21:0359(47)CA - INS and AFGE, Local 1917 -- 1986 FLRAdec CA



[ v21 p359 ]
21:0359(47)CA
The decision of the Authority follows:


 21 FLRA No. 47
 
 IMMIGRATION AND NATURALIZATION 
 SERVICE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1917, AFL-CIO
 Charging Party
 
                                            Case No. 2-CA-40021
 
                              DECISION AND ORDER
 
                          I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached Administrative Law Judge's Decision filed by the General
 Counsel.  The Respondent filed an opposition to the General Counsel's
 exceptions.  The complaint in this case alleged a violation of section
 7116(a)(1) and (5) of the Federal Service Labor-Management Relations
 Statute (the Statute) when the Respondent unilaterally ceased issuing
 "blackjacks" to detention officers at its Brooklyn New York facility and
 thereafter refused to negotiate over the impact and implementation of
 such change with the Charging Party.
 
                          II.  Background
 
    The facts are fully set forth in the Judge's Decision.  Briefly
 stated, the record indicates that there was a practice of issuing
 blackjacks to detention officers at the Respondent's Brooklyn facility.
 The blackjacks were either issued or authorized by the Chief Detention
 Officer.  At a certain point in time, however, the newly assigned Chief
 Detention Officer denied a request by a newly assigned detention officer
 that the latter be issued a blackjack.  Repeated requests were similarly
 denied as was a request to negotiate made by the Charging Party after
 the change in practice had been implemented.  There is no dispute that
 the Respondent changed its practice of issuing blackjacks to detention
 officers.
 
                          III.  Judge's Decision
 
    The Judge concluded that the Respondent's failure to bargain over the
 impact and implementation of its decision to discontinue the past
 practice of issuing blackjacks to detention officers at the Brooklyn,
 New York, facility violated section 7116(a)(1) and (5) of the Statute.
 To remedy such conduct, the Judge ordered the Respondent to bargain,
 upon request, to the extent consistent with law and regulation,
 concerning the impact and implementation of the change.  However, the
 Judge rejected the General Counsel's request for a status quo ante
 remedy on the basis that continued use of blackjacks by detention
 officers might be illegal under New York state law.  The Judge did not
 pass upon the lawfulness of such a practice because, in his view, the
 unfair labor practice proceeding was not the proper forum in which to
 resolve that question.
 
                       IV.  Positions of the Parties
 
    The only exceptions to the Judge's findings and conclusions were made
 by the General Counsel and related to the Judge's recommended remedy.
 The General Counsel argued that the Judge was obligated to determine
 whether the practice of issuing blackjacks is legal;  that, based upon
 the record, the practice is legal;  and, further, that issuance of a
 status quo ante remedy is warranted under Federal Correctional
 Institution, 8 FLRA 604 (1982).
 
    In its opposition to the General Counsel's exceptions with regard to
 the status quo ante remedy issue, the Respondent essentially argued the
 propriety of issuing blackjacks to detention officers.  The Respondent
 also asserted that subsequent to the unfair labor practice hearing in
 this case, the parties at the national level executed a collective
 bargaining agreement which, it argued, gives to management the sole
 discretion to determine which employees are authorized to carry various
 weapons.
 
                               V.  Analysis
 
    It is undisputed that the Respondent had a practice of issuing
 blackjacks to detention officers at the Brooklyn, New York facility, and
 that the Respondent unilaterally discontinued this practice.  We find,
 in agreement with the Judge, that this change had more than de minimis
 impact on unit employees' conditions of employment.  Therefore, the
 Respondent was obligated to notify the Charging Party and afford it an
 opportunity to bargain over the procedures to be observed in
 implementing such change and appropriate arrangements for unit employees
 adversely affected by its decision to change the practice of issuing
 blackjacks.  This the Respondent failed to do.  As noted above, the
 Respondent did not except to the Judge's conclusion that the failure to
 provide the Charging Party with such opportunity was a violation of the
 Statute.
 
                                VI.  Remedy
 
    As noted, the Judge declined to issue a status quo ante remedy, a
 conclusion to which the General Counsel excepted.  In our view, a status
 quo ante remedy is warranted in this case.  First, in Federal
 Correctional Institution, the Authority held that the appropriateness of
 a status quo ante remedy is to be determined on a case-by-case basis,
 carefully balancing the nature and circumstances of the violation
 against the degree of disruption in government operations which would be
 caused by such a remedy.  The Judge stated generally that there were
 factors both for and against a status quo ante remedy, but did not
 identify or weigh such factors because of the basis for his ultimate
 disposition of the issue.  As to the question of the legality of the
 unilaterally discontinued practice of issuing blackjacks to detention
 officers, the Respondent essentially conceded, in its opposition to the
 exceptions, that the New York state law upon which the Judge based his
 conclusion was not applicable to the employees in this case.  /1/
 Accordingly, it must now be determined whether a status quo ante remedy
 is warranted under Federal Correctional Institution.  In this regard,
 the Authority notes the Judge's uncontradicted finding that there was no
 notice given to the Charging Party concerning the discontinuance of the
 practice of issuing blackjacks to detention officers, that there was no
 bargaining opportunity afforded concerning this change in practice, and
 that the Respondent refused the Charging Party's request for
 negotiations after implementation of the change.  With respect to the
 impact experienced by the employees, the Authority notes the
 uncontradicted findings of the Judge with respect to the use of the
 blackjacks and the fact that other detention officers at the Brooklyn
 facility retained possession of their previuosly issued blackjacks.
 Finally, the Authority finds nothing in the record which would indicate
 that the Respondent's operations would be disrupted by reinstating the
 issuance of blackjacks consistent with preexisting practice, along with
 the affirmative order that the Respondent negotiate consistent with the
 requirements of the Statute.  /2/
 
                             VII.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision and the entire record in this case, and adopts the
 Judge's findings and conclusions, and his recommended Order as modified
 to include the status quo ante remedy.  Therefore, we find that the
 Respondent has violated section 7116(a)(1) and (5) of the Statute and
 shall order that the Respondent restore the past practice of issuing
 blackjacks to the detention officers involved in this case.  /3/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Immigration and Naturalization Service shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally discontinuing the practice of issuing blackjacks to
 detention officers at its Brooklyn, New York, facility without affording
 the American Federation of Government Employees, Local 1917, AFL-CIO,
 notice and an opportunity to bargain over the procedures to be observed
 in implementing such change and appropriate arrangements for employees
 adversely affected thereby.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing 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 Statute:
 
    (a) Restore the practice of issuing blackjacks to detention officers
 of the Brooklyn facility.
 
    (b) Notify the American Federation of Government Employees, Local
 1917, AFL-CIO, concerning any proposed discontinuance of the practice of
 issuing blackjacks to detention officers at the Brooklyn, New York
 facility, and, upon request, negotiate with such representative
 concerning the procedures to be observed in implementing such change and
 appropriate arrangements for employees adversely affected thereby.
 
    (c) Post at the Immigration and Naturalization Service facility which
 currently houses detention officers formerly located at the Brooklyn
 facility, 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 head of the Immigration and Naturalization
 Service, or a 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 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, Region II, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with it.
 
    Issued, Washington, D.C., April 21, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ 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 unilaterally discontinue the practice of issuing
 blackjacks to detention officers at the Brooklyn, New York, facility
 without affording the American Federation of Government Employees, Local
 1917, AFL-CIO, notice and an opportunity to bargain over the procedures
 to be observed in implementing such change and appropriate arrangements
 for employees adversely affected thereby.
 
    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 restore the practice of issuing blackjacks to detention
 officers of the Brooklyn facility.
 
    WE WILL notify the American Federation of Government Employees, Local
 1917, AFL-CIO, concerning any proposed discontinuance of the practice of
 issuing blackjacks to detention officers at the Brooklyn, New York
 facility, and, upon request, negotiate with such representative
 concerning the procedures to be observed in implementing such change and
 appropriate arrangements for employees adversely affected thereby.
                                       (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 II, Federal Labor Relations Authority, whose address
 is:  26 Federal Plaza, Room 2237, New York, New York 10278, and whose
 telephone number is:  (212) 264-4934.
 
 
 
 
         -------------- ALJ$ Decision Follows ----------------
 
    Case No.: 2-CA-40021
 
    IMMIGRATION AND NATURALIZATION SERVICE
    Respondent
 
 
                                    and
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1917,
 AFL-CIO
    Charging Party
 
    Steven Muir
    For the Respondent
 
    Alan W. Stadtmauer, Esq.
    For the General Counsel
 
    James Lane
    Joseph Girlando
    For the Charging Party
 
    Before:  WILLIAM NAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Complaint and Notice of Hearing issued on December 28,
 1983, by the Acting Regional Director for the Federal Labor Relations
 Authority, Region II, a hearing was held before the undersigned on March
 6, 1984 at New York, NY.
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. 7101 et seq. (herein called the Statute).  It is based
 upon a charge filed on October 18, 1983 by American Federation of
 Government Employees, Local 1917, AFL-CIO (herein called the Union)
 against Immigration and Naturalization Service (herein called
 Respondent).
 
    The Complaint alleged, in substance, that on or about the July 15,
 1983 Respondent unilaterally discontinued the issuance of blackjacks to
 its Detention Officers assigned to its Detention Center in Brooklyn, NY;
  that on or about that date and at all times thereafter Respondent has
 failed and refused to negotiate the impact and implementation of the
 change in conditions of employment for unit employees -- all in
 violation of Section 7116(a)(1) and (5) of the Statute.
 
    Respondent's Answer, dated January 20, 1984, denied the aforesaid
 allegations of the Complaint as well as the commission of any unfair
 labor practices.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter briefs were filed with the
 undersigned which have been duly considered.  /4/
 
    Subsequent to the hearing General Counsel filed with the undersigned
 a Motion to Strike portions of Respondent's brief, contending they
 referred to facts not contained on the record.  Respondent filed a
 response thereto as well as a motion to reopen the record and admit
 specific documents into the record.  Opposition to the motion to reopen
 the record was thereafter filed by Respondent.  The motions involve the
 following:
 
          1) On page 1, paragraph 2 of its brief, Respondent refers to
       various classifications within its agency.  General Counsel moves
       to strike such evidence as not being in the record.  Respondent
       states that 8 CFR 103.1(q) lists the types of classifications
       within the agency, and therefore it is a matter of public record.
 
          2(a) On page 5, paragraph 3 of its brief Respondent asserts
       that:
 
          "In January of 1984, six months after this incident, the
       National Immigration and Naturalization Service Council, parent of
       Local 1917 (the Charging Party) formally requested negotiations
       upon the impact and implementation of an Agency-wide proposal to
       discontinue the practice of issuing blackjacks."
 
          (b) On page 6, paragraph 2 of its brief Respondent mentions
       that the National Council of the Union formally requested national
       negotiations 6 months later, in January, 1984.
 
          (c) On page 8, paragraph 1 of its brief Respondent states that
       the impact and implementation of this change in policy is
       currently the subject of ongoing negotiations between the National
       Council of the union in the Respondent's national headquarters.
       /5/
 
          3) On page 6, paragraph 4 of its brief Respondent refers to a
       settlement agreement in the case of Man Chung et al. v. William
       French Smith, et al., Civil Action No. CV-79-0795 (EDNY) which
       allegedly impacted upon a decision to cease issuing blackjacks.
       General Counsel asserts it is not part of the record and moves to
       strike all references thereto.  Respondent contends it is a public
       record and moves to introduce same herein which is amended to its
       brief as Attachment IV.
 
          4) On page 7, last sentence of its brief Respondent refers to
       changes in the Immigration Detention Officer's Handbook dated July
       30, 1983 which proscribes the use of blackjacks.  General Counsel
       asserts the Handbook was not introduced in evidence and no
       evidence appears as to any such change in policy.  It moves to
       strike all references to said Handbook.  Respondent maintains the
       Handbook was not put in evidence since it postdates the charge.
       It moves to introduce the same herein which is annexed to a brief
       as Attachment V.
 
    In respect to the foregoing motions on the part of both General
 Counsel and Respondent, the undersigned rules as follows:
 
    1) General Counsel's motion to strike from Respondent's brief all
 references to the job clarification in the agency is denied.  A reading
 of 8 CFR 103.1(q) discloses that such data is contained therein and
 hence the classifications are a matter of public record.  Accordingly,
 the motion to strike such reference is denied.
 
    2) General Counsel's motion to strike from Respondent's brief all
 references to the request for negotiations by the National Immigration
 and Naturalization Council (parent of Local 1917), as well as references
 to ongoing negotiations between the said parent and Respondent, is
 granted.  There is no evidence in the record to support such reference
 in Respondent's brief as set forth on pages 5, 6 and 8 thereof.
 Respondent's argument that it did not introduce such evidence at the
 hearing because the correspondence postdated the charge is not
 persuasive.  Nothing in the Statute or the Rules and Regulations
 precludes the introduction in evidence of relevant material which is
 dated or effective after a charge is filed.  Since it appears, moreover,
 that such evidence existed and was available at the time of the hearing,
 the cross motion by Respondent to reopen the record and introduce such
 evidence -- Attachment I, II and III is denied.
 
    3) Respondent's motion to introduce into evidence Attachment IV, the
 Stipulation of Agreement in the case of Man Chung et al. v. William
 French Smith et al. Civil Action, No. CV-79-0795 (EDNY) is denied.
 While official notice might be taken of the proceeding in the District
 Court action, the stipulated facts therein are not relevant to the
 instant matter.  Settlement of a cause of action involving persons not
 part of the instant proceeding, and containing a commitment between
 Respondent and such persons, do not relate to the obligation of the
 agency to fulfill its obligation under the Federal Service
 Labor-Management Relations Statute.
 
    4) General Counsel's motion to strike from Respondent's brief
 references to the Immigration Detention Officer's Handbook, as set forth
 on page 7 thereof, is granted.  The fact that the document postdates the
 filing of the charge is not legal justification for failing to introduce
 same into evidence during the hearing.  Inasmuch as the Handbook was in
 existence and available at the time of the hearing, the motion by
 Respondent to reopen the record and introduce it into evidence as
 Attachment V is denied.
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein the American Federation of
 Government Employees (National Council of Immigration and Naturalization
 Service Locals) has been, and still is, the exclusive representative for
 a nationwide unit of all Respondent's employees, excluding those
 employees assigned to Border Patrol Sectors and those excluded from
 coverage by the Civil Service Reform Act.
 
    2.  At all times material herein Respondent has recognized American
 Federation of Government Employees, Local 1917, AFL-CIO (the Union) as
 the agent of the exclusive representative for the purpose of bargaining
 on behalf of its employees in the Respondent's New York District.
 
    3.  Respondent is responsible for the control of aliens coming to
 reside in the United States from foreign countries.  It maintains,
 within the New York District, a Service Processing Center at Brooklyn,
 NY.  This center is also known as the Detention Center.  Aliens who are
 illegally present in the United States are detained thereat until
 accorded a hearing or other due process.
 
    4.  Employed at the Detention Center are about 80 Immigration
 Detention Officers, of whom about 30 are female.  These Officers are
 responsible for the control, upkeep, health and maintenance of the
 aliens detained at the Center.  They also perform escort duties when
 aliens are moved to and from consulates, hospitals, prisons and
 airports.  In connection with the performance of their duties, the
 Detention Officers are issued various types of weapons.  While guns may
 be issued if an assignment is dangerous, the Officers are usually
 provided with restraining items as leg weights, handcuffs, riot batons,
 and billy chains.  Prior to July, 1983 the Detention Officers at the
 Brooklyn Detention Center were also issued blackjacks.  This item is a
 piece of lead about 1/2 inch long wrapped in leather, and with a leather
 strap about 6-8 inches long.  The blackjack, which is wrapped around a
 thumb and rests in one's hand, is used to poke someone or strike the
 legs or knees of an alien causing trouble.  /6/ Record facts show
 training in the use of blackjacks has varied from a minute or so to two
 hours.
 
    5.  Detention Officer Frank Marino testified, and I find that in 1973
 he was a supply clerk at the district office in New York City;  that he
 gave out equipment to the Detention Officers which included blackjacks.
 The Chief Detention Officer authorized the issuance of blackjacks to
 those Officers and this equipment was given out at the New York supply
 room.  This continued until 1980 when the blackjacks were issued from
 the Brooklyn location.  The issuance of blackjacks to the Detention
 Officers, with the approval of the Chief Detention Officer, continued
 until about May, 1983.
 
    6.  In May, 1983 Mae Saccamano was assigned to the Detention Center
 as a Detention Officer.  She was given a manual as well as handcuffs and
 keys.  Some other Officer mentioned that she should have a blackjack
 also.  Saccamano approached Chief Detention Officer Roger Mayo who
 assumed that role on April 17, 1983.  She asked Mayo for the blackjack
 and the Chief Officer advised Saccamano that its use was illegal in New
 York State.  Hence he refused to furnish her with a blackjack.  In June
 /7/ Saccamano went to Glynco, Georgia for training in firearms.  Upon
 her return in July she again asked Mayo for a blackjack but he refused
 to issue one to her.  Although Saccamano repeated the request again, it
 was not issued.
 
    7.  Between May-July several Detention Officers informed James A.
 Lane, shop steward, that blackjacks had not been issued to them.  He
 suggested they speak to Mayo in this regard.  Since their efforts were
 fruitless, Lane went to see Mayo in July and asked why the blackjacks
 were not given to the Detention Officers.  Mayo told the steward that
 the employees are not supposed to have them -- it is so provided in the
 Handbook, and Mayo doesn't like them.  Lane told the Chief Officer this
 was a change in practice, and the union official suggested they discuss
 the matter.  Upon Mayo's refusal to do so, Lane mentioned he would have
 to file an unfair labor practice charge.  Mayo stated that Lane should
 do as he must;  that the Chief Officer would do what's required of him.
 
    8.  Record testimony reflects that Mayo made the decision, shortly
 after assuming the position of Chief, not to issue blackjacks to
 Detention Officers.  He based his decision on the fact that such item
 was illegal in New York and no training /8/ was provided for its use.
 Mayo was aware of the past practice at the center to issue the
 blackjacks.  The Chief testified he made the decision without consulting
 the Union or negotiating the matter in any respect with the bargaining
 agent.  He further testified he was not aware of any obligation to
 notify the Union before discontinuing the issuance of blackjacks at the
 Center.
 
    9(a).  Article 10, Section 10(12) of the Criminal Procedure Law of
 the State of New York, provides as follows:
 
          "Deadly weapon" means any loaded weapon from which a shot,
       readily capable of producing death or other serious physical
       injury, may be discharged, or a switch blade, knife, gravity
       knife, dagger, billy, blackjacks, or metal knuckles.
       (underscoring supplied).
 
    (b) Article 2, Section 2.10 of the Criminal Procedure Law of the
 State of New York, entitled "Peace Officers" sets forth a list of those
 persons who shall have the powers of, and be deemed, peace officers.
 /9/
 
    (c) Article 2, Section 2.15 of the Criminal Procedure Law of the
 Statute of New York, entitled "Federal law enforcement officers;
 powers," lists the federal law enforcement officers who shall have the
 powers set forth in subdivision 1 (with certain exceptions), 2, 3, and 8
 of Article 2, Section 2.20 of this Criminal Procedure Law.  While no
 reference is made specifically to Immigration Detention Officers, the
 said list in Section 2.15 does name:  "Immigration and Naturalization
 Service Special agents, investigators and patrol officers."
 
    (d) Article 2, Section 220 of the Criminal Procedure Law, entitled
 "Powers of peace officers," provides that such officers shall have
 certain powers.  Subdivisions 1, 2, 3, and 8 grant them the following:
 
          1.  The power to make warrantless arrests . . . .
 
          2.  The power to use physical force and deadly physical force
       in making an arrest or preventing an escape pursuant to section
       35.30 of the penal law.
 
          3.  The power to carry out warrantless searches whenever such
       searches are constitutionally permissible and acting pursuant to
       their special duties.
 
                       . . .
 
 
          8.  The power to possess and take custody of firearms not owned
       by the peace officer, for the purpose of disposing, guarding, or
       any other lawful purpose, consistent with his duties as a peace
       officer.  (underscoring supplied)
 
                                Conclusions
 
    Respondent does not dispute the fact that a past practice existed at
 the Brooklyn, NY Processing Center whereby blackjacks were issued to the
 Immigration Officers.  Further it does not deny that the issuance of
 blackjacks was in connection with the primary duties of these officers
 in escorting and controlling illegal aliens who are detained in this
 country.  It is contended, however, that the practice was discontinued
 on April 17, 1983 by the new Chief Detention Officer based on his
 conclusion that it violated the Criminal Code of New York State, and
 there was no training for use of the blackjacks.  Respondent also
 maintains that there was no wilful intent on its part when the practice
 was terminated, nor did Chief Mayo harbor any animus toward the Union.
 Finally, it is contended that any impact occasioned by the change is
 minimal.
 
    It is quite clear that, despite the right of an agency to make
 certain decisions affecting employees, an obligation remains to notify
 the bargaining agent and afford it an opportunity to bargain re the
 impact and implementation thereof.  Even though an agency may under,
 Section 7106(b)(1) of the Statute, institute a change involving a
 reserved management right, it still must bargain concerning its impact
 and implementation.  Social Security Administration, 16 FLRA No. 17;
 Internal Revenue Service, (District, Region and National Office and
 Service Center Unit), 10 FLRA 326.
 
    Respondent's chief contentions in support of its discontinuing the
 practice of issuing blackjacks to Detention Officers, rests on the
 alleged illegality of their use under the NY Criminal Code.  This
 argument is rejected.  The Authority has concluded that while management
 may be required to correct an unlawful practice once discovered, it
 still must give notice of the change and, upon request, bargain as to
 the impact and implementation, where possible of such change.
 Department of the Interior, U.S. Geological Survey, Conservation
 Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA No. 65
 (footnote 9).  The parties disagree as to whether the issuance of
 blackjacks does flout the NY State Criminal Procedure Law.  Assuming
 arguendo that the penal law in New York does outlaw the use of such an
 item by the Detention Officers herein, it was still incumbent upon
 Respondent to notify the Union of its intention to discontinue the use
 of blackjacks and negotiate the impact and implementation of such
 discontinuance.  It is conceded by Respondent that it failed to do
 either.
 
    While it is argued that the impact of the change or discontinuance of
 the blackjack is de minimis, record facts persuade me to the contrary.
 Some of the illegal aliens handled by the Detention Officers have
 criminal backgrounds, and these individuals are enacted to and from the
 airport by the officers.  In 1980 several officers were grabbed by some
 Cuban aliens, and it was necessary for other officers to use their
 blackjacks to restore order.  Moreover, some of the escort services
 rendered by the Detention Officers require escorting aliens to and from
 prisons.  It thus appears that the duties performed by the Officers are
 fraught with some danger and may well be hazardous in nature.  Further,
 since the aliens outnumber the Officers in many instances, the carrying
 of a blackjack as a defensive weapon could be very necessary at times.
 Respondent asserts that other weapons, as night sticks or riot batons,
 are available as weapons.  However, such items may not be issued in
 advance for particular assignments, and yet the need for some articles,
 as a blackjack, may well arise in certain circumstances.  It seems clear
 to the undersigned that the change in the past practice of issuing
 blackjacks to Detention Officers impacted upon these employees.  Where a
 change does result in an impact which is more than de minimis, as in the
 instant case, there is a statutory duty to negotiate.  See U.S.
 Government Printing Office, 13 FLRA No. 39.
 
    Having failed and refused to bargain re the impact and implementation
 of the change in the past practice of issuing blackjacks to its
 Detention Officers, Respondent has violated Section 7116(a)(1) and (5)
 of the Statute.
 
                                  Remedy
 
    General Counsel seeks a status quo ante remedy whereby Respondent be
 required to issue blackjacks to Detention Officers who desire them.  In
 citing Federal Correctional Institution, 8 FLRA 604, to support this
 remedy, General Counsel stresses the failure by Respondent to give
 notice of its action and its refusal to fulfill an obligation to
 negotiate, as well as the fact that such a remedy will not impair the
 effectiveness of Respondent's operation.  Contrariwise, Respondent
 opposes a status quo ante remedy, emphasizing its lack of wilfulness and
 the fact that returning the blackjacks would require Respondent to
 commit an unlawful act.
 
    Upon careful consideration of this particular issue, I am constrained
 not to recommend the requested remedy.  Note is taken that several
 factors listed in the Federal Correctional Institution, case, supra,
 favor the position of either party in respect thereto.  However, I
 consider it determinative in disposing of this issue that the continued
 use of blackjacks by the Detention Officers might be illegal.  A tenable
 argument may be advanced that the Detention Officers herein do not fall
 within the term "Immigration and Naturalization Service Special agents,
 investigators and patrol officers" as set forth in Article 2, Section
 2.15 of the N.Y. Criminal Procedure Law.  In such instance, it is
 arguable, these officers would not have the powers granted to peace
 officers under Article 2, Section 220 of said Criminal Procedure Law.
 /10/ A status quo ante remedy should not place the employer in a
 position where it may be subject to civil liability or criminal
 prosecution based on an existing law, despite controversy as to its
 application.  In my opinion, it would not accord with the purposes and
 policies of the Statute to grant said remedy, and I conclude it is
 unwarranted herein.
 
    Accordingly, and in view of the foregoing conclusions that Respondent
 violated Section 7116(a)(1) and (5) of the Statute, it is recommended
 that the Federal Labor Relations Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Statute, the
 Authority hereby orders that the Immigration and Naturalization Service
 shall:
 
    1.  Cease and desist from:
 
          (a) Instituting changes in established conditions of employment
       at its New York District without first notifying the American
       Federation of Government Employees, Local 1917, AFL-CIO, the
       designated representative of its employees of the New York
       District, and affording such representative the opportunity to
       bargain, to the extent consonant with law and regulation,
       concerning the impact and/or implementation of such changes.
 
          (b) 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:
 
          (a) Upon request by American Federation of Government
       Employees, Local 1917, AFL-CIO, the designated representative of
       its employees of the New York District, bargain, to the extent
       consonant with law and regulation, concerning the impact and/or
       implementation of a change in the past practice of providing
       blackjacks to its Immigration Detention Officers.
 
          (b) Post at its facilities copies of the attached Notice on
       forms to be furnished by the Federal Labor Relations Authority.
       Upon receipt of the forms they shall be signed by the Chief
       Detention Officer, New York District, and they shall be posted and
       maintained for 60 consecutive days thereafter, in conspicuous
       places, including all places where notices to employees are
       customarily posted.  The Chief Detention Officer shall take
       reasonable steps to insure that the notices are not altered,
       defaced, or covered by any other material.
 
          (c) Pursuant to Section 2423.30 of the Rules and Regulations
       notify the Regional Director, Region II, in writing, within 30
       days from the date of this order as to what steps have been taken
       to comply herewith.
                                       /s/ WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  December 24, 1984
    Washington, DC
 
 
                        -------- FOOTNOTES$ ---------
 
    (1) The Respondent has not demonstrated any other basis on which to
 conclude that issuance of a status quo ante remedy under the Statute
 would be unlawful.
 
    (2) As to the Respondent's arguments concerning the propriety of
 issuing blackjacks to detention officers, the Authority of course makes
 no judgment on that issue but addresses only the question of whether
 reinstatement of the past practice as a part of the remedy will disrupt
 or impair efficiency of the Respondent's operations.  As to the
 Respondent's assertion concerning the substance of a subsequently
 negotiated agreement arguably giving management the sole discretion to
 determine which employees are authorized to carry various weapons, the
 Authority finds it unnecessary to determine what, if any, effect this
 agreement may have concerning management's right to make such
 determinations.  Rather, the issues before the Authority in this
 proceeding are whether the Respondent failed to fulfill its bargaining
 obligation under the Statute, and the appropriate remedy for such
 unlawful conduct.
 
    (3) The Authority notes that it appears the Respondent's Brooklyn,
 New York facility has relocated to a facility in Manhattan.  The
 Authority's order is of course intended to apply to the detention
 officers involved herein regardless of their change in physical
 location.
 
    (4) In its brief Respondent asserts the General Counsel's case is
 procedurely defective.  It is contended that General Counsel altered his
 argument, in his opening statement, to conform to the original
 complaint.  Further Respondent maintains this was done at the prompting
 of the undersigned.  The undersigned rejects this contention and finds
 it lacking in substance.  The Complaint herein was predicated on a
 change in a condition of employment which occurred without negotiating
 said changes with the Union.  The undersigned suggested that the
 Complaint, in conformance with the opening remarks re a practice
 existing for five years, might well have so pleaded.  Nevertheless, the
 Complaint is sufficient as a pleading to encompass the existence of a
 past practice (condition of employment) and its subsequent
 discontinuance.
 
    (5) With respect to the references in the brief concerning request
 for negotiation, as well as ongoing negotiation, General Counsel asserts
 there is no evidence or testimony in the record in support thereof.  It
 moves to strike such reference on page 5, 6, and 8 of the brief.  While
 conceding the record does not include evidence re negotiations between
 the parent of Local 1917 and Respondent, the latter contends the
 correspondence postdated the charge and thus was not introduced into
 evidence.  Respondent moves to now introduce such material as follows:
 A letter dated November 23, 1983 from Respondent to the president of the
 Union's Council, marked Attachment I;  the Proposed Policy of Respondent
 re service employees carrying weapons to which the Union was invited to
 respond, marked Attachment II;  the Response of the Union to such
 proposal, marked Attachment III.
 
    (6) In 1980 Detention Officers were escorting some Cuban aliens who
 were alighting from a bus.  When the aliens grabbed several of the
 Officers, other Detention Officers were required to use their blackjacks
 to control the situation.
 
    (7) Unless otherwise specified all dates hereinafter mentioned occur
 in 1983.
 
    (8) Training was provided in the use of night sticks, although it
 appears from the record that no training was given in respect to the use
 of riot batons.
 
    (9) While no specific reference is made to Immigration Officers in
 said section, General Counsel concedes that, based on 8 USCA 1357 which
 sets forth the powers and duties of these officers and the weapons made
 available to them, the Immigration Officers may be called "peace
 officers."
 
    (10) It does not appear that an extra-agency decision or
 determination has been made as to whether the use of blackjacks by the
 Respondent's Detention Officers is legal under the NY Criminal Procedure
 Law.  I do not believe the present proceeding is the proper forum for
 such determination.  Hence, I do not pass upon whether such use is legal
 or illegal under said state law.
 
 
                                 APPENDIX
 
                          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
 STATUTE We hereby notify our employees that:
 
    WE WILL NOT institute changes in established conditions of employment
 at our New York District without first notifying the American Federation
 of Government Employees, Local 1917, AFL-CIO, the designated
 representative of its employees of the New York District, and affording
 such representative the opportunity to bargain, to the extent consonant
 with law and regulation, concerning the impact and/or implementation of
 such changes.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL upon request by American Federation of Government Employees,
 Local 1917, AFL-CIO, the designated representative of our employees of
 the New York District, bargain, to the extent consonant with law and
 regulation, concerning the impact and/or implementation of a change in
 the past practice of providing blackjacks to its Immigration Detention
 Officers.
                                       (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 of the Federal Labor Relations Authority, Region II,
 whose address is:  26 Federal Plaza, Room 24-102, New Y