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
 reme