21:0359(47)CA - INS and AFGE, Local 1917 -- 1986 FLRAdec CA
[ v21 p359 ]
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.