Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas and American Federation of Government Employees, Local 3828, AFL-CIO

[ v55 p848 ]

55 FLRA No. 147

FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
BASTROP, TEXAS
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3828, AFL-CIO
(Charging Party)

DA-CA-60254
DA-CA-60549
DA-CA-60550
DA-CA-60551

_____

DECISION AND ORDER

September 27, 1999

_____

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

I.     Statement of the Case

      This consolidated unfair labor practice case is before the Authority on exceptions to the attached Decision and Order of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions and cross-exceptions to the Judge's Order. The Respondent filed an opposition to the General Counsel's cross-exceptions.

      The consolidated complaint alleges that the Respondent: (1) violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with section 7114(a)(2)(A) of the Statute by holding formal discussions with employees without affording the Union notice and an opportunity to be represented; (2) violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing changes in conditions of employment without providing the Union with an opportunity to negotiate; and (3) violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the substance and impact and implementation of the changes during post-implementation negotiations. The Judge found that the Respondent violated the Statute as alleged.

      Upon consideration of the Judge's Decision and the entire record, we deny the Respondent's Exceptions and adopt the Judge's Order to the extent consistent with this Decision.

II.     Preliminary Matter

      As explained below, we find that the General Counsel's opposition and cross-exceptions were not timely filed. Therefore, they will not be considered. [n2] 

      The Respondent's exceptions were served on the General Counsel by mail on June 30, 1997. The General Counsel's opposition and cross-exceptions were filed with the Authority on July 17, 1997. The Authority subsequently ordered the General Counsel to show cause why its submissions were not untimely filed. In response to the Authority's Order, the General Counsel argued that the Authority's Regulations "do not expressly prohibit" calculating the timeliness of documents by inserting the five days permitted for mail time at the beginning, rather than at the end, of the period allowed for responding to exceptions. See General Counsel's Response to Order to Show Cause.

      Under section 2423.28(b) of the Authority's Regulations in effect at the time the parties' submissions were filed in this case, the General Counsel had 10 days from the date of service -- i.e., until Thursday, July 10, 1997 -- to file a response to the Agency's exceptions. [n3]  Since the exceptions were served by mail, 5 days are added to the time limit under section 2429.22 of the Authority's Regulations. See United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 25 FLRA 102 (1986) (explaining the Authority's procedure for computing time periods). Section 2429.22 does not expressly state whether the 5 days are added at the beginning of the filing period or at the end of that period. Consistent with the wording of that section, under which "5 days shall be added to the prescribed period[,]" and our long-standing practice, the 5 days are added at the end of the filing period. See, e.g., Social Security Administration, Malden District [ v55 p849 ] Office, Malden, Massachusetts, 54 FLRA 531, 531 n.1 (1998); U.S. Department of Veterans Affairs Medical Center, Hot Springs, South Dakota and American Federation of Government Employees, Local 1539, 48 FLRA 804, 805 (1993).

      Consequently, the General Counsel's opposition and cross-exceptions were due by Tuesday, July 15, 1997. Since they were not filed with the Authority until July 17, the General Counsel's opposition and cross-exceptions were not timely filed.

III.     Background and Judge's Decision

A.     Background

      The American Federation of Government Employees, Local 3828 ("Union") represents bargaining unit employees who are assigned as foremen of inmate work crews at the Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas ("Respondent"). The foremen are responsible for the supervision of the inmates in their crews, maintaining security, and paperwork. The size of a foreman's work crew averages 15 to 25 inmates. The four consolidated complaints in this case concern a dispute over the Respondent's change in "lay-in" and "accountability" practices for the supervision of inmates at the correctional institution. Judge's Decision at 2-3. [n4] 

      Foremen are required to attend daily meetings, at which management dispenses information about operations and changes in the facility. At the January 19, 1996, daily meeting, management announced a change in the correctional institution's lay-in practice. Under the old practice, management approved lay-ins on a routine basis whenever foremen were on scheduled or unscheduled leave. See Transcript at 207, 245. Under the new policy, the practice of laying in inmates is no longer considered routine. The foremen attending the January 19 meeting understood that the new policy would result in more "doubling up." [n5]  The Union had not been notified prior to the meeting that management intended to change its lay-in policy. The new policy went into effect immediately.

      On January 22, 1996, the Union requested negotiations over management's change in lay-in policy. The Respondent did not respond to this request for several weeks, and on February 23, 1996, the Union filed an unfair labor practice charge. Sometime after that, the parties scheduled for April 4, 1996, an "informational meeting" over the matter. Id. at 6-7.

      In the meantime, at the March 11, 1996 daily meeting, management announced a change in the correctional institution's accountability practice. Under the old practice, foremen were to remain in their workshops while accounting for their inmates prior to releasing them. The inmates were then required to pass through a metal detector, supervised by another foreman, before proceeding to their next destination. Under the new policy, all the foremen are required to leave their shops and report to the gate where inmates are checked through the metal detector. The Union had not been notified prior to the meeting that management intended to change the accountability practice. The change took effect after the meeting.

      On March 22, 1996, the Union requested a return to the status quo ante regarding the accountability practice and requested negotiations over the change. The Union and the Respondent subsequently agreed to discuss the change in accountability practice at the April 4, 1996 informational meeting.

      At the April 4 meeting, the Union stated that it would submit proposals for formal negotiations over the changes in lay-in and accountability practices. At the June 6, 1996 meeting, the parties met in order to negotiate over the written proposals submitted by the Union. [n6]  The Union also offered an oral proposal with regard to the lay-in practice, and, with regard to the accountability practice, "suggested that releases be staggered." Id. at 11. [n7]  The Respondent's position was that the Union's written proposals were non-negotiable, and that "anything else submitted by the Union would be considered, but not negotiated." Id. at 21. The June 6 meeting was the only occasion on which the parties met. The General Counsel's consolidated complaint alleges, among other things, that since the June 6, 1996 meeting, the Respondent has refused to bargain over both the substance and impact and implementation of the changes.

B.     The Judge's Decision

      First, the Judge held that the Respondent violated section 7116(a)(1) and (8) of the Statute by conducting formal discussions with bargaining unit employees on January 19, 1996, and March 11, 1996, concerning workload and procedures for performing the job, with- [ v55 p850 ] out providing the Union an opportunity to be represented as required by section 7114(a)(2)(A) of the Statute. The Judge found no merit in the Respondent's contention that the Union was given the opportunity to be represented at the January 19 meeting.

      Next, the Judge held that when the Respondent implemented the changes without first giving the Union the opportunity to bargain, it violated sections 7116(a)(1) and (5) of the Statute. In doing so, the Judge ruled that the Respondent was required to bargain over the impact and implementation of its decisions, which had more than a de minimis effect on conditions of employment. With regard to the Respondent's argument that a concern for internal security justified the changes, the Judge ruled that such considerations insulate management from substance bargaining but do not affect the obligation to bargain over impact and implementation.

      Further, the Judge stated that the General Counsel argued that the subjects of the Respondent's changes fall within section 7106(b)(1) of the statute, and that the "Respondent appears to agree." Id. at 20. The Judge rejected the General Counsel's argument that Executive Order 12,871 (1993) served as an election to bargain over 7106(b) subjects. The Judge concluded that even if the subjects fall under section 7106(b)(1), they would be negotiable only as to impact and implementation in the absence of an election.

      The Judge determined that the Union did not waive its right to negotiate over the impact and implementation of the changes. Instead, the Judge found that the Respondent's declaration that the Union's written proposals were non-negotiable, and the Respondent's statement that "anything else submitted by the Union would be considered, but not negotiated[,]" "had the tendency to foreclose bargaining" over any aspects of the subjects of the proposals that were negotiable and made the prospect of submitting additional proposals "appear to be futile[.]" Judge's Decision at 21. The Judge concluded that the Union was not required to insist on further negotiations in order to preserve its bargaining rights. Id. In support, the Judge cited Blue Grass Army Depot, Richmond, Kentucky, 50 FLRA 643, 653 (1995) (Army Depot Richmond).

      As a remedy, the Judge rejected the Respondent's request for a prospective bargaining order, and ordered a return to the status quo ante. In determining that a status quo ante remedy was appropriate, the Judge weighed the factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI). [n8]  Judge's Decision at 22-25. The Judge found that no notice of the changes was given to the Union and, when the Union requested bargaining, the Respondent failed to respond immediately to the request. The Judge further rejected the Respondent's argument that its failure to bargain was not willful because it relied on incorrect advice that it had no duty to bargain. The Judge found that the evidence concerning the advice given by the Respondent's labor relations office did not relate to the Respondent's unilateral actions in January and March, and that the Authority considers failures to bargain willful even where the [ v55 p851 ] respondent mistakenly believes it has no duty to bargain. In addition, the Judge determined that the changes had an impact on employees, noting the findings he made with regard to the changes having more than a de minimis effect on conditions of employment.

      The Judge also rejected the Respondent's contention that a status quo ante order would "disrupt or impair the efficiency and effectiveness" of its operation. Id. at 24. In this regard, the Judge stated that FCI "appears to recognize that restoration of the status quo will often have some disruptive effect" and "places in the balance the degree of disruption, not merely whether there will be any disruption." Id. The Judge further stated that the Authority balances this question based upon "specific evidence in the record indicating the disruption that will be caused," rather than "bare assertions that such results will follow." Id. As authority, the Judge cited to U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky, 38 FLRA 647, 650 (1990) (Lexington-Blue Grass). The Judge determined that the Respondent had not submitted specific evidence that a return to the status quo ante would disrupt its operations, and concluded that the effect of such a remedy on employees would not be severe.

      The Judge also determined, however, that the General Counsel's characterization of the Respondent's past practice of laying in inmates was "too vague as a basis" for measuring the Respondent's compliance with a status quo ante order. Judge's Decision at 26. Therefore, the Judge stated that he would "formulate a description of the status quo ante with respect to lay-ins and doubling up that, although unavoidably arbitrary . . . will probably approximate the manner in which the former practice applied to individual foremen." Id.

IV.     Respondent's Exceptions

      First, the Respondent concedes that it unilaterally changed two conditions of employment without providing the Union with notice and an opportunity to be present at formal discussions, or affording the Union an opportunity to bargain over the changes. The Respondent argues, however, that the Respondent met, and then concluded, its obligation to bargain when it declared the Union's proposals regarding these matters to be non-negotiable. Therefore, the Respondent contends that the portion of the Judges's remedy that it construes as "ordering the Respondent to engage in additional bargaining" is improper because the Respondent fulfilled its duty to bargain over the changes. Exceptions at 11, 32-33. As authority for this proposition, the Respondent cites to Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651, 656 (1988). In this connection, the Respondent contests the Judge's finding that it foreclosed bargaining by pointing out that the cases cited by the Judge all address a situation where "the unions involved were never given the opportunity to engage in actual face-to-face negotiations[,]" whereas in this case the Respondent gave the Union such an opportunity. Exceptions at 22-25.

      Next, the Respondent excepts to the Judge's finding that the "Respondent seems to agree" that the Union's proposals fell within 7106(b)(1) of the Statute. Id. at 14, n.5. The Respondent also contends that both proposals directly and excessively interfere with the Respondent's right to determine its internal security practices, and are therefore non-negotiable under sections 7106(b)(2) and 7106(b)(3) of the Statute. As support for this argument, the Respondent states that "practically everything in a correctional facility . . . pertaining to control of inmate activity . . . is a matter of internal security." Id. at 15, n.7. As support, the Respondent cites to United States Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 43 FLRA 642, 656 (1991), enforced, 12 F.3d 882 (9th Cir. 1993).

      The Respondent contends that a status quo ante remedy would be inappropriate. First, the Respondent claims that such a remedy would interfere with the Authority's policy of deferring to the internal security concerns of Federal correctional institutions, citing, among other cases, American Federation of Government Employees, AFL-CIO, Local 683 and Department of Justice, Federal Correctional Institution, Sandstone, Minnesota, 30 FLRA 497, 500 (1987) (FCI Sandstone). Second, the Respondent claims that a return to the status quo would cause disruption to administration of the facility. In this connection, the Respondent excepts to the Judge's finding that the Respondent pointed "to no specific evidence as to the extent of such disruption, or to the particular `internal security' risks that would occur" as a result of restoration of the status quo. Exceptions at 25. Third, the Respondent claims that the impact of the changes on the employees was not severe. Fourth, the Respondent contends that the willfulness of its failure to bargain "must [be] tempered" by its subsequent negotiations with the Union and mutual delay in reaching negotiations. Id. at 29. Fifth, citing as authority U.S. Army Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA 457 (1986) (Adjutant General Publications Center) the Respondent contends that termination of its internal security practices would cause a per se disruption. [ v55 p852 ]

      Finally, the Respondent argues that the status quo ante remedy must be set aside because the Administrative Procedures Act (APA), 5 U.S.C. § 706(2)(A), states that an agency action shall be overturned when it is "arbitrary" in nature. Exceptions at 31-32. In this regard, the Respondent states that the Judge's Order "runs afoul of" the APA because the Judge stated that his formulation of the status quo was "unavoidably arbitrary." Id. The Respondent also argues that the General Counsel "fail[ed] . . . to create a record [ ] sufficient to adequately identify what the status quo was[,]" which should therefore preclude the Authority from imposing a status quo remedy. Id. at 32.

V.     Analysis and Conclusions

A.     Analytical Framework To Be Applied In This Case

      Prior to implementing a change in conditions of employment of bargaining unit employees, an agency is required to provide the exclusive representative with notice and an opportunity to bargain over those aspects of the change that are within the duty to bargain. See, e.g., U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 81 (1997). Absent a waiver of bargaining rights, parties must satisfy their mutual obligation to bargain before implementing changes in conditions of employment. See id.; National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395 (1990).

      The extent to which an agency is required to bargain over changes in conditions of employment depends on the nature of the change. Specifically, a union may be entitled under the Statute to negotiate over the actual decision, or substance, of the change. See, e.g., Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153, 155 (1990). An agency's decision to change a condition of employment may constitute an exercise of a management right under section 7106, however, and is not negotiable. Where the substance of the decision is not itself subject to negotiation, the agency is nonetheless obligated to bargain over the impact and implementation of that decision if the resulting changes have a more than de minimis effect on conditions of employment. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986). In circumstances where the effect of the change is more than de minimis, and the agency fails to provide adequate prior notice thereof to the exclusive representative, or rejects a timely request for negotiations pursuant to section 7106(b)(2) and (3) of the Statute, the agency will be found to have violated section 7116(a)(1) and (5) of the Statute. See, e.g., U.S. Government Printing Office, 13 FLRA 203 (1983); Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981).

      In addition, where a union submits bargaining proposals and an agency refuses to bargain over them based on the contention that they are non-negotiable, the agency acts at its peril if it then implements the proposed change in conditions of employment. If the union's proposal is held to be negotiable, the agency will be found to have violated section 7116(a)(1) and (5) of the Statute by implementing the change without bargaining over the negotiable proposal. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 258, 262-63 (1991).

      In this case, the Respondent does not contest the Judge's findings that: (1) the Respondent held formal discussions with employees at which it announced changes in general conditions of employment without giving the Union notice or opportunity to attend; (2) the Respondent unilaterally implemented the changes in working conditions, which had more than de minimis impact, without providing the Union with notice or an opportunity to bargain; and (3) the Union did not waive its bargaining rights. Accordingly, we adopt those findings. [n9] 

B.     The Proposals Concern Matters That Are Negotiable at the Election of the Agency Under Section 7106(b)(1) of the Statute

      Matters encompassed by the terms of section 7106(b) constitute exceptions to the rights set forth in section 7106(a). [n10]  National Association of Government [ v55 p853 ] Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 393 (1995). As such, bargaining over matters encompassed by section 7106(b)(1) is permitted notwithstanding that such matters also affect rights under section 7106(a). The General Counsel argued before the Judge that its proposals were encompassed by section 7106(b)(1) of the Statute, and that Executive Order 12,871 required the Respondent to negotiate over the substance of its decision. [n11] 

      In this case, the Respondent excepts to the Judge's conclusion that the Respondent "appears to agree" that the Union's proposals are encompassed by 7106(b)(1) of the Statute. Exceptions at 14, n.5. Instead, the Respondent argues that whether the Union was "entitled to bargain" with regard to 7106(b)(1) matters is an "essentially meaningless" question and that the Authority should only consider the Respondent's claim that it fulfilled its obligation to bargain with the Union. [n12]  Id. For the reasons that follow, we conclude that the subjects of the Union's proposals are encompassed by section 7106(b)(1) of the Statute, and, as there has been no election to bargain, we dismiss the portion of the General Counsel's complaint alleging that the Union's proposals were substantively bargainable with regard to 7106(b)(1) matters. [n13] 

1.     The Lay-in Proposal Concerns the Numbers of Employees Assigned to a Work Project

      The "numbers, types, and grades" phrase in section 7106(b)(1) applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. See National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1034-35 (1997) (a proposal requiring bilateral agreement concerning the number of employees or positions to be assigned to an organizational subdivision, work project or tour of duty comes within the scope of section 7106(b)(1) regardless of whether the proposal would increase, decrease or maintain the number that the agency proposes to assign or has assigned).

      In this case, the foremen's duty to supervise inmates constitutes a work project under Authority precedent. See American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, Dunbar Branch Office, Baltimore, Maryland, 37 FLRA 350, 355 (1990) (Authority construed the term "work project" in section 7106(b)(1) to mean "particular job" or "task").

      The first two parts of the Union's proposal require the Respondent to lay-in the groups of inmates assigned to be supervised by a foreman whose group consists of more than four inmates, whenever that foreman is on leave. The third part of the lay-in proposal states that if employees from other departments take over for an absent foreman, the agency would not have to lay-in the absent foreman's inmates. Read as a whole, the proposal requires a sufficient number of foremen or substitutes for a work project and, in effect, limits the Respondent's ability to allocate certain numbers of staff to supervise particular inmates.

      The Union's proposal is analogous to Proposal 2 in American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004, 1005 (1982), which provided that "[t]here should be ample personnel working in the Superior Court and U.S. District Court cellblocks for the safety of the deputies as well as others." The Authority determined that the proposal concerned the numbers of employees assigned to an organizational subdivision. Id. at 1007. In this case, the effect of the proposal is to require the assignment of [ v55 p854 ] a certain number of foremen to the work project of supervising inmates, which is a matter that falls within section 7106(b)(1). See Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 805 (1991) (a proposal limiting the agency's discretion to determine the number of employees to be assigned to a work project concerned the number, types and grades of employees assigned to a work project under section 7106(b)(1)). Accordingly, we find that the proposal is within the meaning of section 7106(b)(1) of the Statute and is negotiable at the Respondent's election.

2.     The Accountability Proposal Concerns the Methods and Means of Performing Work

      The Authority has construed "method" to refer to "the way in which an agency performs its work." See International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813, 818 (1996). The Authority has construed "means" to refer to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." Id.

      The Respondent has determined that its internal security will be strengthened if foremen account for their inmates outside, next to the metal detector, rather than inside the work stations. The Union's proposal calls for the accounting process to occur in the shop area. As such, the proposed procedure concerns the way in which the Respondent will accomplish its work. Accordingly, the Respondent's plan regards the "method" by which its work will be carried out.

      Additionally, we find that the use or non-use of a metal detector to clear the inmates for release from the work area constitutes an "instrumentality," and hence "means," of the performance of the Respondent's work within the meaning of section 7106(b)(1) of the Statute. See, e.g., American Federation of Government Employees, Local 3807 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 54 FLRA 642, 652 (1998) (determination of use of helicopters concerned "means" of performing the agency's work); National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 406-409 (1990) (agency's decision to locate employees according to their proximity to computers and other equipment concerned method and means of performing work). The means need not be indispensable to the accomplishment of the agency's mission; rather, the means need only be "a matter that is `used to attain or make more likely the attainment of a desired end' or `used by the agency for the accomplishing or furthering of the performance of its work.'" See National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Region V, Walnut Creek, California, 41 FLRA 1195, 1202 (1991).

      Based on the foregoing, we find that the Union's accountability practice concerns the methods and means of performing work. [n14] 

      Here, the Respondent did not elect to negotiate on either the lay-in or accountability proposals. Therefore, pursuant to Authority precedent regarding section 7106(b)(1) matters, the Respondent did not violate the Statute by refusing to negotiate over the substance of these proposals. PTO, 54 FLRA at 423. Therefore, we dismiss the portion of the complaint directed towards the Respondent's failure to bargain over substantive 7106(b)(1) matters. See id. at 388 (proposal negotiable at the election of the agency under section 7106(b)(1) of the Statute resulted in dismissal).

C.     The Respondent Violated the Statute By Foreclosing Bargaining Over the Impact and Implementation of the Union's Post-Implementation Proposals

      Where the substance of the decision is not itself subject to negotiation, an agency is nonetheless obligated to bargain over the impact and implementation of the decision if the resulting changes have a more than de minimis effect on conditions of employment. See Air Force Logistics Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 53 FLRA 1664, 1668 (1998). As we noted above, we adopt the Judge's finding that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing conditions of employment without providing the Union with notice or an opportunity to bargain. In the circumstances presented here, we also find that the Respondent violated the Statute by foreclosing bargaining over the Union's post-implementation proposals.

      The facts of this case establish that the Respondent did not satisfy its duty to bargain over the impact and implementation issues submitted by the Union. Although the Respondent correctly declared that the Union's written proposals were not the subject of mandatory bargaining, the Union offered an oral proposal with regard to the lay-in practice, and, with regard to the [ v55 p855 ] accountability practice, "suggested that releases be staggered." Judge's Decision at 11. In this connection, the Judge found that a management representative had told the Union that the Union's written proposals were non-negotiable, and that "anything else submitted by the Union would be considered, but not negotiated." See id. at 21. The testimony of Union representatives also supports the Judge's findings in this regard. Based upon the evidence, we conclude that the Respondent foreclosed bargaining by communicating to the Union that bargaining over any further proposals would be futile.

      It is well established that when an agency gives the impression that it is futile for the union to attempt negotiations over its proposals, the agency has failed to engage in good faith bargaining in violation of the Statute. See Indian Health Service, Crownpoint Comprehensive Health Care Facility, Crownpoint, New Mexico, 53 FLRA 1161, 1169-1171 (1998) (respondent violated Statute by failing to engage in meaningful discussion over pending changes in employees' work schedules); Army Depot Richmond, 50 FLRA at 651-53 (respondent violated Statute by indicating it would not entertain union's proposal regarding impact and implementation of pending change); U.S. Customs Service (Washington, D.C.); and U.S. Customs Service, Northeast Region (Boston, Massachusetts), 29 FLRA 891, 925-26 (1987) (respondent violated Statute by foreclosing bargaining over impact and implementation of pending changes). See also U.S. Department of Health and Human Services Public Health Service, Indian Health Service, Indian Hospital, Rapid City, South Dakota, 37 FLRA 972, 979-81 (1990) (although decision to change smoking policy was non-negotiable, respondent acted inconsistently with statutory obligation to bargain by refusing to entertain any proposals regarding changes). Accordingly, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute when it foreclosed bargaining over the impact and implementation of its decision.

D.     A Status Quo Ante Remedy is Proper Under FCI.

      The Authority has broad discretion under the Statute to fashion appropriate remedies for unfair labor practices. See National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc) (NTEU v. FLRA). Where management changes a condition of employment without fulfilling its obligation to bargain over the substance of the decision to make the change, the Authority orders a status quo ante remedy in the absence of special circumstances. See, e.g., Department of Veterans Affairs Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1580 n.13 (1996) (VAMC Asheville). In contrast, where the bargaining obligation pertaining to a change is limited to the impact and implementation of the decision, the Authority applies criteria set forth in FCI, 8 FLRA 604, to determine whether a status quo ante remedy is appropriate. See, e.g., U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 84-85 (1997). The purpose of a status quo ante remedy is to place parties, including employees, in the positions they would have been in had there been no unlawful conduct. See VAMC Asheville, 51 FLRA at 1580. Other "traditional" remedies, such as retroactive bargaining orders and cease-and-desist orders accompanied by the posting of a notice to employees (which are provided in virtually all cases where a violation is found), and, in appropriate cases, nontraditional remedies, are also available. See F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 161 (1996).

      The Respondent did not fulfill its obligation to bargain over the impact and implementation of the decision that created the change in conditions of employment. Therefore, the Judge was correct to apply the FCI criteria in determining whether a status quo ante remedy is appropriate. [n15]  Accordingly, we address the Respondent's exceptions with respect to these criteria.

      First, the Respondent asserts that there was little, if any, evidence of significant impact of the changes on employees and points to the Judge's finding that the impact was not severe. However, the Judge found that the changes had more than a de minimis impact on employees' conditions of employment, and that the impact was sufficient to support a status quo ante remedy. The record supports the Judge's findings and we find no merit to the Respondent's exception.

      Next, we reject the Respondent's claims that the willfulness of its refusal to bargain must be tempered by the fact that there were negotiations and the fact that any delay in bargaining was mutual. The fact that some bargaining occurred over the Union's proposals does not affect the Judge's finding that the Respondent willfully failed to bargain over the impact and implementation of the changes. See Lexington-Blue Grass, 38 FLRA at 649 (intentional failure to notify union of an impending change is willful, although based on erroneous conclusion that it was not obligated to bargain over the subject matter). Furthermore, the obligation to bargain arose [ v55 p856 ] prior to implementation of the changes. Here, the Respondent unilaterally implemented the changes in lay-in and accountability practices on January 19, 1996, and March 11, 1996, respectively, whereupon the Union promptly requested bargaining. The timing of negotiations subsequent to the implementation of the changes does not temper the willful nature of the Respondent's conduct. [n16] 

      Finally, the Respondent argues that a status quo ante remedy would be inappropriate because it would disrupt the internal security practices at the correctional institution. In this connection, the Respondent excepts to the Judge's finding that the Respondent pointed "to no specific evidence as to the extent of such disruption, or to the particular `internal security' risks that would occur" as a result of restoration of the status quo. Exceptions at 25. The Respondent refers to the testimony of several of its employees as evidence of the disruptive effect of a status quo ante remedy. In particular, the Respondent points to testimony explaining that the change in lay-in practice was designed to limit the time during which inmates would be idle and, thereby, limit the opportunity to plan escapes, engage in gang affairs and narcotics transactions, and endanger personnel. Tr. at 231. The change in accountability practice was designed to control the number of inmates who were released at one time from the work area. According to that testimony, with too many inmates waiting in the lunch lines, "they get unruly." Tr. at 304-306.

      When it is alleged that a status quo ante remedy would cause disruption to the efficiency and effectiveness of the agency's operations, the Authority bases its findings on specific evidence in the record concerning how, and to what degree, such disruption would occur. Lexington-Blue Grass, 38 FLRA at 649-50. In our view, and as explained below, the testimony referred to by the Respondent does not militate against issuance of a status quo ante remedy in this case.

      The Respondent's testimony provides various reasons to support the changes in lay-in and accountability practices. Without question, maintaining appropriate controls over an inmate population and taking measures to prevent the possibility of harm to inmates and employees are of great concern in a correctional facility. However, these considerations are present at all times in a correctional setting. The Respondent has not established how, and to what degree, disruption to the efficiency and effectiveness of its operations would be caused by restoration of the former practices. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 36 FLRA 655, 672 (1990) (status quo ante remedy appropriate notwithstanding fact that change may have improved quality or efficiency of agency's operations because the change was not necessary "from either an operational or legal standpoint[.]"); United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 34 FLRA 1035, 1046-47 (1990) (Authority found no evidence that status quo ante remedy would impair efficiency and effectiveness of critical agency operations, noting particularly that agency would be free to enforce existing policies and procedures regarding such operations). We note that the Respondent would be required to adhere to its former practices only until such time as the Respondent fulfills its bargaining obligations under the Statute.

      In reaching this result, we recognize that a Federal correctional facility has "special security concerns" that are of "paramount importance." FCI Sandstone, 30 FLRA at 500; American Federation of Government Employees, Council of Prison Locals, Local 919 and U.S. Department of Justice, Federal Bureau of Prisons, Leavenworth, Kansas, 42 FLRA 1295, 1301 (1991). However, as noted above, these concerns are always present in correctional facilities. The record in this case does not reveal a significant security risk outweighing the totality of the factors favoring a status quo ante remedy. No basis is established to find that the existence of general security concerns precludes a status quo ante remedy where, on balance, the other FCI criteria support the remedy and the Authority determines that the remedy will effectuate the purposes and policies of the Statute. See NTEU v. FLRA, 910 F.2d at 967 (discussing Authority's broad discretion to fashion appropriate remedies for unfair labor practices).

      Consequently, we agree with the Judge that the Respondent has not shown that a status quo ante remedy would unduly disrupt or impair the effectiveness of the Respondent's operations. Compare U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 37 FLRA 278, 287 (1990) (respondent did not establish a sufficient degree of disruption to its operations to outweigh the benefits of a status quo ante remedy) with Federal Aviation Administration, 42 FLRA 82, 89 (1991) (record supported Judge's finding that, upon balancing the concerns involved, a status quo ante remedy would disrupt or [ v55 p857 ] impair the efficiency and effectiveness of respondent's operations).

      Finally, we reject the Respondent's assertion that, pursuant to Adjutant General Publications Center, 22 FLRA 457, a status quo ante remedy would cause a per se disruption. In Adjutant General Publications Center, the Authority noted that the parties agreed that the changes made by the respondent were an exercise of management's right to determine internal security practices under section 7106(a)(1) of the Statute. Given the facts of that case, the Authority gave "greater weight" to the disruptive effect of restoring the pre-existing practice. Id. at 459. The Authority did not hold, however, that the presence of internal security concerns precludes status quo ante relief in all cases. Thus, while the Respondent's exercise of its internal security right is a factor to be considered in weighing whether a status quo ante remedy would have a disruptive effect upon management's operations, it is not dispositive.

      In sum, we conclude that a status quo ante remedy effectuates the broad policies of the Statute. Here, the Respondent violated the Statute when it unilaterally implemented changes in conditions of employment without first giving the Union an opportunity to bargain, and again violated the Statute when it foreclosed bargaining over the impact and implementation of the Union's post-implementation proposals. One critical purpose of the remedy is to deter the Respondent and future parties from failing to satisfy their duty to bargain, and reduce any incentive that may exist to unilaterally implement changes in conditions of employment and then refuse to negotiate over all pertinent aspects of the impact and implementation of the changes. See, e.g., FDIC v. FLRA, 977 F.2d 1493, 1498 (D.C. Cir. 1992) (the purpose of a status quo ante remedy is "to ensure that agencies will have incentive to bargain with their unions."); NTEU v. FLRA, 910 F.2d at 969 ("[W]here an agency has taken unilateral action that disturbs the status quo and has illegally refused to give a union an opportunity to bargain over the decision (or its impact), a stronger case can be made for the proposition that the Authority, as does the NLRB, should restore the status quo ante in a remedial order . . . . "). Issuance of a status quo ante order will promote the purpose stated above.

E.     The Portion of the Judge's Decision Directing the Respondent To Return To Status Quo Regarding the Former Lay-in Practice Will Be Modified

      The Respondent asserts that the status quo ante remedy recommended by the Judge should be set aside because: (1) the General Counsel failed to meet its burden of presenting evidence "sufficient to adequately identify . . . the status quo" with regard to the Respondent's former lay-in practice; and (2) the Judge violated the APA, 5 U.S.C. § 706 (2)(A), by formulating a description of the status quo that he said was "unavoidably arbitrary[.]" Exceptions at 31-32.

      As explained above, we find that the record is sufficient to order a status quo ante remedy. Contrary to the Respondent's contentions, we find that the General Counsel met his burden of proof with respect to a status quo ante remedy. As found by the Judge, the Respondent's former practice was to approve lay-ins on a routine basis. Judge's Decision at 26; See also Tr. at 207, 245. Accordingly, a return to the status quo will require the Respondent to restore this former practice.

      The Judge recommended as a remedy an application of the prior lay-in practice that was admittedly his approximation of the status quo ante. We agree with the Respondent to the extent it argues that the approximate description of the status quo is not appropriate. Because the Judge's formula is not an exact replication of the prior practice, we will modify his recommended order to require a return to the status quo ante without the imposition of an approximate formula. [n17]  We will leave to compliance the development of the exact parameters of the Respondent's lay-in practice that must be implemented.

VI.     Summary

      We find that the Respondent violated section 7116(a)(1) and (5) of the Statute when it foreclosed bargaining over the impact and implementation of the Union's post-implementation proposals; we affirm that a status quo ante remedy is appropriate, and modify the Judge's Decision with respect to lay-ins to allow the parties to achieve the status quo upon compliance. [ v55 p858 ]

VII.     Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, shall:

      1.     Cease and desist from:

           (a)     Conducting formal discussions with employees in the bargaining unit exclusively represented by the American Federation of Government Employees, AFL-CIO (AFGE), without affording AFGE's agent, AFGE, Local 3828, prior notice of and the opportunity to be represented at the formal discussions.

           (b)     Unilaterally changing working conditions of bargaining unit employees by implementing new policies on inmate lay-ins and on inmate release procedures without fulfilling its obligation to bargain with AFGE, Local 3828, concerning the impact and implementation of such changes.

           (c)     In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)     Notify AFGE, Local 3828, and afford it the opportunity to be represented at formal discussions.

           (b)     Rescind the change in inmate lay-in policy announced in January 1996, and the changes in inmate release procedures announced in March and April 1996.

           (c)     Restore the practices concerning the ordering of inmate lay-ins as they existed prior to January 19, 1996.

           (d)     Restore the procedures for releasing inmates from their work crews before lunch and before the afternoon recall as they existed prior to March 11, 1996.

           (e)     Provide AFGE, Local 3828, with notice of any intention to change the practices and procedures addressed in this order and, upon request, bargain in good faith over the impact and implementation of such changes.

           (f)     Post at its facilities where bargaining unit employees are located 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 Warden 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.

           (g)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Dallas Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT conduct formal discussions with any bargaining unit employees concerning any grievance or any personnel policy or practices or other general condition of employment without affording the American Federation of Government Employees, Local 3828, AFL-CIO (the Union) prior notice of and the opportunity to be represented at the formal discussions.

WE WILL NOT unilaterally change working conditions of bargaining unit employees by implementing new policies on inmate lay-ins or inmate release procedures without fulfilling our obligation to bargain with the Union concerning the impact and implementation of such changes.

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

WE WILL provide the Union with prior notice and an opportunity to be represented at any formal discussion between one or more representatives of the correctional institution and one or more employees in the unit or [ v55 p859 ] their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.

WE WILL rescind the change in inmate lay-in policy announced in January 1996, and the changes in inmate release procedures announced in March and April 1996.

WE WILL restore the practices concerning the ordering of inmate lay-ins as they existed prior to January 19, 1996.

WE WILL restore the procedures for releasing inmates from their work crews before lunch and before the afternoon recall as they existed prior to March 11, 1996.

WE WILL provide the Union with notice of any intention to change the practices and procedures addressed in this order and, upon request, bargain in good faith over the impact and implementation of such changes.

      ________________________
(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 of the Federal Labor Relations Authority, Dallas Regional Office, whose address is: 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, and whose telephone number is: (214)767-4996


Chair Phyllis N. Segal, concurring:

      I write separately to state why I do not join in Section V.B. and C. of the Majority opinion, which makes findings regarding the negotiability of the Charging Party's proposals and the Respondent's actions in foreclosing bargaining over the proposals.

      The Respondent clearly states in its exceptions, as pertinent here, that "it is not contesting its failure . . . to provide advance notice and an opportunity to bargain over the lay-in and accountability issues." Exceptions at 11. Accord Exceptions at 20 (Respondent states that it is "not asserting" that certain Authority decisions "absolve it of all liability."). In addition, although the Respondent excepts specifically to statements in the Judge's decision, Exceptions at 2-5, it does not except to the Judge's findings that it violated the Statute. Consistent with this, the Respondent explicitly describes its exceptions as relating only to the Judge's recommended remedy. See id. at 11, 20. I do not see any ambiguity in the Respondent's exceptions on this point.

      Given that the Respondent does not except to the Judge's findings that it violated the Statute, as alleged in the consolidated complaint, I would adopt these findings without precedential significance based on our regulations and well-settled precedent. See 5 C.F.R. § 2423.41. I do not agree with the Majority's view that some, but not all, of these findings should be reexamined by the Authority. Compare Majority opinion at Section V.A. n.9 with Section V.B. and C.

      The only issues placed before the Authority by the Respondent's exceptions are those addressed in Sections V.D. and E. of the Majority decision. With respect to those issues, I agree, for the reasons stated in the Majority opinion, that a status quo ante remedy is warranted in this case.


File 1: Authority's Decision in 55 FLRA No. 147
File 2: ALJ's Decision


Footnote # 1 for 55 FLRA No. 147 - Authority's Decision

   The concurring opinion of Chair Segal appears at the end of this decision.


Footnote # 2 for 55 FLRA No. 147 - Authority's Decision

   In view of this finding, we do not consider the Respondent's opposition to the General Counsel's cross-exceptions.


Footnote # 3 for 55 FLRA No. 147 - Authority's Decision

   The General Counsel's opposition and cross-exceptions were filed prior to October 1, 1997, the effective date of amendments to the Authority's Regulations. See 5 C.F.R. § 2423 (1997). We note that the Authority's Order in this case is issued pursuant to section 2423.40-41 of the Authority's revised Regulations, which applies to all unfair labor practice complaints pending after October 1, 1997. Unfair Labor Practice Proceedings: Miscellaneous and General Requirements, 62 Fed. Reg. 46,175 (1997); clarifying, 5 C.F.R. Parts 2423 and 2429; 62 Fed. Reg. 40,911 (1997).


Footnote # 4 for 55 FLRA No. 147 - Authority's Decision

   During a "lay-in," inmates who are part of a work crew remain in, or are sent back to, their respective housing units on a day when a crew foreman is not available for work. "Accountability" concerns the foremen's duty to account for the location of each inmate in the work crew every thirty minutes.


Footnote # 5 for 55 FLRA No. 147 - Authority's Decision

   In a "double up," a foreman is assigned to supervise the missing foreman's crew in addition to his own crew.


Footnote # 6 for 55 FLRA No. 147 - Authority's Decision

   The text of the proposals is as follows:

                Detail Lay-ins, Facilities Department

1.     When detail foremen supervising more than 4 inmates are on scheduled annual leave, training, or scheduled sick leave, their inmate details will be laid in the units and not assigned to other foremen.
2.     When detail foremen supervising more than 4 inmates are on unscheduled annual or sick leave, their inmate details will be laid in the units and not assigned to other foremen.
3.     If an absent detail foreman's position is filled through borrowing a staff member from another department, this will not apply.

Exceptions at 7.

                Inmate Accountability, Facilities Department

1.     At 10:30 AM, Monday through Friday, excluding holidays, detail foremen will secure their inmate details in their shops and account for their inmates. As the details are called for the noon meal, the foremen will release their inmates.
2.     At 3:30 PM, Monday through Friday, excluding holidays, the detail foremen will secure their inmate details in their shops and account for their inmates. The inmates will be released to their units at yard recall.

Exceptions at 8.


Footnote # 7 for 55 FLRA No. 147 - Authority's Decision

   With regard to the change in lay-in practice, the Union proposed that, in the event of doubling up the crews, the additional inmates be given a task but not be allowed to carry tools. With regard to the change in accountability practice, the suggestion that the releases of inmates be staggered was offered so that the metal detector would not be flooded with too many inmates at one time.


Footnote # 8 for 55 FLRA No. 147 - Authority's Decision

   In FCI, the Authority enumerated the following factors to be considered in determining whether to issue a status quo ante remedy following an agency's unlawful implementation of changes in unit employees' conditions of employment over which bargaining is required: (1) whether and when notice was given the union by the agency concerning the change; (2) whether and when the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargainingobligation; (4) the nature and extent of the adverse impacton unit employees; and (5) whether and to what degree astatus quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. See Army and Air Force Exchange Service, Waco Distribution Center, Waco, Texas, 53 FLRA 749, 753 n.6 (1997), citing FCI, 8 FLRA at 606.


Footnote # 9 for 55 FLRA No. 147 - Authority's Decision

   We adopt without precedential significance those findings to which no exceptions were filed, pursuant to section 2423.41 of the Authority's Regulations. See 24th Combat Support Group, Howard Air Force Base, Republic of Panama, 55 FLRA 273, 281 n.13 (1999) (citing virtually identical section of the Authority's former regulations). We note that notwithstanding the Agency's admission that it unilaterally implemented changes in conditions of employment without bargaining, the Agency also asserts in a headnote that "The Respondent Fulfilled Its Bargaining Responsibilities Regarding Lay-ins and Inmate Accountability." Exceptions at 12. In support of this exception, the Agency argues that the Union's proposals were not negotiable, which permitted the Agency to terminate bargaining. Exceptions at 20-25. The Agency essentially argues that it has cured its initial deficiency. In contrast to our concurring colleague, we address the merits of the Agency's argument by evaluating the negotiability of the Union's proposals.


Footnote # 10 for 55 FLRA No. 147 - Authority's Decision

   By virtue of his arguments, the General Counsel essentially acknowledged before the Judge, and it is clear that, the proposals affect management rights under 7106(a)(1).


Footnote # 11 for 55 FLRA No. 147 - Authority's Decision

   While the Respondent argues that the Union's proposals were non-negotiable under 7106(b)(2) and (3), we do not need to address these claims. The General Counsel argued only that the Union's proposals were negotiable under section 7106(b)(1).


Footnote # 12 for 55 FLRA No. 147 - Authority's Decision

   Whether a union's proposals are encompassed by 7106(b)(1) is hardly a meaningless question. As relevant here, subjects that are encompassed by section 7106(b)(1) are within the duty to bargain at the election of the agency.


Footnote # 13 for 55 FLRA No. 147 - Authority's Decision

   For reasons stated in his dissent in U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 54 FLRA 360, 392-405 (1998) (PTO), petition denied, National Association of Government Employees, Inc. v. FLRA, 179 F.3d 946 (D.C. Cir. 1999), and respectfully disagreeing with the court's contrary position, Member Wasserman adheres to his view that Executive Order 12,871 constitutes an election to bargain. Accordingly, Member Wasserman would evaluate the General Counsel's complaint regarding post-implementation bargaining on the basis of whether the Respondent fulfilled its obligation to bargain over the substance of its decision, and not on the limited basis of whether the Respondent foreclosed impact and implementation bargaining. However, in view of the fact that the status quo ante remedy in this case would be the same regardless of whether the violation is based on a refusal to bargain over the substance of the changes or their impact and implementation, and in order to reach a disposition on this point, Member Wasserman joins in finding that the violation is limited to a refusal to bargain impact and implementation. See, e.g., Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508, 552 (1987) petition for review granted as to other matters sub nom. Fort Bragg Association of Educators v. FLRA, 870 F.2d 698 (D.C. Cir. 1989).


Footnote # 14 for 55 FLRA No. 147 - Authority's Decision

   As it would make no difference to the outcome of our section 7106(b)(1) analysis, it is unnecessary to address whether the proposal also concerns the numbers, types, and grades of employees.


Footnote # 15 for 55 FLRA No. 147 - Authority's Decision

   Member Wasserman would not apply the FCI factors because of his view that the Respondent had to bargain over the substance of the change pursuant to the election to bargain in Executive Order 12,871. See supra note 13. He concurs with the resulting decision to return to the status quo ante, however.


Footnote # 16 for 55 FLRA No. 147 - Authority's Decision

   To the extent the Respondent's "mutual delay" argument could be viewed as a claim that the Union waived its bargaining rights, we note as stated above, that the Agency does not except to the Judge's finding that the Union did not waive its rights in this case.


Footnote # 17 for 55 FLRA No. 147 - Authority's Decision

   With respect to the Respondent's APA claim, we note that section 706(2)(A) applies to judicial review of an "agency action" made reviewable by Statute. See 5 U.S.C. § 704. A judge's order is not itself judicially reviewable, and therefore not subject to section 706(2)(A) as