Leach Corporation holds that the time period for filing a charge begins to run "when a party has clear and unequivocal notice of a violation of the [National Labor Relations] Act." 312 NLRB at 991. The Respondent's December 8 letter provided clear and unequivocal notice of unilateral implementation of the side handle baton training program. Thus, it provided a sufficient basis for the filing of the Union's unfair labor practice charge.

      Based on the foregoing, we find that the Respondent implemented the side handle baton program on December 8, 1992. [n5] 

           B.The Respondent's Implementation of the Side Handle Baton Training Program Had More Than a De Minimis Impact on Unit Employees' Conditions of Employment

      Under section 7116(a)(1) and (5) of the Statute, where the substance of a change is outside the duty to bargain, an agency must give the exclusive representative an opportunity to bargain over the impact and implementation of the change, provided that the change has more than a de minimis effect on unit employees' conditions of employment. American Federation of Government Employees, Local 940 and U.S. Depart- [ v55 p97 ] ment of Veterans Affairs, Philadelphia, Pennsylvania, 52 FLRA 1429, 1436 (1997). In determining whether the effect of a change in conditions of employment is more than de minimis, the Authority looks to "the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment on bargaining unit employees." U.S. Equal Employment Opportunity Commission, Washington, D.C. and National Council of EEOC Locals #216, American Federation of Government Employees, AFL-CIO, 48 FLRA 306, 310 (1993).

      The record supports the Judge's findings that the side handle baton training program established new conditions of employment. As examples, the Respondent does not dispute that only the side handle baton program had mandatory certification and refresher training requirements. In addition, failure to satisfactorily complete either the initial certification or the recertification course, which required agents to perform more than 30 different maneuvers, would lead to withdrawing authorization to carry the side handle baton. Further, failure to properly use the side handle baton could result in disciplinary action. We conclude that these new conditions of employment had a foreseeable impact on unit employees that is more than de minimis.

      The Respondent's argument that the Judge's factual findings are inconsistent is unconvincing. The disputed statement by the Judge -- that implementation was "not that much of a change" -- was made in the context of determining whether implementation of the change was consistent with the necessary functioning of the Agency. As the hearing transcript shows, the Respondent attempted to introduce evidence that implementation of the side handle baton training program was necessary to the functioning of the Agency. The Judge stated that he did not believe that the straight baton could not effectively perform the same functions that the Respondent claimed made implementation of the side handle baton program necessary. Thus, it is clear that the disputed statement concerned the impact of the change on the functions of the Respondent, not the impact on unit employees.

      The Respondent's argument that only the effects of implementing the training program -- not the entire side handle program -- may be considered also is unconvincing. The line Respondent would have us draw does not help its case. As the Judge found, "the training program . . . established many new conditions of employment . . . ." Judge's Decision at 24. As set forth above, the record supports the Judge's finding.

      Based on the foregoing, we conclude that the implementation of the straight handle baton program had more than a de minimis effect on bargaining unit employees' conditions of employment.

C.     A remand is necessary to determine whether implementation of the side handle baton training program was consistent with the necessary functioning of the Agency

      In a previous decision involving related parties, the Authority held that implementation of changes was consistent with the necessary function of the Respondent where the implementation was "necessary for [INS] to perform its mission[.]" Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Laredo, Texas, 23 FLRA 90, 93 (1986). Specifically, the Authority determined that changes in shift and rotation schedules were necessary to "permit the Laredo Station to effectively police the border and to perform its duties most effectively." Id. at 93.

      The Judge found that there was "no evidence whatever, either received or offered, that implementation of the side-handle baton training program was necessary to the functioning of Respondent." Judge's Decision at 30. The Respondent excepts to the Judge's finding, arguing in part that the Judge improperly excluded evidence that would have established that implementation of the program was consistent with the necessary functioning of the Agency.

      The determination of matters to be admitted into evidence is within the discretion of the Judge under the Authority's Regulations. [n6]  Department of Veterans Affairs Medical Center, Denver, Colorado and Veterans Canteen Service, Denver, Colorado, 52 FLRA 16, 22 (1996) (Veterans Affairs Medical Center) (citing Portsmouth Naval Shipyard, Portsmouth, New Hampshire and Portsmouth Federal Employees Metal Trades Council, 49 FLRA 1522, 1531 (1994) (Portsmout [ v55 p98 ] Naval Shipyard)). However, a judge's exclusion of evidence may constitute abuse of discretion where the judge has mistakenly excluded relevant and material evidence. In this regard, courts have held that judges abused their discretion in refusing to admit relevant evidence, but did not abuse their discretion in refusing to admit evidence not shown to be relevant. E.g., Chudson v. Environmental Protection Agency, 17 F.3d 380, 384-85 (Fed. Cir. 1994); Johnson v. Burnley, 887 F 2d 471, 480 (4th Cir. 1989).

      In this case, the Judge refused to permit the Respondent to introduce evidence that implementation of the side handle baton training program was consistent with the necessary functioning of the Agency. For example, the Judge rejected as immaterial an exhibit offered by the Respondent to support its argument that a straight baton would result in more injuries to employees than a side handle baton. Transcript at 76-77. Respondent's counsel then requested to make a "substantial offer of proof" that in a variety of situations, use a straight baton would result in a greater number of agents, bystanders and suspects being injured than would use of the side handle baton. Id. at 77-79. The Judge rejected the offer of proof, as well as an exhibit encompassing interviews with experts concerning intermediate use-of-force weapons wherein the experts concluded that the side handle baton is a superior weapon. Id. at 79, 80.

      The Judge also rejected other testimony concerning the differences between the straight and side handle batons. Specifically, a border patrol agent who was a master instructor in use of the side handle baton testified that "[t]here is a dramatic difference in the versatility of the tool and the use of the tool." Id. at 85. The agent/instructor testified that, while the straight baton can only be used for striking people, the side handle baton can be used to block blows that are aimed at the agent. Id. The Judge interrupted this testimony, stating that if the witness was stating that "a baton can't be used to block a blow," then the witness was "out of [his] mind." Id. Respondent's counsel then attempted again to introduce evidence that only a side handle baton can be used for blocking, and the Judge rejected the evidence as "baloney." Id. at 86. The Judge stated that although the side handle baton "may be a better tool," the idea that a straight baton could not be used to block a blow is "so much malarkey." Id.

      The Judge excluded evidence that clearly is relevant to the Respondent's argument that implementation of the side handle baton training program was consistent with the necessary functioning of the agency. Subsequently, the Judge determined that there was "no evidence" supporting the Respondent's argument. Judge's Decision at 30. This Judge's finding -- that there was "no evidence" supporting a conclusion that implementation of the side handle baton training program was consistent with the necessary functioning of the agency -- is plainly erroneous. [n7]  In these circumstances, we conclude that the Judge's refusal to permit introduction of this evidence constituted an abuse of discretion.

      Although the existing record demonstrates that there is some support for a conclusion that implementation of the side handle baton training program was consistent with the necessary functioning of the Agency, we are not able to determine whether the Agency has met its burden on the record before us. [n8]  Accordingly, we remand the complaint, as to this issue, to the Chief Administrative Law Judge [n9]  for the purpose of reopening the hearing to permit the Respondent to introduce evidence on this point. [n10]  Based on that evidence, and the complete record, the presiding judge must determine whether implementation was consistent with the necessary functioning of the Agency at the time of implementation. [ v55 p98 ]

D.     A remand is required to determine, if necessary, whether the training program was covered by the parties' collective bargaining agreement

      If implementation of the side handle program was not consistent with the necessary functioning of the Agency, then Respondent's defense that the matters over which the Union sought bargaining are covered by the parties' agreement must be resolved.

      The Judge in this case found that, at all times relevant herein, the parties' collective bargaining agreement was "still in effect[,]" and the parties do not dispute this finding. Judge's Decision at 3. However, this is the same agreement that has been found by this Judge, and the Authority, to have expired in 1979. See United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA 768, 773 (1996), aff'd, National Border Patrol Council, Local 2366 v. FLRA, 114 F.3d 1214 (D.C. Cir. 1997) (Border Patrol v. FLRA).

      We are unaware of any decisions in which the Authority determined that an agency may be relieved of an obligation to bargain over a matter on the ground that the matter is covered by an expired agreement. Moreover, there are significant questions whether the terms of an expired agreement can have such effect under the Statute. Cf. Border Patrol v. FLRA, 114 F.3d at 1218-19 (agency's refusal to bargain mid-term did not breach duty to bargain where union did not request bargaining during period of existing agreement).

      Because the Judge found that the agreement was still in effect, he did not consider whether or how the "covered by" analysis applied. Because the parties do not dispute the Judge's finding, they likewise do not raise or address this issue. In these circumstances, as the complaint must be remanded in any event, we remand this question for briefing by the parties and consideration by the Judge, if necessary.

E.     A remand is required to determine, if necessary, whether the matter in this case was properly pending before the Panel at the time the Respondent implemented the side handle baton program

      In United States Immigration and Naturalization Service, Washington, D.C., 55 FLRA No. 19 (1999) (INS) (issued this day), the Authority modified the doctrine concerning when an agency violates section 7116(a)(6) by implementing a change in conditions of employment (thereby refusing to maintain the status quo). For reasons fully explained in INS, we concluded that we will, henceforth, find that an agency's refusal to maintain the status quo violates section 7116(a)(6) only in situations where the agency fails to cooperate with an impasse procedure or decision.

      In these circumstances, we remand the allegation that the Respondent violated section 7116(a)(6) for further proceedings. On remand, the parties should address both: (1) whether the modified doctrine set forth in INS for resolving complaints alleging that a refusal to maintain the status quo violates section 7116(a)(6) should be applied retroactively in this case; and (2) if the modified doctrine should be applied, then whether the Respondent violated section 7116(a)(6).

V.     Order

      The complaint is remanded to the Chief Administrative Law Judge for further proceedings consistent with this decision.

Opinion of Member Wasserman, concurring in part and dissenting in part.

      I agree with all but section IV.E of the foregoing decision. For the reasons stated in my dissent in United States Immigration and Naturalization Service, Washington, D.C., 55 FLRA No. 19 (1999), I believe the Authority is mistaken in its adoption of a new framework for evaluating unfair labor practice claims under section 7116(a)(6). In particular, I believe that our previously existing precedent correctly required the maintenance of the status quo while a request for Panel assistance is pending. See Department of Veterans Affairs, Veterans Administration Medical Canter, Decatur, Georgia, 46 FLRA 339, 346 (1992); Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940 (1990); Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466, 469 (1985).

      I concur with the remand of this case because the Agency was deprived of a meaningful opportunity to present evidence regarding its defense to the section 7116(a)(6) claim --namely, that implementation was necessary for the functioning of the agency. I would not require the application of a modified doctrine, but would apply our previous and longstanding precedent to the (a)(6) allegation. Accordingly, I dissent on those grounds.

File 1: Authority's Decision in 55 FLRA No. 20
File 2: ALJ's Decision

Footnote # 1 for 55 FLRA No. 20 - Authority's Decision

   Member Wasserman's opinion, concurring in part and dissenting in part, is set forth at the end of this decision.

Footnote # 2 for 55 FLRA No. 20 - Authority's Decision

   The Judge found that the primary difference between the two batons is that "the side handle gives the ability to generate more force and affords a spinning technique." Judge's Decision at 4 n.3.

Footnote # 3 for 55 FLRA No. 20 - Authority's Decision

   The Judge cited to Article 15 of the parties' agreement, which provides, in relevant part:

A.     The Agency and the Union agree that training and development of employees . . . is a matter of primary importance . . . .
B.     [E]ach employee is responsible for applying reasonable effort, time, and initiative in increasing his potential value . . . through self-development and training . . . .
C.     The nomination of employees to participate in training . . . shall be based on Agency needs but will be free of personal favoritism . . . .
D.      The Agency agrees to make available to employees, training opportunities . . .

.Judge's Decision at 25.

Footnote # 4 for 55 FLRA No. 20 - Authority's Decision

   According to the Respondent, "alternative findings of fact . . . do not only constitute reversible error, but are highly improper." Exceptions at 35. However, judges routinely make alternative findings of fact. See, e.g., Chinese American Planning Council, Inc. and CPC Independent Workers Union, 307 NLRB 410 (1992) (Board adopted ALJ's recommended Order containing alternative findings of fact); see also, e.g., Del A. v. Roemer, 777 F. Supp. 1297, 1311 (E.D. La. 1991) (judge made alternative findings of fact).

Footnote # 5 for 55 FLRA No. 20 - Authority's Decision

   Consistent with this finding, it is unnecessary to address the Respondent's arguments regarding anticipatory charges. We also do not address the Respondent's argument regarding the Judge's alternative finding that October 9, 1992, was the implementation date.

Footnote # 6 for 55 FLRA No. 20 - Authority's Decision

   5 C.F.R. § 2423.19 (1997), which was in effect at the time of the hearing provided, in relevant part:

It shall be the duty of the Administrative Law Judge to inquire fully into the facts as they relate to the matter before the Judge. Subject to the rules and regulations of the Authority and the General Counsel, a [presiding judge] may:
. . . .
(g) Rule upon offers of proof and receive relevant evidence and stipulation of facts with respect to any issue . . . .

The analogous current regulations are contained at 5 U.S.C. 2423.31(a)(b)(1998).

Footnote # 7 for 55 FLRA No. 20 - Authority's Decision

   Among other things, testimony of a border patrol agent who also was a master instructor in use of the side handle baton constitutes such support. Specifically, he testified that due to the hiring of more female agents, who have less upper body strength than male agents, the agents were "losing a lot of encounters in the field, having a lot of Agents injured who weren't able to deal with the situation with their empty hands, alone." Transcript at 74. The agent/instructor also testified that, although both straight and side handle batons are intermediate use of force weapons, the straight baton can only be used for striking people whereas the side handle baton can be used to block blows aimed at the agents. Id. at 85.

Footnote # 8 for 55 FLRA No. 20 - Authority's Decision

   In this regard, evidence relied on by the Judge supports a conclusion that implementation was not consistent with the necessary functioning of the Agency. This evidence includes the fact that the Respondent initially determined that use of the side handle baton would be optional, and the Respondent's failure to assert that the change was necessary until the dispute was pending before the Panel. This conclusion is also supported by testimony of the Union President that both the straight and the side handle batons are capable of performing almost all the same functions.

Footnote # 9 for 55 FLRA No. 20 - Authority's Decision

   We remand to the Chief Administrative Law Judge for assignment to a different judge because the intemperate nature of the Judge's comments, quoted above, raises significant questions whether the Judge has predetermined this issue.

Footnote # 10 for 55 FLRA No. 20 - Authority's Decision

   Of course, on remand, the presiding judge has full authority to determine whether proffered evidence is otherwise admissible.