34:1035(166)CA - - Justice, INS, El Paso District Office and AFGE Local 1210 - - 1990 FLRAdec CA - - v34 p1035

Other Files: 


[ v34 p1035 ]
34:1035(166)CA
The decision of the Authority follows:


34 FLRA No. 166

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES DEPARTMENT OF JUSTICE

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE

EL PASO DISTRICT OFFICE

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1210

(Charging Party)

6-CA-70213

DECISION AND ORDER

February 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel's untimely opposition to the exceptions has not been considered. The Charging Party (the Union) did not file any exception or an opposition to the Respondent's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) "by changing conditions of employment in unilaterally implementing some 15 memoranda to bargaining unit employees of the Investigation Service without providing the Union [the Charging Party] with notice and an opportunity to negotiate over the decisions, procedures to be observed in implementing said changes, and appropriate arrangements for adversely affected employees." General Counsel's Exhibit 1(c). Subsequently, the General Counsel "abandoned [the] contention that there was a violation of the Statute with respect to any failure to bargain about the decisions." Judge's Decision at 14 n.6. Accordingly, the Judge considered only the allegations concerning the alleged unlawful failure to negotiate over the impact and implementation of the changes.

The Judge found that: (1) the Respondent's issuance and implementation of the memoranda constituted unilateral changes in unit employees' working conditions which foreseeably had more than de minimis adverse impact on the employees; and (2) the Respondent's failure to provide adequate notice of the changes to the Union and refusal to bargain on the Union's request over the impact and implementation of the changes violated the Statute. The Judge recommended that the Respondent be ordered, upon request of the Union, to rescind the changes effected by the memoranda and to bargain about procedures to be observed in implementing any future changes in conditions of employment and appropriate arrangements for any employees adversely affected by such changes.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the reasons stated below, we conclude that the Respondent's actions with respect to memoranda identified as Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, 23, and 27 violated the Statute. We will dismiss the allegations of the complaint relating to the memoranda identified as Jt. 5 and 12.

II. Background

The American Federation of Government Employees, National Immigration and Naturalization Service Council (the Council) represents a nationwide unit of employees of the Immigration and Naturalization Service (INS). The Union is the representative of the Council for purposes of representing employees in the Respondent's El Paso District Office. The District Office includes 10 "special agents" in the Inspections Branch. James Pastor is the Respondent's Assistant Director for Investigations in the District Office.

On the morning of February 23, 1987, Pastor called a meeting of the special agents. He distributed 12 memoranda to the agents and required each agent to sign a master copy of each memorandum to acknowledge notification. The memoranda addressed various work rules and work assignments. As Pastor distributed the memoranda, he threatened to fire any agent who failed to comply with the memoranda. Judge's Decision at 3. On the morning of February 24, Pastor distributed three additional memoranda to the special agents. The relevant portions of each memorandum are set forth in the Appendix to this decision.

Lawrence Augustine is a special agent and a Union steward. On the afternoon of February 23 or 24, Augustine asked Pastor if he intended to negotiate with the Union over the matters covered by the memoranda. Pastor stated that he did not intend to negotiate with the Union because management had a right to make the changes. Judge's Decision at 14.

It is undisputed that the Union was not notified by the Respondent of its intent to implement the changes announced by Pastor in the memoranda before their distribution and implementation. It is also undisputed that the Respondent refused the Union's request to bargain over the impact and implementation of the memoranda. Id. at 16.

III. Administrative Law Judge's Decision

The Judge began his analysis by stating that the Agency:

was privileged and permitted to issue the 15 memoranda in question and to require its employees to comply with the requirements set forth in the memoranda. However, to the extent that [the] 15 memoranda constituted changes in the working conditions of the investigators and some investigators might, foreseeably, be adversely affected by the changes, [the Union] was entitled to adequate notice before the changes and an opportunity to bargain about the impact and implementation of the changes.

Judge's Decision at 15.

The Judge determined that the issuance and implementation of each of the 15 memoranda constituted unilateral changes in working conditions of the investigators which foreseeably had more than de minimis adverse impact on the investigators. The Judge noted that each memorandum involved a condition of employment and that Pastor's threatened penalty on February 23 made the impact of the changes as to the first l2 memoranda more than de minimis. The Judge also stated that "in considering this case, it must be noted that each special agent's performance is judged by the quantity and quality of cases he or she handles." Judge's Decision at 16.

Having found that the issuance and implementation of the memoranda effected changes in conditions of employment that gave rise to a duty to bargain, the Judge found that the Respondent failed to fulfill that duty by not giving the Union notice before the changes and an opportunity to bargain about the impact and implementation of the changes. Accordingly, the Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute.

The Judge noted that the Respondent "willfully" refused the Union's request to bargain and that the impact of the memoranda's changes on employees was "substantial." Judge's Decision at 18. The Judge also found that there was no showing that a status quo ante remedy--one which would return the parties to the circumstances which existed before the unfair labor practices occurred--would disrupt or impair the efficiency of the Agency. Citing Federal Correctional Institution, 8 FLRA 604 (1982), the Judge concluded that a status quo ante remedy was appropriate. He recommended that the Authority issue an order which directs that if requested to do so by the Union, the Respondent rescind the changes set forth in the 15 memoranda and bargain on the impact and implementation of any future changes in conditions of employment.

IV. The Respondent's Exceptions

The Respondent contends that most of the memoranda "did no more than remind the Special Agents concerned of a number of established policies and procedures which some of them had been lax in carrying out, and of the penalties which the employees would be subject to if they continued to engage in such conduct." Agency's Brief at 5. The Agency notes that it "does not argue that the supervisor involved acted wisely with respect to the manner in which he went about issuing these memoranda. Indeed, his approach was practically guaranteed to produce the type of vexatious litigation which has transpired." Id.

The Respondent asks the Authority "to consider whether the maintenance of the efficiency and effectiveness of the critical agency operations performed by the Special Agents would be served if management were, as the ALJ and the General Counsel would have it, barred from enforcing its existing policies and from taking disciplinary action against employees for refusing to adhere to those policies until such time as management notified the Union and completes impact and implementation bargaining." Id. at 6.

The Respondent states that the following questions are posed by its exceptions:

1. Did the ALJ err in concluding that there was substantial evidence on the record to support the General Counsel's assertion that the memoranda identified as Jt. 3, 5, 12, 14, 16, 17, 20, 21 and 27 actually reflect changes in conditions of employment?

2. If the memoranda identified in 1 above did change working conditions, were the changes effected de minimis?

3. If the memoranda identified above changed working conditions, and those changes were more than de minimis, is the ALJ's remedy to the effect that the Service will "repeal the changes set forth in all of them if requested to do so by the Charging Party" appropriate?

4. If the memoranda identified above changed working conditions, and those changes were more than de minimis, is the remedy ordered in some instances such as to require the Service to violate law, and, if so, inappropriate for that reason?

Agency's Brief at 2.

V. Discussion

A. Preliminary Matters

In the absence of exceptions, we adopt the Judge's findings, conclusions and recommended order as to memoranda Jt. 15 and 19. As to memoranda Jt. 2, 6, 10, 13, and 23, we also adopt the Judge's findings, conclusions and recommended order. The Respondent's exceptions as to those memoranda do not state any grounds in support of the exceptions and do not, therefore, satisfy section 2423.27(a)(3) of our Regulations, which requires that exceptions "state the grounds for the exceptions, and include the citation of authorities[.]"

B. The Analytical Framework

The 15 memoranda at issue addressed various work rules and work assignments of employees. Agency's Brief at 4. It is not disputed that issuance of the 15 memoranda by the Respondent constituted an exercise of its rights under section 7106(a) of the Statute. Judge's Decision at 15. However, to the extent that the exercise of its rights constituted changes in employees' conditions of employment, the Respondent was obligated under section 7106(b)(2) and (3) of the Statute to provide notice to the Union and bargain on its request over the impact and implementation of the change. Id. See Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, and Newark Air Force Station, Newark, Ohio, 21 FLRA 609, 610 (1986); Social Security Administration, 8 FLRA 517 (1982), petition for review denied mem. sub nom. American Federation of Government Employees, Local 1923 v. FLRA, 718 F.2d 1088 (4th Cir. 1983); National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). See also United States Department of Justice v. FLRA, 727 F.2d 48l, 486-88 (5th Cir. 1984); FLRA v. United States Department of the Air Force, 735 F.2d 1513 (D.C. Cir. 1984).

When management's exercise of its authority involves a change, it must first be determined whether the change concerns "conditions of employment," which are defined by section 7103(a)(14) of the Statute as "personnel policies, practices, and matters . . . affecting working conditions[.]" See Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986). See also Overseas Education Association, Inc. v. FLRA, 858 F.2d 769, 771 (D.C. Cir. 1988); American Federation of Government Employees, Local 2761 v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989). In the case before us, the Judge found, and it is not disputed, that "each memorandum involved a condition of employment[.]" Judge's Decision at 16.

Not all changes in conditions of employment give rise to a bargaining obligation. In Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) (HHS, SSA), the Authority reassessed and modified the standard used to identify changes in conditions of employment that require bargaining, stating that in order to determine whether a change in conditions of employment requires bargaining, it would carefully examine the pertinent facts and circumstances presented in each case to determine whether the change is de minimis. The Authority stated further that in examining the record, principal emphasis would be placed on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment. For examples of the Authority's application of this standard, see Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651, 655-56 (1988); U.S. Department of Labor, Washington, D.C. and U.S. Department of Labor, Employment Standards Administration, Chicago, Illinois, 30 FLRA 572, 578-81 (1987); and Department of Health and Human Services, Family Support Administration, 30 FLRA 346 (1987).

Applying the HHS, SSA standard in this case, the Judge found that the implementation of the memoranda constituted a change in the working conditions of the employees which gave rise to a bargaining obligation. The Judge concluded that the Respondent violated the Statute by not fulfilling that obligation.

Where the Authority finds that an agency has failed to bargain over a change which gives rise to a bargaining obligation, the Authority must then decide what constitutes an appropriate remedy. Congress intended the Authority to exercise broad remedial powers similar to those exercised by the National Labor Relations Board in the private sector. See Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 92-98 (1983); American Federation of Government Employees v. FLRA, 785 F.2d 333, 336-37 (D.C. Cir. 1986); United States Department of Justice v. FLRA, 727 F.2d at 486, 492. The Authority's remedial powers include the discretion to grant status quo ante remedies where appropriate.

The Authority has used the Federal Correctional Institution (FCI) framework to decide whether status quo ante remedies are appropriate. Compare, for example, Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 855 (1988) and Warner Robins Air Logistics Center (AFLC), Robins Air Force Base, Georgia, 21 FLRA 1015 (1986), in which the Authority granted status quo ante remedies, with Federal Aviation Administration, 23 FLRA 209 (1986) and U.S. Army Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA 457 (1986), in which the Authority found that status quo ante remedies were not appropriate. See also American Federation of Government Employees, SSA Council 220 v. FLRA, 840 F.2d 925, 929 (D.C. Cir. 1988), in which the court stated: "we believe that the FCI framework for reconciling competing statutory aims is reasonable[.]"

As explained in FCI, the appropriateness of a status quo ante remedy must be determined in each case on its merits. The Authority will consider, among other things:

(1) whether the union was given proper notice; (2) whether the union requested bargaining; (3) the willfulness of the agency's actions; (4) the nature and extent of the impact; and (5) to what degree a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. FCI, 8 FLRA at 606.

In the case before us, the Judge used the FCI framework in concluding that a status quo ante remedy was appropriate. Judge's Decision at 18.

C. The Questions Posed By the Respondent's Exceptions

1. Did the issuance and implementation of memoranda Jt. 3, 5, 12, 14, 16, 20, 21, and 27 change employees' conditions of employment?

Memoranda Jt. 3, 16, 21, and 27 (*)

The Judge found that the practices and procedures set forth in memoranda Jt. 3, 16, 21, and 27 involved changes in procedures which would involve expenditures of time. He found that such expenditures of time reasonably and foreseeably could affect the number of cases each investigator could handle and thereby could affect each investigator's job performance appraisal. Judge's Decision at 16. The Judge concluded, therefore, that these memoranda constituted changes in working conditions.

The Judge based his conclusions on a review of the record evidence and the testimony of the witnesses relating to the Respondent's practices preceding the issuance of the memoranda and the effects of the memoranda. For the reasons given by the Judge, we adopt his conclusions as to these memoranda.

Memorandum Jt. 5

Memorandum Jt. 5 states:

Some vehicles are still not being maintained. You have been instructed in the past that vehicles are to be kept clean and in good working condition. That responsibility is yours, not a clerk. This is a typical all around attitude many of you have displayed, not just in housekeeping (security), also in your case work and reports. Any of the aforementioned not properly maintained will constitute reasons for management to institute disciplinary actions.

The Judge found that the proper maintenance of vehicles had been discussed with agents in the past. Judge's Decision at 4. He found that the memorandum, however, applied not only to vehicles but also to an attitude about other aspects of the agents' jobs. The Judge found that the issuance of the memorandum "appears to be changing existing conditions to some new situation, but without any definiteness." Id. at 17.

The Respondent asserts that the Union's witness acknowledged the existence prior to the memorandum of a policy requiring employees to maintain their vehicles. The Respondent argues, as to the other subjects, that the memorandum required only that agents act in accordance with existing policies. The Respondent argues that the Judge found that the memorandum changed policies despite his failure to identify what the changes were. The Respondent contends that the memorandum did not change any policies, but even assuming that it did, the General Counsel failed to meet its burden of showing what the changes were.

We find that the General Counsel has not shown that the references in memorandum Jt. 5 to housekeeping, case work, and reports required employees to take any action that had not already been required of them. Further, the Union acknowledged that the requirement as to vehicle maintenance was not new. We find that the record does not establish that the Respondent's policies as to the matters covered by memorandum Jt. 5 differed as a result of the memorandum from the policies in effect prior to the memorandum. Accordingly, we find, contrary to the Judge, that the General Counsel has not shown that the issuance and implementation of memorandum Jt. 5 changed agents' conditions of employment. Therefore, we will dismiss this aspect of the complaint.

Memorandum Jt. 12

Memorandum Jt. 12 requires that no agent take an alien through or "by-pass" a border check point without first obtaining permission from the Assistant District Director.

The Judge found that before issuance of the memorandum agents could "by-pass" a check point by going directly to the Border Patrol line officer at the check point. Judge's Decision at 6-7. He found that the memorandum's requirement, therefore, was a change that required bargaining because it foreseeably could affect the agents' job performance appraisals. Id. at 16.

The Respondent contends that the memorandum's requirement simply restates a requirement that has been in existence since 1980 and that the Judge's finding is not supported by the evidence. The Respondent argues that the General Counsel's only witness "tacitly acknowledged" that the proper channel for "by-pass" approval was beyond the level of a line officer. Id. at 13.

We find that the record does not support the Judge's finding that before issuance of memorandum Jt. 12 agents could by-pass a checkpoint. Record evidence does not demonstrate that the situation addressed by this memorandum has ever been dealt with in other than the manner required by the memorandum. We find that the record does not establish that the Respondent's policy as to the matter covered by memorandum Jt. 12 differed as a result of the memorandum from the policy in effect prior to the memorandum. Accordingly, we find, contrary to the Judge, that the General Counsel has not shown that the issuance and implementation of memorandum Jt. 12 constituted a change in the agents' conditions of employment. Therefore, we will dismiss this aspect of the complaint.

Memorandum Jt. 14

The Judge found that memorandum Jt. 14 changed working conditions because it made agents subject to discipline if they conceal any fact in a case. The Judge found that before implementation of the memorandum, only the concealment of material facts was prohibited, as specified in the Respondent's Standard Schedule of Disciplinary Offenses.

The Respondent argues that the memorandum did not change conditions of employment. According to the Respondent, the memorandum "was designed to put Agents on notice that further actions by Agents violating established norms would not be tolerated." Agency's Brief at 18. We find that regardless of what the memorandum was designed to do, it in fact changed employees' conditions of employment because it amended the Respondent's Standard Schedule of Disciplinary Offenses. Before the issuance of the memorandum, the Respondent's Standard Schedule of Disciplinary Offenses for which employees may be subject to discipline listed the following: "Falsification, misstatement, exaggeration or concealment of material fact in connection with . . . any record, inves[t]igation or other proper proceeding[.]" Respondent's Exhibit No. 8.

We find that memorandum Jt. 14 changed employees' working conditions by expanding the matters listed in the Respondent's Standard Schedule of Disciplinary Offenses which are subject to possible discipline to include not just the concealment of material facts, but any concealment of facts.

Memorandum Jt. 20

The Judge noted that prior to the issuance of memorandum Jt. 20, agents could be subject to disciplinary action only for malicious damage to Government or personal property, as specified in the Respondent's Standard Schedule of Disciplinary Offenses. The Judge also found that prior to the implementation of the memorandum, damage to Government or personal property, whether malicious or not, would not automatically lead to criminal charges being brought against the individual involved. The Judge found that memorandum Jt. 20 changed working conditions because it provided that any damage to property, malicious or not, would automatically lead to criminal charges.

We agree with the Judge's conclusion that memorandum Jt. 20 changed employees' working conditions. Before the issuance of the memorandum, the Standard Schedule of Disciplinary Offenses listed the following as a matter which was subject to discipline: "Malicious damage to Government property or the property of others." Respondent's Exhibit No. 8. The range of penalties stated in the Standard Schedule included reprimands, suspensions, and removals. Id.

Memorandum Jt. 20 stated in part: "Any damage to government or personal property will lead to criminal charges." The memorandum changed employees' working conditions in two respects. First, it expanded the matters listed in the Respondent's Standard Schedule of Disciplinary Offenses which are subject to possible discipline to include any damage to property, whether malicious or not. Second, it changed employees' working conditions by specifying that criminal charges would be filed against employees who caused such damage.

2. Were the changes in conditions of employment resulting from the issuance and implementation of the memoranda de minimis?

As noted above, the Judge determined that the issuance and implementation of each of the 15 memoranda constituted unilateral changes in the agents' working conditions. Further, the Judge, applying the standard set forth in HHS, SSA, 24 FLRA 403, concluded that the changes foreseeably had more than de minimis adverse impact on the investigators. The Judge concluded that the Respondent was, therefore, obligated to bargain over the impact and implementation of the changes. Judge's Decision at 16-18.

With the exception of memoranda Jt. 5 and 12, we sustain the Judge's determinations that the changes effected by the implementation of the memoranda foreseeably had more than de minimis adverse impact on the investigators. We agree with the Judge's determinations as to these memoranda for the reasons stated in the Judge's decision. The Judge properly applied the standard set forth in HHS, SSA, and we find, in agreement with the Judge, that the Respondent's refusal to fulfill its bargaining obligations with regard to these memoranda violated the Statute.

3. Is a status quo ante remedy appropriate?

The Judge recommended that the Authority issue a status quo ante remedy--that is, one which directs that if requested to do so by the Union, the Respondent rescind the changes set forth in the 15 memoranda and bargain on the impact and implementation of any future changes in conditions of employment.

The Respondent argues that the Judge's status quo ante remedy would impair the efficiency and effectiveness of critical Agency operations. It asserts that such an order would interfere with the work of its special agents and would bar the Respondent from taking disciplinary action against agents for refusing to adhere to agency policies.

The Respondent argues that a status quo ante order would have the following consequences: (1) as to memorandum Jt. 3, it would interfere with the proper detention of aliens; (2) as to memorandum Jt. 14, it would authorize employees to conceal facts relevant to investigative cases; (3) as to memorandum Jt. 16, it would make more difficult the maintenance of confidentiality; (4) as to memorandum Jt. 20, it would interfere with the Agency's ability to bring criminal charges; and (5) as to memorandum Jt. 21, it would prevent management from knowing the locations and/or destinations of its agents while working in the field.

We find these arguments to be unpersuasive. The assumption underlying these arguments is that if the Respondent is directed to rescind a memorandum, the Respondent will be left with no enforceable policy as to the subject matter of the memorandum. On the contrary, the Judge's recommended order is based on his finding that the memoranda changed existing policies and procedures. Rescission of the memoranda, if requested by the Union, means simply that management will return to the policies and procedures that existed before February 23, 1987. The Respondent is free to enforce those policies and procedures by taking whatever action, including disciplinary action, was proper under those policies and procedures. The Respondent may also change those policies and procedures, as long as its actions are consistent with the bargaining obligations imposed by the Statute.

Applying the factors enumerated in FCI, the Judge found that a status quo ante remedy was warranted in the circumstances of this case. The Judge found nothing in the record, and (apart from memorandum Jt. 27) we find nothing in the exceptions, to show that a status quo ante remedy would disrupt or impair the efficiency or effectiveness of the Agency. We find that the Judge's recommended status quo ante order, except as to memorandum Jt. 27, effectuates the purposes and policies of the Statute.

Memorandum Jt. 20

Memorandum Jt. 20 provided that any damage to Government or personal property would lead to criminal charges. The Respondent argues that the rescission of memorandum Jt. 20 would violate law because the Respondent would be prevented from bringing criminal charges in certain circumstances until the parties completed impact and implementation bargaining. Agency's Brief at 25-26. We disagree.

The Judge's order requires management to return to the practice that existed prior to the issuance of memorandum Jt. 20. Under that practice: (1) employees were subject to discipline for malicious damage; and (2) such damage might, but did not automatically, lead to criminal charges. We find, in the absence of any evidence to the contrary, that under that practice the Respondent was able to bring criminal charges against employees. The status quo ante remedy would allow the Respondent, during the pendency of impact and implementation bargaining, to bring criminal charges against employees on the same basis that it was able to do so prior to the issuance of the memorandum. Accordingly, we adopt the Judge's recommended order as it applies to memorandum Jt. 20.

Memorandum Jt. 27

Memorandum Jt. 27 provides that, beginning on February 25, 1987, Government vehicles to which agents were assigned would be kept at the Federal Building. The record shows that before the issuance of this memorandum, Assistant Director Pastor allowed agents to park their privately owned vehicles at the Agency's El Paso Border Patrol facility, where they would pick up an assigned Government vehicle and proceed to the Federal Building. The agents would return their assigned vehicle to the Border Patrol facility at the end of their day's work and pick up their own vehicles.

The Respondent asserts that at the time this prior practice was approved, the agents were performing work from the time they left the Border Patrol facility until they arrived at the Federal Building. According to the Respondent, it had determined that this practice was consistent with the requirements of 31 U.S.C. § 1344(a)(2) for permitting the use of Government vehicles. Exceptions at 30. The Respondent states that it ended this practice by issuing memorandum Jt. 27 because the agents were no longer performing work between stations. It argues that it took this action because it was obliged to do so in order to comply with 31 U.S.C. § 1344. Exceptions at 31. The Respondent argues that the Authority should not, therefore, order it to return to an unlawful practice. Exceptions at 31-32.

We find that a status quo ante remedy as to memorandum Jt. 27 is not appropriate because it would require the Respondent to return to a practice that may be unlawful. We will, however, order the Respondent, upon request of the Union, to bargain over the impact and implementation of the change effected by memorandum Jt. 27.

D. The Recommended Order

The Judge found, and we agree, that the Respondent violated the Statute by failing to give the Union adequate notice of the changes in question, as well as by failing to bargain. Judge's Decision at 18. We will modify the Judge's recommended order to include provisions to remedy the Respondent's failure to give adequate notice. We will also modify the recommended order to reflect our findings as to memorandum Jt. 27, and our dismissal of the complaint as to memoranda Jt. 5 and 12.

The Judge found that three agents were each admonished for failure to comply with the changed requirements of memoranda Jt. 10, 16, and 23. Judge's Decision at 6, 9-10, and 12-13, respectively. We have found that the Respondent violated the Statute by changing those requirements without first providing the Union with notice and an opportunity to request bargaining. Therefore, we will modify the Judge's recommended order to direct the Respondent to rescind any admonishments or other disciplinary actions taken against employees for failure to comply with the changed requirements of memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, 23, and 27.

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, shall:

1. Cease and desist from:

(a) Failing and refusing to give adequate notice to, and upon request, bargain with the American Federation of Government Employees, AFL-CIO, Local 1210, the exclusive representative of its employees, concerning the procedures to be observed in implementing the changes in conditions of employment set forth in memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, 23, and 27, issued on February 23 and 24, 1987, or any other changes in conditions of employment, and concerning the appropriate arrangements for any employees adversely affected by 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 in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Rescind the changes set forth in memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, and 23, issued on February 23 and 24, 1987, and revert to the practices which were in effect with respect to the matters covered by each memorandum prior to February 23, 1987.

(b) Rescind any admonishments or other disciplinary actions taken against employees for failure to comply with the changed requirements of memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, 23, and 27.

(c) Upon request, bargain with the American Federation of Government Employees, AFL-CIO, Local 1210, the exclusive representative of its employees, about the appropriate arrangements for any employees adversely affected by the changes caused by implementing memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, 23, and 27, issued on February 23 and 24, 1987.

(d) Notify the American Federation of Government Employees, AFL-CIO, Local 1210, the exclusive representative of its employees, of any intention to change its policies with regard to the conditions of employment encompassed in memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, and 23, or any other changes in conditions of employment and, upon request, bargain about the procedures to be observed in implementing any such changes, and about the appropriate arrangements for any employees adversely affected by any such changes.

(e) Post at its El Paso District Office facilities copies of the attached Notice, including an Appendix, on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the District Director 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.

(f) 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.

The allegations of the complaint as to memoranda Jt. 5 and 12, which were found not to have violated the Statute, are dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to give adequate notice to, and upon request, bargain with the American Federation of Government Employees, AFL-CIO, Local 1210, the exclusive representative of our employees, concerning the procedures to be observed in implementing the changes in conditions of employment set forth in memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, 23, and 27, issued on February 23 and 24, 1987 and described in the attached Appendix, or any other changes in conditions of employment, and concerning the appropriate arrangements for any employees adversely affected by such changes.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL rescind the changes set forth in memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, and 23, issued on February 23 and 24, 1987, and revert to the practices which were in effect with respect to the matters covered by each memorandum prior to February 23, 1987.

WE WILL rescind any admonishments or other disciplinary actions taken against employees for failure to comply with the changed requirements of memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, 23, and 27.

WE WILL, upon request of the American Federation of Government Employees, AFL-CIO, Local 1210, the exclusive representative of our employees, bargain about the appropriate arrangements for any employees adversely affected by the changes caused by implementing memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, 23, and 27, issued on February 23 and 24, 1987.

______________________
(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: 525 Griffin Street, Suite 926, Dallas, TX 75202, and whose telephone number is: (214) 767-4996.

APPENDIX

The relevant portions of each memorandum are as follows:

Memorandum Jt. 2

All agents will report to the District Office Investigations section each morning at 0800 am for a daily meeting effective Monday, February 23, 1987. Any reason for failure to attend meetings must be in writing to your supervisor.

Memorandum Jt. 3

The attached lockup sheet will be completed on each alien placed in the holding cells at the Federal Building. Failure on your part to complete this form will lead to disciplinary action.

Memorandum Jt. 5

Some vehicles are still not being maintained. You have been instructed in the past that vehicles are to be kept clean and in good working condition. That responsibility is yours, not a clerk. This is a typical all around attitude many of you have displayed, not just in housekeeping (security), also in your case work and reports. Any of the aforementioned not properly maintained will constitute reasons for management to institute disciplinary actions.

Memorandum Jt. 6

On a daily basis at our morning meeting, you are to present completed forms G-22.12.1, G-205 with gas receipts, vehicle signout log. Failure to comply with these instructions will lead to disciplinary action.

Memorandum Jt. 10

Defaming talk, rumors and gossip about this Service unit or specific persons in this office will no longer be tol[e]rated. Calling outside this District to advise other Districts or Regional offices what actions management is taking will not be tol[e]rated. Taking surveys to ascertain whether management is correct will not be tol[e]rated. Those involved with this type of activity will have disciplinary action taken against them.

Memorandum Jt. 12

Under no circumstances will any agent contact a line officer in an attempt to by-pass any alien, C.I. (confidential informant) or agent working under cover through a Border Patrol Check Point or through the Port of Entry. You are to make such request through the Assistant District Director for Investigation who will review the request and make the arrangements through proper channels. Failure on your part to comply with these outstanding instructions will lead to disciplinary action. [Emphasis in original.]

Memorandum Jt. 13

All information, requests, payment to informants, etc. will require supervisory review and initials prior to leaving this office. Management has instructed that without the proper review nothing will be processed through their offices. Failure on your part to comply with these outstanding instructions will lead to disciplinary action.

Memorandum Jt. 14

Any concealing of facts in a case in this office from Management, Supervision or the U.S. Attorney are grounds for disciplinary action.

Memorandum Jt. 15

You are required to work with everyone in this working unit. Breaking off into small clicks {sic} will not be tol[e]rated. If necessary you will be ordered to work with fellow officers. The fact that you feel that you can not trust a specific agent is no reason to avoid that agent. If you feel strongly that you cannot work with an Agent you must submit a memorandum specifying the nature of any action which might have caused you not to desire to work with that Agent. [Emphasis in original.]

Memorandum Jt. 16

Under no circumstances will you bring an informant into this Service office. You are to arrange to meet the informant at a neutral location outside the Federal Building. If your informant is discovered being involved in any criminal activity you are to immediately contact supervision by memorandum specifying exactly what type of activities the informant is involved in. [Emphasis in original.]

Memorandum Jt. 17

I am amending my memorandum dated Feb. 23, 1987 titled "INFORMANTS" (first sentence) to read, The only time an informant will be brought into the Federal Building will be when you first receive approval from the Assistant District Director for Investigations. You must explain in writing the circumstances which requires such a need and explain how you will guarantee confidentiality.

Memorandum Jt. 19

Prior to visiting with the District Director or the Deputy District Director you are required to have an appointment. You may make an appointment by requesting your immediate supervisor or the ADDI to make one for you. You must specify the reason for such appointment. If you desire an appointment and wish to by-pass this procedure, you must send a memorandum to the District Director or the Deputy District Director specifying the reason for the appointment. In an emergency situation you may call directly to the front office, requesting the District Director's secretary to schedule an appointment. You must again specify the reason for your appointment.

Failure on your part to comply with these instructions will lead to disciplinary action.

Memorandum Jt. 20

Pranks or games such as the one conducted recently on one of our Special Agents by pouring foul material on the telephone and desk will not be tol[e]rated. Any damage to government or personal property will lead to criminal charges.

It is inconceivable that I must write this type of memorandum about this type of unprofessionalism which normally we would associate with grade school children instead of GS-11 or GS-12 "SPECIAL AGENTS."

Memorandum Jt. 21

Each time you leave this office, you are required to complete the signout log showing the case, destination, departure time and the approximate return time. This log will be kept on my secretary's desk (Jenny's desk). Failure to comply with these instructions will lead to disciplinary action.

Memorandum Jt. 23