U.S. Department of Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, AFL-CIO

[ v55 p892 ]

55 FLRA No. 151

U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL BORDER PATROL
COUNCIL, AFL-CIO
(Charging Party)

WA-CA-50048

_____

DECISION

September 29, 1999

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

I.     Statement of the Case

      This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by both the General Counsel and the Respondent. The General Counsel and the Respondent filed oppositions to the other party's exceptions. The Charging Party also filed an opposition to the Respondent's exceptions and to certain portions of the General Counsel's exceptions.

      The complaint alleges that Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to bargain pursuant to Executive Order 12,871 over the substance of its policy concerning the use of non-deadly force by Border Patrol agents and criminal investigators. The complaint also alleges that Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain over the impact and implementation of that policy.

      The Judge found that the Respondent was not obligated to bargain pursuant to Executive Order 12,871 and, therefore, did not violate the Statute by failing to bargain over the substance of its non-deadly force policy. The Judge found, however, that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain over the impact and implementation of that policy, and concluded that a status quo ante remedy was appropriate.

      The Respondent excepts on eight grounds to the Judge's conclusion that it violated section 7116(a)(1) and (5) of the Statute by failing to bargain with the Charging Party over the impact and implementation of the Respondent's non-deadly force policy. These exceptions are addressed in sections III-VII of this decision. [n2]  The Respondent also excepts to the remedy for this violation recommended by the Judge. We address this exception in section IX.

      The General Counsel excepts to the Judge's conclusion that the Respondent is not obligated to bargain over section 7106(b)(1) matters. This exception is addressed in section VIII of this decision.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended order to the extent consistent with this decision. In particular, we find the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain over the impact and implementation of its non-deadly force policy, and conclude that a status quo ante remedy is appropriate. In addition, we find that the Respondent did not violate the Statute by failing to bargain over the substance of that policy, and dismiss this portion of the complaint.

II.     Background and Judge's Decision

A.     Background

      The facts are fully set forth in the Judge's decision, and only briefly summarized here.

      This dispute arose following the Respondent's decision to implement a policy concerning the use of non-deadly force by Border Patrol agents and criminal investigators. According to the Judge, the non-deadly force policy was a modification and expansion of the Respondent's side-handle baton policy, disputes over [ v55 p893 ] which were addressed by the Authority in U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and American Federation of Government Employees, National Border Patrol Council, AFL-CIO, 55 FLRA 93 (1999).

      The Charging Party represents a nation-wide unit that includes employees covered by both the side-handle baton policy and the non-deadly force policy, as well as one category of employees, Special Agents, who are covered by the non-deadly force policy only. The Respondent notified the Charging Party of the non-deadly force policy in November 1993. The Charging Party responded with a letter containing "comments, concerns, questions, and proposals," as well as a request to bargain over the decision and a request that the proposed policy be held in abeyance, pending the completion of negotiations. Decision at 3-4.

      The Respondent did not respond to the Charging Party's letter requesting to bargain. The next communication from the Respondent to the Charging Party was a May 1994 letter informing the Charging Party that (1) the non-deadly force policy was already in effect for certain classes of employees that were covered by the side-handle baton policy, (2) the Respondent was "immediately implementing" the policy for Special Agents not covered by the side-handle baton policy, (3) the implementation of the policy was "necessary to the functioning of the agency," and (4) implementation was "without prejudice to the right of the Union to enter into negotiations over [the] application of this policy to" Special Agents. Id. at 4.

      The General Counsel issued a complaint alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over a section 7106(b)(1) matter pursuant to Executive Order 12,871, and by refusing to bargain over the impact and implementation of the policy change.

B.     Judge's Decision

      The Judge found that the Respondent did not dispute "that it implemented the non-deadly force policy or that, as a general proposition, the subject matter of the policy included conditions of employment affecting bargaining unit employees." [n3]  Id. at 5. The Judge also found that the policy involved the technology, methods and means of performing work, a subject that would "ordinarily" require notification to the exclusive representative and the opportunity to negotiate over the impact and implementation of the policy. Id. The Judge analyzed the Respondent's defenses that it was not required to engage in such bargaining, as follows.

      First, the Judge rejected the Respondent's claim that its non-deadly force policy does not concern a condition of employment within the jurisdiction of the Authority because the policy was implemented in response to the Immigration Act of 1990, 8 U.S.C. § 1357 (the Immigration Act). [n4]  The Judge noted that:

Respondent does not identify any particular language in [the Immigration Act] that carves this area of agency activity outside of the Authority's jurisdiction. Rather, [the Respondent] relies on the general policies asserted to be implicit in [the Immigration Act] and its legislative history.

Id. at 6. The Judge concluded that even if the Immigration Act renders the substance of the policy outside the duty to bargain, the Immigration Act does not render the impact and implementation of the policy outside the duty to bargain.

      Second, the Judge rejected the Respondent's argument that it had no duty to bargain over the impact and implementation of the policy because the Charging Party submitted proposals that were outside the duty to bargain. The Judge found that, regardless of the negotiability of the particular proposals offered by the Charging Party, the Respondent violated the Statute because it "neither offered the opportunity to negotiate nor invited [ v55 p894 ] proposals." Id. at 9. The Judge held that an agency cannot rely on the nonnegotiability of a union's proposals to justify its refusal to bargain where it has refused to bargain for other reasons and has not informed the union that it considers the proposals to be outside the scope of bargaining. Id. at 7 (citing Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 25 FLRA 541, 545, 555 (1987) (Wright-Patterson AFB). The Judge rejected, in this regard, the Respondent's reliance on U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 995 F.2d 46 (5th Cir. 1993)(INS-II). According to the Judge, INS-II is "inapplicable because, in that case, the agency promptly asserted its contention of nonnegotiability and because the court concluded that the changes management made, not merely the union's specific proposals, were nonnegotiable." Decision at 9 n.4

      Third, the Judge rejected the Respondent's argument that it did not have an obligation to bargain over matters concerning the agency's "core" management rights, its mission and internal security. The Judge explained that:

Determinations of an agency's mission and of its internal security practices are simply examples of the management rights accorded by section 7106(a) of the Statute. They occupy no exceptional status with respect to their being subject to subsection (b) of section 7106, which subsection has been interpreted to require [impact and implementation] bargaining.

Id. at 9-10. Additionally, the Judge rejected the Respondent's assertion that bargaining over section 7106(b) matters does not affect its right to implement a management rights decision, holding that the Authority requires the maintenance of the status quo pending the outcome of bargaining. See id. at 10.

      Fourth, the Judge rejected the Respondent's argument that the management rights clause in the parties' expired collective bargaining agreement, which was executed in 1976 and was based on Executive Order 11,491, permitted "unilateral implementation of the non-deadly force policy[.]" Id. at 10. He held that the provision did not relieve the Respondent of its obligation to bargain under the Statute. See id.

      Fifth, the Judge rejected the Respondent's assertion that the policy change was "necessary for the functioning of the agency." Id. at 11 (quoting Respondent's Brief to the Judge at 24-27). In this regard, the Judge rejected the argument that in order to prove necessity an agency must demonstrate only a rational basis for the policy. Additionally, the Judge stated that the Respondent's 7-month delay in implementing the policy indicates that the Respondent would not have been harmed by any delay in implementation that might have resulted from bargaining with the Charging Party over impact and implementation.

      Having rejected each of the Respondent's defenses, the Judge concluded that the Respondent violated the Statute by failing to bargain over the impact and implementation of its policy change. The Judge also concluded that the Respondent was not obligated by Executive Order 12,871 to bargain over the substance of the changes to the non-deadly force policy. The Judge reasoned that Executive Order 12,871 does not constitute an election to bargain and that, by the terms of the Order, "the Authority, among others, lacks jurisdiction to enforce the duty to negotiate over section 7106(b)(1) subjects[.]" Decision at 12-14.

      In addressing the appropriate remedy, the Judge considered the five factors set forth in Federal Correctional Institution, 8 FLRA 604, 606 (1982)(FCI), and recommended that the Authority order the Respondent to restore the status quo before the implementation of the policy. [n5]  The Judge found, with regard to the first FCI factor, that the Charging Party was given notice of the change, but was not "invited to negotiate." Id. at 14. With regard to the second and third factors, respectively, the Judge found that the Charging Party had requested to negotiate, and that the Respondent's failure to negotiate was willful. With respect to the fourth factor -- the nature and extent of the impact on employees -- the Judge found that the new requirements had a "considerable potentiality for disciplinary action." Decision at 14. Finally, with respect to the fifth factor -- the effect of a status quo remedy on the efficiency of the agency -- the Judge found that the recission of the deadly force policy would not be disruptive to the agency, because of the "lack of a credible worst-case scenario." Id. at 15. He found that the Respondent's arguments, that a return to the status quo would subject the Respondent to liability and that a status quo remedy would result in a lack of guidelines, were undermined by the Respondent's own long delay in implementing the policy. [ v55 p895 ]

      The Judge further recommended that the Authority order the Respondent to rescind the non-deadly force policy to the extent it applies to employees represented by the Charging Party and to "notify and, on request bargain with [the Charging Party] over the impact and implementation of any new or revised policies on the use of non-deadly force." Id. at 16.

III.     The Judge Properly Held That the Non-Deadly Force Policy Concerns Conditions of Employment Under the Statute

A.     Positions of the Parties

1.     Respondent's Exception

      The Respondent asserts that the Authority lacks "subject matter jurisdiction" over this complaint because the non-deadly force policy does not concern "conditions of employment." Respondent's Exceptions (Resp. Exceptions) at 3.

      The Respondent argues that the policy does not concern a condition of employment on three grounds. First, the Respondent, citing U.S. Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) (Customs Service), asserts that the policy is not a condition of employment because it is "intertwined with enforcement of important public policies or functions that are peculiarly governmental; policies not intended to regulate conditions of employment[.]" Id. at 3.

      Second, the Respondent asserts that it is not obligated to bargain over its non-deadly force policy because the policy concerns "the implementation of public policies that flow from legislative acts[.]" Id. at 4. The Respondent distinguishes these policies from the "exercise of a management right," which, it asserts, triggers the obligation to bargain over the impact and implementation of management decisions. Id.

      Finally, Respondent asserts that its non-deadly force policy is "specifically provided for by law" within the meaning of 5 U.S.C. § 7103(a)(14)(C). Resp. Exceptions at 3, 29-30. The Respondent claims that its policy is "specifically provided for" by the Immigration Act and the Fourth Amendment of the Constitution. With respect to the former, according to the Respondent, "by specifically making the circumstances under which such force can be used the business of the Attorney General . . . Congress removed from the scheme of 'conditions of employment' all matters deriving from the [Respondent's] congressionally delegated authority to use force[.]" Id. at 5-6. The Respondent also argues that Congress intended that it have the discretion to determine "what the law means" and that the Authority "exceeds its writ" by requiring it to negotiate over this matter. Id. at 6 (citing General Services Administration v. FLRA, 86 F.3d 1185 (D.C. Cir. 1996) (GSA)). With respect to the Fourth Amendment, the Respondent asserts that it is not obligated to negotiate concerning the exercise of such powers, which are "within the constraints of the Fourth Amendment[.]" Id. at 4.

2.     General Counsel's Opposition

      The General Counsel asserts that the non-deadly force policy was not dictated by the Immigration Act or the Fourth Amendment. General Counsel Opposition (GC Opposition) at 5. According to the General Counsel, the Respondent was granted the discretion to implement its policy by the Immigration Act, and this discretion does not preclude bargaining over the policy.

      The General Counsel also argues that the Respondent's claim that its non-deadly force policy does not affect employees' conditions of employment is not supported by Customs Service. GC Opposition at 2-3. The General Counsel argues that the obligation to bargain over the impact and implementation of changes affecting conditions of employment applies to all policies.

3.     Charging Party's Opposition

      The Charging Party asserts that the Respondent's non-deadly force policy is within the statutory definition of "conditions of employment," because the policy is established by "rule, regulation, or otherwise" and is not "specifically provided for by Federal statute[.]" Charging Party Opposition at 2. According to the Charging Party, "[t]he statutory definition of 'conditions of employment' contained in 5 U.S.C. 7103(a)(14) . . . does not differentiate between policies or laws which intentionally affect working conditions and those which unintentionally affect working conditions." Id. at 3.

B.     Analysis and Conclusions

      The Respondent raises two types of objections based on the theory that its non-deadly force policy does not concern "conditions of employment" under the Statute. First, the Respondent raises a threshold jurisdictional issue -- whether the Authority has "subject matter jurisdiction" over this complaint. Second, the Respondent asserts substantive reasons why its policy does not concern conditions of employment under section 7103(a)(14) of the Statute. In such situations, the Authority first addresses the jurisdictional issues and then the substantive issues raised by a party's exceptions. See 305th Mobility Wing, McGuire Air Force Base, New Jersey and American Federation of Govern- [ v55 p896 ] ment Employees, Local 1778, 54 FLRA 1243, 1247-48 (1998) (McGuire AFB).

1.      The Authority Has Subject Matter Jurisdiction Over This Case

      The Authority has previously considered and rejected the Respondent's argument that subject matter jurisdiction under the Statute exists only if the challenged action --here, the Respondent's non-deadly force policy -- affects "conditions of employment." Resp. Exceptions at 3. In McGuire AFB, 54 FLRA at 1247-48, the Authority -- extending its reasoning in American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1490-93 (1997) (El Reno) -- held that, in unfair labor practice cases, the Authority has jurisdiction to determine whether a particular matter falls within the statutory definition of the term "conditions of employment."

      In support of its jurisdictional argument, the Respondent relies on Customs Service, 43 F.3d 682, asserting that the Authority does not have subject matter jurisdiction over policies that are not intended to regulate "conditions of employment" as defined in section 7103(a)(14) of the Statute. In El Reno, the Authority rejected a similar jurisdictional argument and explicitly refused to extend the court's reasoning in Customs Service to an allegation in a negotiability appeal that a proposed matter did not affect "conditions of employment." The Authority held that Customs Service, which considered the definition of a grievance set forth in section 7103(a)(9)(ii), applied only to exceptions to an arbitration award, not a negotiability appeal. As set forth above, in McGuire AFB, the Authority reaffirmed that distinction and extended that reasoning to unfair labor practices cases.

      Based on the foregoing, and as the Respondent has not established any reason for the Authority to reconsider McGuire AFB, 54 FLRA 1243, we find that the Authority has subject matter jurisdiction over this complaint.

2.     The Non-Deadly Force Policy Concerns Conditions of Employment

      Turning to the Respondent's substantive arguments, the Respondent claims that its non-deadly force policy is outside the duty to bargain because it does not concern "conditions of employment" under section 7103(a)(14) of the Statute. Specifically, the Respondent claims that its policy is excluded from the definition of conditions of employment under the court's construction set forth in Customs Service, and because the policy is an "important public policy" and is specifically provided for by law.

a.     Customs Service Does Not Dictate That Respondent's Non-Deadly Force Policy Is Outside the Definition of Conditions of Employment

      The Respondent asserts that the Authority should recognize a limitation on collective bargaining that is similar to the limitation on grievances found by the court in Customs Service. In Customs Service, the U.S. Court of Appeals for the District of Columbia Circuit held that an employee could not pursue a grievance alleging a violation of 19 U.S.C. § 1448(a) -- a section of the federal customs laws -- because that statute was not "fashioned for the purpose of regulating the working conditions of employees." 43 F.3d at 691. In reaching its conclusion, the court interpreted section 7103(a)(9)(C)(ii) of the Statute, which defines the term "grievance" as including a claimed misapplication of a "law, rule, or regulation affecting conditions of employment." The court reasoned that the phrase "law . . . affecting conditions of employment" must "impose a real limitation on an arbitrator's authority[,]" by creating a "category" of laws not subject to the grievance procedure. Id. at 689.

      The Custom Service court was construing section 7103(a)(9) of the Statute, not section 7103(a)(14), which is the provision at issue here. Both sections of the Statute contain the term "conditions of employment." However, section 7103(a)(14) -- unlike section 7103(a)(9) -- expressly defines the term and explicitly excludes from that definition matters "to the extent such matters are specifically provided for by Federal statute." Under section 7103(a)(9), the court found it necessary to determine what laws "affect conditions of employment" because that section did not specify what laws fall within that phrase. Under section 7103(a)(14), by contrast, Congress has expressly provided that all laws are excepted from the definition, to the extent the matter proposed to be bargained is "specifically provided for" in the law.

      The court did not examine (or even cite) the definition of "conditions of employment" in section 7103(a)(14). It did, however, explicitly state that the limitation its construction of section 7103(a)(9) imposes on grievances does not carry over to the scope of collective bargaining. The court in Customs Service distinguished the role of external law in grievance arbitration from the role of external law in negotiations. 43 F.3d at 690. The court stated that an "applicable law" limiting [ v55 p897 ] management rights in bargaining under section 7106(a), "could easily have a much broader subject matter scope" than a "law . . . affecting conditions of employment" in grievance arbitration. Id. The court emphasized that bargaining over statutes that are not "directed to employee working conditions" does not raise the same concerns as the interpretation of laws in the arbitration and review of grievances, because disputes over bargaining issues "will almost always arise in a negotiability case or unfair labor practice proceedings, and . . . be brought to a federal court of appeals." Id.

      Based on the foregoing, we reject the Respondent's argument that the court's ruling in Customs Service requires our finding its non-deadly force policy to be outside the duty to bargain because it does not concern a condition of employment. See American Federation of Government Employees, Local 1917 and U.S. Department of Justice, Immigration and Naturalization Service, New York, New York, 55 FLRA 228, 231 (1999) (INS, New York) (rejecting the agency's reliance on Customs Service because that case did not concern whether a proposal constituted a matter pertaining to conditions of employment within the meaning of section 7103(a)(14)). The proper standard for resolving the Respondent's claim -- that its policy is not a condition of employment because it was created pursuant to the Immigration Act -- is whether its policy is specifically provided for by law, which we address and apply below.

b.     The Statute Does Not Exclude "Important Public Policies" from Bargaining

      The Respondent asserts that it is not obligated to bargain over its non-deadly force policy because the policy is "intertwined with enforcement of important public policies[,]" and concerns "the implementation of public policies that flow from legislative acts, as distinguished from management decisions." Resp. Exceptions at 3, 4. The Respondent asserts that management decisions resulting from the "exercise of management rights," trigger the obligation to bargain over their impact and implementation, while decisions resulting from important public policies do not. Id. In support of its assertion, the Respondent relies on Custom Service, 42 F.3d 682.

      For the reasons set forth above, we reject the Respondent's reliance on Customs Service. We also reject the Respondent's assertion that management decisions resulting from important public policies do not trigger the obligation to bargain. The Statute establishes the parameters of bargaining over management rights in section 7106, and there is no basis in the Statute for creating different parameters than those set forth therein. As the Judge noted in his decision, Respondent's argument is undermined by the fact that the policies at issue concern the Respondent's mission and its internal security practices and as such, fit easily within the protection of management rights in the Statute. See Decision at 9. The Respondent is correct that its policy on the use of force by officers against citizens is a "quintessential public polic[y]" matter, dictated by the Constitution and law, and not subject to bargaining. Resp. Exceptions at 6 (emphasis in original). However, if these public policies result in "personnel policies, practices, and matters . . . affecting working conditions," then they are subject to limited negotiation of their impact and implementation. See INS, New York, 55 FLRA at 231 (rejecting agency's argument that proposals concerning equipment customs inspectors use are excluded from the definition of "conditions of employment" because decisions regarding such equipment implicate matters of "public policy").

      Based on the foregoing, we reject the Respondent's exception that its non-deadly force policy does not concern conditions of employment because it concerns the implementation of "important public policies."

c.      The Non-Deadly Force Policy Is Not Specifically Provided for by Law

      Section 7103(a)(14)(C) of the Statute excludes from the definition of "conditions of employment," and thus from the duty to bargain, matters that are "specifically provided for by Federal statute." Mere reference to a matter in a statute is not sufficient to exclude it from the definition of conditions of employment. In this regard, the Authority has held that a matter is "specifically provided for," within the meaning of section 7103(a)(14)(C), only to the extent that the governing statute leaves no discretion to the agency. See International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135, et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 681-85 (1995)(BEP), aff'd mem. sub nom. Bureau of Engraving and Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996). When a statute provides an agency with discretion over a matter, it is not excepted from the definition of conditions of employment, to the extent of the agency's discretion. Id. at 682.

      In arguing that its non-deadly force policy is specifically provided for by the Immigration Act, the Respondent relies on 8 U.S.C. § 1357(a), which requires the Attorney General to publish regulations prescribing "the circumstances under which . . . force [including deadly force] may be used . . . ." See supra note 4. [ v55 p898 ] Although this provision specifically requires the Attorney General to promulgate regulations setting forth a policy on this matter, and sets forth the points that the regulations must address, there is nothing in section 1357(a) that specifies the actual policy to be established, or limits the discretion of the Attorney General to implement any particular policy. See INS, New York, 55 FLRA at 232. Because the statutory provision does not specify the policy, it is not "specifically provided" for by the law. BEP, 50 FLRA at 683 (holding that only the specific matter provided for is excepted from definition). See also INS, New York, 55 FLRA at 232. Rather, section 1357(a) leaves the content of the policy to the discretion of the Attorney General.

      The Respondent also asserts that the "contours of agency policy regarding use of force" are dictated by the Fourth Amendment of the Constitution. Resp. Exceptions at 6. However, the Respondent has not pointed to any specific limitation affecting the Respondent's non-deadly force. In short, there is no basis for finding that the content of the Respondent's non-deadly force policy is "specifically provided for" by the Fourth Amendment.

      Finally, the Respondent asserts that "[a]gencies faced with issues of interpreting what Congress intended--what the law means--are simply not required to negotiate over 'what the law means.'" Id. (citing GSA, 86 F.3d 1185). Although this statement is correct, it does not necessarily follow that an agency's right to determine what the law means insulates it from impact and implementation bargaining. See General Services Administration, National Capital Region, Federal Protective Service Division, Washington, D.C. and American Federation of Government Employees, Local 1733, AFL-CIO, 52 FLRA 563, 566 (1996) (GSA II) (even though the agency was privileged to rescind a particular policy without bargaining over that decision because the policy was illegal, the Agency did have an obligation to bargain over the impact and implementation of it recission). Accordingly, we conclude, consistent with BEP, 50 FLRA 677, and GSA II, 52 FLRA 563, that the Respondent's right to determine the legal requirements of its non-deadly force policy does not eliminate its obligation to negotiate over those aspects of the policy over which it has discretion, including impact and implementation of its policy.

      Accordingly, we find that the Respondent has not established that its non-deadly force policy is specifically provided for by Federal law. Based on the foregoing, we reject Respondent's exception that its non-deadly force policy does not concern conditions of employment.

IV.     The Judge Properly Concluded That the Parties' Expired Collective Bargaining Agreement Did Not Permit the Respondent to Implement Its Non-Deadly Force Policy Without Bargaining over the Impact and Implementation

A.     Positions of the Parties

1.     Respondent's Exceptions

      The Respondent argues that it was not obligated to bargain with the Union over its non-deadly force policy, because its collective bargaining agreement with the Charging Party permitted it to implement this policy without bargaining. Resp. Exceptions at 7. In support, the Respondent cites Chicago & North Western Transportation Co. v. Railway Labor Executives' Association, 908 F.2d 144, 157 (7th Cir. 1990) (Chicago & North Western), for the proposition that "[w]hen it comes to management prerogatives, a labor contract permits that which it does not otherwise prohibit or restrict." Resp. Exceptions at 7. The Respondent maintains that the parties' expired agreement provides management with flexibility in exercising certain rights. [n6] 

2.     General Counsel's Opposition

      The General Counsel argues that the parties' agreement does not preclude negotiation because it is expired and because, in any event, the contract provides for negotiation of the type requested by the Charging Party in this case. GC Opposition at 6, incorporating GC Exceptions at 9-10. The General Counsel argues that the contract language relied on by the Respondent was incorporated in the agreement by requirement of Executive Order 11491, and that it does not limit the [ v55 p899 ] obligation to bargain under the Statute. Id. at 16 (citing American Federation of Government Employees, Local 217 and Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA 62, 65 (1986) (AFGE, Local 217)). The General Counsel also asserts that the Respondent's reliance on Chicago & North Western is misplaced because that decision concerns the Federal Railway Labor Act and because it conflicts with the Authority's holding in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, National Council of Social Security Administration, Field Office Locals, Council 220, 47 FLRA 1004 (1993) (Health and Human Services). GC Opposition at 7.

3.     Charging Party's Opposition

      The Charging Party argues that Chicago & North Western is not applicable because the parties in Chicago & North Western, unlike the Respondent in this case, "conceded the duty to bargain" over impact and implementation issues. Charging Party's Opposition at 3-4. Additionally, the Charging Party argues that the Respondent has utilized a definition of "status quo" that is inconsistent with Authority case law, and that the obligations of the Statute supersede the expired agreement's language that came from Executive Order 11,491. Id. at 4-7

B.     Analysis and Conclusions

      The Authority has previously determined, as a matter of law, that contract terms included in a contract pursuant to Executive Order 11,491 do not waive a party's bargaining rights under the Statute. See AFGE, Local 217, 21 FLRA at 65. Specifically, in AFGE, Local 217, the Authority rejected an agency claim -- identical to that raised by the Respondent here -- that bargaining was not required based on contract language derived from the Executive Order management rights clause.

      It is not apparent from the face of the provision relied on by the Respondent that the contract entitled Respondent to implement its non-deadly force policy without bargaining over its impact and implementation. However, even if it were apparent, the contract terms relied on by Respondent, which expired in 1978, are management rights provisions that parallel Executive Order 11,491, which preceded the Statute. See supra note 6. As such, based on AFGE, Local 217, we find that the Respondent's argument is without merit. In reaching that conclusion, we note that the Respondent does not address the applicability of this precedent and offers no basis for the Authority to revisit this issue. [n7] 

      Accordingly, without regard to whether the provision relied on by the Respondent applies or is even in effect, we find, based on our holding in AFGE, Local 217, 21 FLRA 62, that the parties' agreement did not permit the Respondent to implement its non-deadly force policy without bargaining.

V.     The Judge Properly Concluded That the Respondent Was Obligated to Bargain over the Impact and Implementation of its Non-Deadly Force Policy, Notwithstanding its Objection That the Charging Party Had Not Made Negotiable Proposals

A.     Positions of the Parties

1.     Respondent's Exceptions

      The Respondent makes two arguments in support of its claim that it did not have a duty to bargain over the impact and implementation of its policy because the Charging Party did not make negotiable proposals.

      First, Respondent asserts that the Judge erred in not requiring the General Counsel to demonstrate that the Union's proposals concerning the impact and implementation of the policy change were within the duty to bargain. The Respondent argues that establishing the negotiability of the proposals is part of the General Counsel's burden of proof. Resp. Exceptions at 11. In this connection, the Respondent asserts that the Judge erred in holding that INS-II, 995 F.2d 46, is inapplicable to this case. According to the Respondent, INS-II required the Judge to make negotiability determinations regarding the Charging Party's proposals. [ v55 p900 ]

      Second, Respondent asserts that it had no obligation "to declare the union's proposals nonnegotiable, and to provide the union with an opportunity to perfect its proposals before implementing the non-deadly force policy." Id. at 11. The Respondent argues that if the Union does not present the Agency with proposals that are within the duty to bargain, then management has no duty to bargain, and is not required to "notify the union of the status of its proposals." Id.

2.     General Counsel's Opposition

      The General Counsel responds that the proposal involving delaying implementation until bargaining was completed was within the duty to bargain. GC Opposition at 7. The General Counsel also argues that the Respondent failed to bargain in good faith concerning the policy change because the "Respondent never replied to the [Charging Party's] bargaining request or proposals before implementing the [p]olicy [change]." Id. Finally, the General Counsel argues that the Respondent has mistakenly relied on INS II, which, according to the General Counsel, held only "that a specific union proposal . . . was not negotiable[.]" Id. at 8.

3.     Charging Party's Opposition

      The Charging Party contends that the Respondent had an obligation to inform the Charging Party that, and why, it considered the Charging Party's proposals outside the duty to bargain, and that the Respondent should have given the Charging Party the opportunity to modify its proposals or file a negotiability appeal. The Charging Party also contends that INS-II "is distinguishable because [INS-II] was focused solely on section 7116(a)(6) of the Statute, and not on the parties' bargaining obligations and responsibilities under 7116(a)(5)." Charging Party's Opposition at 10. The Charging Party also distinguishes the cases on the grounds that the U.S. Court of Appeals for the Fifth Circuit in INS-II "did not consider, and made no rulings on, what constitutes bad faith bargaining, or whether an agency ought to let the union know if it regards the union's proposals as nonnegotiable." Id. at 11.

B.     Analysis and Conclusions

      It is long established that an agency "must meet its obligation to negotiate prior to making changes in established conditions of employment[.]" Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9, 11 (1981) (Scott Air Force Base). The Authority has held that this obligation includes "affording the exclusive representative notice of proposed changes and an opportunity to [bargain.]" Id. at 10-11. The Authority has also held that the obligation includes, "at a minimum, the requirement that a party respond to a bargaining request." Army and Air Force Exchange Service, McClellan Air Force Base Exchange, McClellan Air Force Base, California and American Federation of Government Employees, Local 1857, 35 FLRA 764, 769 (1990) (Army and Air Force Exchange).

      In this connection, the Authority has found that when a union requests bargaining and an agency does not respond to that request, the agency violates the duty to bargain, even where the union has not submitted specific proposals on the matter over which the union seeks to bargain. [n8]  See id.; U.S. Department of Health and Human Services, Security Administration, Baltimore, Maryland and Social Security Administration, Fitchburg, Massachusetts District Office, Fitchburg, Massachusetts, 36 FLRA 655, 669 (1990) (SSA, Fitchburg). Similarly, the Authority has refused to find that an agency has no bargaining obligation simply because the proposals submitted by a union were nonnegotiable. For example, in Wright-Patterson AFB, 25 FLRA at 545, 555, the Authority affirmed the Judge's finding that, under the circumstances of the case, the agency could not relieve itself of liability by asserting for the first time in the ULP proceeding that the union's proposals were nonnegotiable. [n9] 

      Without addressing this precedent, the Respondent argues that to establish that it has improperly failed to bargain, the General Counsel must prove that the Charging Party submitted negotiable proposals in response to the announced implementation of the policy. The Respondent relies on INS-II, 995 F.2d 46, in support of its claim, and excepts to the Judge's finding that INS-II is inapplicable to this case. We find that INS-II is distinguishable from this case. As noted by the Judge, the agency in INS-II, unlike the Respondent here, engaged in bargaining with the union (reaching agreement on some proposals), and asserted the nonnegotiability of other proposals as the reason for implementing the change. See INS-II, 995 F.2d at 48. In this case, the [ v55 p901 ] Respondent never responded to the Charging Party's proposals before implementing the policy. In addition, the Respondent did not assert the nonnegotiability of the Charging Party's proposals as the basis for implementing the change. Nothing in the court's decision establishes, or even addresses, a requirement to determine the negotiability of proposals in the circumstances of this case.

      The Respondent also relies on U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, AFL-CIO, 39 FLRA 258, 262-63 (1991) (HHS, Baltimore), where the Authority acknowledged that an agency may unilaterally implement a change in working conditions without violating the Statute where a union's proposals submitted in response to that change are nonnegotiable. However, this principle is not so broad as the Respondent claims. The principle applies in cases where "a union submits bargaining proposals and an agency refuses to bargain over them on the contention that they are nonnegotiable[.]" Id. See also, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651, 656 (1988) (Department of Health and Human Services). In that circumstance "the agency acts at its peril if it then implements the proposed change in conditions of employment[]" and the proposal is later determined to be negotiable. HHS, Baltimore, 39 FLRA at 263.

      Contrary to the Respondent's assertions, however, the principle -- that an agency may unilaterally implement a change without violating the Statute where a union's proposals are nonnegotiable -- does not establish that it is a necessary element of the General Counsel's burden proof in establishing a violation of the Statute that a union have submitted negotiable proposals. See, e.g., SSA, Fitchburg, 36 FLRA at 669 (finding it "not necessary" to determine the negotiability of the union's proposal because the agency did not respond to the union's request to bargain); U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and American Federation of Government Employees, Council 214, 36 FLRA 524, 531 (1990) (finding that without regard to the negotiability of the union's specific proposals, the totality of the circumstances established that the agency violated the Statute). Rather, it establishes circumstances in which an agency may assert as a defense to an alleged violation of the statutory duty to bargain, that the agency did not have an obligation to bargain because the specific proposals the union sought to bargain over were not negotiable. See HHS, Baltimore, 39 FLRA at 262-63. In particular, this principle does not, as asserted by the Respondent, provide a defense to a charge that the agency failed to respond at all to a request to bargain. See, e.g., The Adjunct General's Office, Puerto Rico Air National Guard and National Federation of Federal Employees, Local 1665, 3 FLRA 343, 345 (1980) (holding that the agency violated the Statute by failing to respond to a general request to bargain even though the specific proposals submitted by the union "clearly were not negotiable").

      Based on the foregoing, we reject the Respondent's claims, and conclude that finding that a union has submitted negotiable proposals is not a necessary element for finding that unilateral implementation violates the Statute. See Wright-Patterson AFB, 25 FLRA at 545, 555. [n10]  In addition, we conclude that the Respondent has an obligation under the Statute to respond to the Charging Party's request to bargain. See Army and Air Force Exchange, 35 FLRA at 769.

      In this case, it is undisputed that in response to the Respondent's notification that it intended to implement a new non-deadly force policy, the Charging Party sent the Respondent a letter "demanding to bargain concerning the proposed policy on the use of non-deadly force to the fullest extent permissible under law and Executive Order." Letter, President, National Border Patrol Council, AFGE to Director of Personnel, INS (December 9, 1993) at 3 (G.C. Exhibit 4). The letter contained the Charging Party's initial position concerning the policy, and specified that the "forgoing comments, concerns, questions, and proposal are not all-inclusive and are subject to revision and/or augmentation at any time prior to the completion of bargaining." Id. (emphasis added). It is also undisputed that the Respondent failed [ v55 p902 ] to respond at all to the request, making no assertions with regard to the negotiability of those proposals included in the request, and that 5 months later, the Respondent implemented the policy. In this regard, the Respondent asserted for the first time during the ULP proceeding that the Charging Party's proposals are nonnegotiable.

      We note that the Charging Party never even submitted proposals over the impact and implementation of the non-deadly force policy -- the matter over which the Respondent is obligated to bargain -- because the Respondent never provided the Charging Party with an opportunity to submit further proposals or bargain. In addition, we note that up until the hearing, the Respondent never declared that any of the Charging Party's proposals were nonnegotiable. In fact, even during the hearing, the Respondent asserted only that particular sections -- not all -- of the Charging Party's proposals were nonnegotiable. See Transcript at 14, 94-100.

      Under these circumstances, the principle that an agency may unilaterally implement a change in working conditions where a union's proposals submitted in response to that change are nonnegotiable does not apply. Thus, the Respondent cannot rely on the purported nonnegotiability of the Charging Party's proposals as a defense to its failure to bargain with the Charging Party over any aspect of the proposed change.

      Based on the foregoing, we find that the Judge did not err in rejecting the Respondent's reliance on INS-II, 995 F.2d 46. We also find that the Judge properly concluded that the General Counsel was not required to establish the negotiability of the Charging Party's proposals, and that the Respondent had an obligation to respond to the Union's request to bargain before implementing its non-deadly force policy.

VI.     The Judge Properly Concluded That the Respondent Was Obligated to Maintain the Status Quo While Bargaining over the Impact and Implementation of its Non-Deadly Force Policy

A.     Positions of the Parties

1.     Respondent's Exceptions

      The Respondent claims that although the status quo rule has a "long history," it has been held invalid in several cases and should be held invalid in this case because it would require Respondent to waive its statutory management rights. Resp. Exceptions at 15-16 (citing U.S. Customs Service v. FLRA, 854 F.2d 1414 (D.C. Cir. 1988) (Customs Service v. FLRA); United States Immigration and Naturalization Service v. FLRA, 834 F.2d 515 (5th Cir. 1987) (INS-I); United States Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984) (Department of Justice). According to the Respondent, the effect of the Judge's decision is that the Agency would have been prevented from "directing employees on how to lawfully apply the law of search and seizure." Resp. Exceptions at 17-18 (emphasis in the original). In this connection, the Respondent argues that requiring it to maintain the status quo would "allow `non-elected parties to exercise government control without governmental accountability.'" Id. at 19. Additionally, the Respondent argues that the Judge's finding that the Respondent was required to maintain the status quo conflicts with section 7101(b)'s "command" that the Authority "administer the Statute in a manner that preserves an effective and efficient INS[.]" Id. at 24.

2.     General Counsel's Opposition

      The General Counsel contends that Authority precedent requires an agency to give a union an opportunity to bargain before the agency implements a change in policy. It asserts that the case law relied on by the Respondent does not create an exception to this rule that would be relevant to this case.

3.     Charging Party's Opposition

      The Charging Party maintains that the Respondent's "theory" that it has no obligation to maintain the status quo, during negotiations over the impact and implementation of a matter involving management's rights is based on "the premise that [maintaining] the status quo pending the outcome of negotiations constitutes an impermissible delegation of a governmental function to private persons." Charging Party's Opposition at 11. According to the Charging Party, Respondent cannot succeed on this "theory" because it would require finding that "the Statute itself is unconstitutional, a theory which does not withstand scrutiny." Id.

B.     Analysis and Conclusions

      As set forth supra, it is well established that an agency "must meet its obligation to negotiate prior to making changes in established conditions of employment[.]" Scott Air Force Base, 5 FLRA at 11. See also U.S. States Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California and National Border Patrol Council, American Federation of Government Employees, Local 1613, AFL-CIO, 43 FLRA 642, 652-53 (INS, San Diego). This rule parallels the practice in the private sector under the National Labor Relations Act, where employers are also required to maintain working conditions during the course of bargaining. See National [ v55 p903 ] Labor Relations Board v. Katz, 369 U.S. 736 (1962). See generally Hardin, Developing Labor Law, 596-601 (3d Ed. 1995).

      The Respondent asserts that the status quo rule has been "held invalid as applied on numerous occasions[,]" and should be found invalid in this case. Resp. Exceptions at 15-16 (citing Customs Service v. FLRA, INS-I, and Department of Justice). However, in each of the cases relied on by the Respondent, the agency had no underlying obligation to bargain and, therefore, the court held that a change in status quo without bargaining was permitted. [n11]  The cases do not undercut the long standing rule that an agency must maintain the status quo where it does have an obligation to bargain. None of these cases addressed an agency's obligation to maintain the status quo pending the outcome of bargaining that it is required to engage in under the Statute. As such, they provide no support for the Respondent's argument that this basic doctrine has been undermined.

      Finally the Respondent asserts that requiring it to maintain the status quo conflicts with the "command" in section 7101(b) that the Authority "administer the Statute in a manner that preserves an effective and efficient INS[.]" Resp. Exceptions at 24. In Department of Treasury, Bureau of Alcohol, Tobacco and Firearms and National Treasury Employees Union, 18 FLRA 466, 469 (1985) (Department of Treasury), the Authority specifically rejected this argument, finding that the status quo rule "is consistent with and furthers the intent of Congress set forth in section 7101(b) of the Statute that the provisions of the Statute 'be interpreted in a manner consistent with the requirement of an effective and efficient Government.'" See also Scott Air Force Base, 5 FLRA at 11 (finding status quo rule supported by finding in section 7101(a) of the Statute that "labor organizations and collective bargaining in the civil service are in the public interest"). As the Respondent has not asserted any basis for the Authority to reverse its finding in Department of Treasury that maintaining the status quo is consistent with the Statute, we reject the Respondent's claim.

      Based on the foregoing, we conclude that the Judge did not err in determining that the Respondent was statutorily required to maintain the status quo while negotiating the impact and implementation of the non-deadly force policy.

VII.     The Judge Applied the Proper Legal Standard to Respondent's Claim That it Was Necessary for it to Implement its Non-Deadly Force Policy Without Bargaining

A.     Positions of the Parties

1.     Respondent's Exceptions

      The Respondent asserts that the Judge should have applied a "deferential," rather than a "demanding" standard "to the Agency's determination that a non-deadly force policy was necessary to the functioning of the agency." Resp. Exceptions at 24. According to the Respondent, the Authority deferred to the agency's determination that a change in conditions of employment was necessary in Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Laredo, Texas and American Federation of Government Employees, National Border Patrol Council, AFL-CIO, Local 2455, 23 FLRA 90 (1986) (INS Border Patrol, Laredo). Further, the Respondent argues that such deference to agency decisions is consistent with the general principle that the Authority should defer to an agency's interpretation of its implementing statute. Resp. Exceptions at 27 (citing GSA, 86 F.3d 1185).

2.     General Counsel's Opposition

      The General Counsel argues that the Judge properly concluded that the Respondent failed to demonstrate that implementing its non-deadly force policy was necessary to the functioning of the Agency. According to the General Counsel, the testimony at the hearing did not establish that the new policy was necessary to the Respondent's mission. GC Exceptions at 10-11. In particular, the General Counsel argues that the discretion afforded the Respondent in the Immigration Act to implement a policy, and its delay in doing so, indicate [ v55 p904 ] that it was not necessary to implement the policy prior to fulfilling its bargaining obligation.

3.     Charging Party's Opposition

      The Charging Party argues that the Respondent has overstated the significance of INS Border Patrol, Laredo, 23 FLRA 90. The Charging Party asserts that the agency in that case had established that implementation was necessary to perform the agency's mission, and that, as a result, the decision does not represent a departure from precedent. The Charging Party also notes that decisions issued subsequent to INS, Border Patrol, Laredo indicate that the standard has not changed. Charging Party's Opposition at 13-14.

B.     Analysis and Conclusions

      The Authority's test to determine whether implementation is necessary for the functioning of the agency is long-standing. "Necessary functioning" is a defense to an alleged unfair labor practice based on a unilateral implementation. See Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II and American Federation of Government Employees, AFL-CIO, 35 FLRA 940, 950 (1990) (HHS). A party asserting this defense must establish, with evidence, that its actions were in fact consistent with the necessary functioning of the agency, such that a delay in implementation would have impeded the agency's ability to effectively and efficiently carry out its mission. See id.; Department of Treasury, 18 FLRA at 469 n.7.

      Here, the Agency does not provide any evidence to support its assertion that a delay in implementation of its non-deadly force policy would have impeded its ability to effectively and efficiently carry out its mission. [n12]  Instead, the Respondent sets forth numerous policy arguments, which were also made to the Judge, regarding the Immigration Act and the use of force for immigration officers. Although, as found by the Judge, the Respondent's assertions show a need for the new policy, the arguments do not demonstrate how delaying implementation of the policy until the parties had an opportunity to bargain over the policy's impact and implementation would have prevented the Respondent from effectively and efficiently carrying out its mission. [n13]  Decision at 11.

      With respect to its arguments that unilateral implementation of the policy was necessary to the functioning of the Agency, the Respondent's arguments are misplaced. The Respondent's judgment in adopting its policy on the use of non-deadly force is not at issue here. Rather, the issue is the timing of the implementation of the non-deadly force policy -- specifically, whether it was necessary to implement the policy choice before completing its obligation to bargain.

      In this regard, the Respondent has provided no argument, and pointed to no evidence, supporting its defense that it was necessary to implement the non-deadly force policy when it did. As there is no evidence that a delay in implementing the policy would have impeded the Respondent's ability to effectively and efficiently carry out its mission, the resolution of this issue does not turn on whether the review standard is "deferential" or "demanding." Even if we were to resolve the issue based on weighing the evidence presented by the Respondent against a "deferential" standard -- as the Respondent seeks -- it would not prevail. For the Respondent to prevail here, we would have to permit an unsupported assertion of necessity to overcome the bargaining rights afforded the Charging Party under the Statute. Such a standard would go well beyond a "deferential" standard for reviewing an agency's evidence of necessity. We find that the Respondent has failed to establish that it was "necessary" for it to implement changes in its non-deadly force policy prior to satisfying its bargaining obligation.

      Accordingly, we conclude that the Judge properly rejected the Respondent's defense that unilateral implementation of its non-deadly force policy was consistent with the necessary functioning of the Agency. [ v55 p905 ]

VIII.     The Judge Properly Refused to Order the Respondent to Bargain over Section 7106(b)(1) Matters

A.     Positions of the Parties

1.     General Counsel's Exceptions

      The General Counsel argues that the Judge erred in concluding that Executive Order 12,871 does not constitute an election to bargain over 7106(b)(1) matters, and that the Authority does not have the jurisdiction to order bargaining over matters set forth in section 7106(b)(1). The General Counsel further argues that the parties expired contract, and the Immigration Act, did not preclude bargaining over section 7106(b)(1) matters. Finally, the General Counsel argues that the Judge erred in failing to order the Respondent to bargain over section 7106(b)(1) matters. See GC Exceptions at 7.

2.     Respondent's Opposition

      The Respondent makes three related arguments against the General Counsel's claim that the Executive Order created an obligation on the part of the Respondent to bargain over section 7106(b)(1) matters. First, the Respondent asserts that the Judge "lacked subject matter jurisdiction to order Respondent to bargain over matters set forth in section 7106(b)(1)[.]" Respondent's Opposition at 2. Second, the Respondent argues that "[i]f the President elected, on behalf of the [Agency], to bargain over subjects set forth in section 7106(b)(1) of the Statute, such election does not confer standing on the [General Counsel] to enforce [it]." Id. at 17. Third, the Respondent asserts that it "has no judicially enforceable statutory duty to bargain with the [Union] over matters described in section 7106(b)(1)[.]" Id. at 19.

B.     Analysis and Conclusions

      The General Counsel's argument that the Judge erred in not finding and enforcing the obligation allegedly created by Executive Order 12,871 to bargain over section 7106(b)(1) matters was rejected by the Authority in U.S. Department of Commerce, Patent and Trademark Office, 54 FLRA 360 (1998) (Department of Commerce II)(Member Wasserman, dissenting), aff'd sub nom. National Association of Government Employees, Inc. v. FLRA, 179 F.3d 946 (D.C. Cir. 1999) (NAGE v. FLRA). Specifically, the Authority determined that section 2(d) of Executive Order 12,871 does not constitute an election under the Statute to bargain over section 7106(b)(1) subjects. The Authority explained that section 2(d) of the Executive Order "unambiguously states [that it is] a direction by the President to agency officials to engage in bargaining over the subjects defined in the Statute." Department of Commerce II, 54 FLRA at 387 (emphasis added). The Authority found that the fact that the nature of this direction is mandatory does not render it a statutory election enforceable in an unfair labor practice proceeding. On appeal, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the Authority's decision. As relevant here, the court held "that section 2(d) of [Executive Order] 12,871 did not effect an election under 5 U.S.C. § 7106(b)(1)." NAGE v. FLRA, 179 F.3d at 947.

      For the reasons set forth in Department of Commerce II and NAGE v. FLRA, we find the Respondent was not required to bargain with the Union over the substance of its non-deadly force policy. Given this, we reject the General Counsel's argument that a status quo ante remedy was required because the Respondent failed to bargain over section 7106(b)(1) matters. We also find that it is not necessary to resolve the General Counsel's arguments that the parties' contract and the Immigration Act did not preclude bargaining over section 7106(b)(1) matters. We conclude that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by its refusal to negotiate the substance of its non-deadly force policy. [n14]  [ v55 p906 ]

IX.     The Judge Properly Recommended a Status Quo Ante Remedy

A.     Positions of the Parties

1.     Respondent's Exceptions

      The Respondent excepts to the status quo ante remedy recommended by the Judge on the ground that the Judge misapplied the standard for determining whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the Agency's operations -- the fifth factor set forth in FCI, 8 FLRA at 606. See supra note 5. The Respondent argues that the limited nature of the bargaining involved militates against requiring it to rescind the policy. It also argues, without elaboration, that the important statutory issues at stake, and the risk of Constitutional violations in the event it has no policy on this matter, indicate that a status quo ante remedy is inappropriate and that it would be "extremely disruptive" to the Respondent's operation. Resp. Exceptions at 29.

2.     General Counsel's Opposition

      The General Counsel argues that "[t]he likelihood that any of Respondent's employees will [act] in contravention of the Constitution is purely speculative in light of the record in this case. GC Opposition at 11. The General Counsel also asserts that a status quo ante remedy is appropriate because the Respondent willfully did not bargain at the request of the Charging Party and because significant new duties were imposed on unit employees by the policy.

3.     Charging Party's Opposition

      The Charging Party argues that the Respondent has failed to demonstrate with "specific examples, how, and to what degree" a status quo ante remedy would disrupt the effective and efficient functioning of the Agency. Charging Party's Opposition at 15. According to the Charging Party, the Respondent's "bald assertion is insufficient to demonstrate any disruptions of Respondent's operations." Id.

B.     Analysis and Conclusions

      Where an agency has failed to bargain over the impact and implementation of a management decision, the Authority evaluates the appropriateness of a status quo ante remedy using the factors set forth in FCI, 8 FLRA at 606. In this regard, the Court of Appeals for the District of Columbia Circuit has stated that "where 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 . . . should restore the status quo ante in a remedial order[, rather than issue a remedy that would not make the employees whole.]" National Treasury Employees Union v. FLRA, 910 F.2d 964, 969 (D.C. Cir. 1990) (NTEU v. FLRA). The court noted that where the Authority does not order a status quo ante remedy in such cases, the Authority "bear[s] the burden" of explaining why it did not make employees whole. Id.

      Consistent with the foregoing, the Authority requires that a conclusion that a status quo ante remedy would be disruptive to the operations of an agency be "based on record evidence." Army and Air Force Exchange Service, Waco Distribution Center, Waco Texas and American Federation of Government Employees, Local 4042, 53 FLRA 749, 763 (1997). See, e.g., U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, General Committee, 50 FLRA 296, 299 (1995) (finding that the record evidence sufficiently established that the efficiency of respondent's operations would be affected where all performance appraisals issued under the revised standards and all related personnel actions would have to be rescinded). In the absence of record evidence establishing that a status quo ante remedy is not appropriate, the Authority "should" restore the status quo. NTEU v. FLRA, 910 F.2d at 969. In this regard, the Authority recently held in Federal Bureau of Prisons, Federal Correctional Institution, Bastro, Texas and American Federation of Government Employees, Local 3828, AFL-CIO, 55 FLRA No. 147 (1999), that a status quo ante remedy was appropriate under FCI because the agency asserted, but failed to establish, that such a remedy would lead to disruption by interfering with internal security at the corrections facility.

      The Judge held that the first four factors considered under FCI, 8 FLRA at 606, favored the granting of a status quo ante bargaining order, because the Respondent did not "invite" the Charging Party to bargain; failed to respond to the Charging Party's request to bargain; committed a "willful" violation; and the requirements for reporting incidents and insuring medical attention "carry with them a considerable potentiality for disciplinary action as well as for increasing work load." Decision at 14. The Respondent does not challenge these findings.

      The Respondent challenges the status quo ante remedy in this case solely on the ground that the Judge erroneously found it would not disrupt or impair the [ v55 p907 ] efficiency and effectiveness of the Agency -- the fifth FCI factor. In this regard, the Judge found that the status quo ante remedy would not disrupt the effectiveness and efficiency of the agency operations because, as relevant here:

rescission of the policy to the extent that it operates to affect conditions of employment does not necessarily preclude the temporary use of the most essential features as guidelines for handling . . . the kinds of situations the policy addresses, as long as failure to adhere to those guidelines carries no risk of employment-related discipline.

Decision at 15. In reaching that conclusion, the Judge stated that restoring the status quo may lead to "some degree of uncertainty," but noted that such a remedy is a temporary solution that would likely force the Respondent to bargain. Id. at 16. In excepting to the Judge's determination, the Respondent asserts, without elaboration, that such a remedy would be "extremely disruptive" to the Respondent, and that "it is just plain dangerous to put Respondent in the position of having no policy to protect the constitutional rights of its `customers'[.]" Resp. Exceptions at 29.

      The Respondent's unsupported assertions are not sufficient to establish that a status quo ante remedy is not appropriate. [n15]  The Respondent does not provide any explanation for its assertion that such a remedy would be "extremely disruptive," and there is no record evidence establishing that the efficiency of the Respondent's operations would be impaired. Id. Specifically, there is no evidence to support the Respondent's claims, in direct opposition to the Judge's conclusion, that the Respondent would be left with "no policy [on non-deadly force] to protect the [C]onstitutional rights of its `customers'" if the status quo was restored. Id. Indeed, the record undercuts this claim. As noted in the testimony before the Judge, pursuant to the Immigration Act, in August 1994 the Attorney General issued regulations in 8 C.F.R. part 287, setting forth the categories of immigration officers who may use force, including deadly and non-deadly force, and the circumstances under which force may be used. See 8 C.F.R. § 287.8; Transcript at 89-92, 106-107. Those regulations are currently in effect and would govern any actions taken by the Respondent's employees regardless of the status of the Respondent's non-deadly force policy.

      In addition, the record does not support the Respondent's assertion that the absence of policies "`will create an extremely high risk that [C]onstitutional violations will ensue.'" Resp. Exceptions at 28. Even assuming that the Judge was correct in stating that there may be "at least some degree of uncertainty" in returning to the status quo pending bargaining, there is no basis for us to conclude that such uncertainty would create this alleged risk of Constitutional violations. Since the Respondent operated until 1994 without the non-deadly force policy at issue, any uncertainty about operations under that policy should be minimal. Moreover, the Respondent presumably has ample experience on which to base a concern about Constitutional problems in the absence of the policy. The Respondent does not assert, however, and the record does not reveal, that prior to the Respondent's unilateral implementation of its non-deadly force policy there were any -- let alone a "higher rate" of -- Constitutional violations made by the Respondent's employees, or that such employees were unable to appropriately "protect the constitutional rights of [the Respondent's] `customers[.]'" Id. at 28-29. [n16] 

      Consistent with the precedent cited above, in the absence of any evidence, we cannot find that a status quo ante remedy in this case will disrupt the efficiency [ v55 p908 ] and effectiveness of the Respondent's operations. [n17]  Accordingly, as the Judge's finding on the disruption to the Respondent's operations is the only finding disputed, and relying on the other undisputed findings, we conclude that the Judge properly ordered a status quo ante remedy, and we deny the Respondent's exception. [n18] 

X.     Order

      Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Statute, the U.S. Department of Justice, Immigration and Naturalization Service, shall:

      1.      Cease and desist from:

           (a)     Failing and refusing to bargain with the American Federation of Government Employees, National Border Patrol Council, AFL-CIO (AFGE, NBP Council), the exclusive representative of a unit of employees, over the impact and implementation of its decision to implement a new non-deadly force policy.

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

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

           (a)     Rescind the non-deadly force policy implemented in 1994 to the extent that it applies to employees represented by AFGE, NBP Council.

           (b)     Notify and, upon request, bargain with AFGE, NBP council over the impact and implementation of any new or revised policies on the use of non-deadly force.

           (c)      Post at its facilities wherever bargaining unit employees of the Unites States Border Patrol are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of the forms, the Notice shall be signed by the Commissioner, Immigration and Naturalization Service, and shall be posted and maintained for 60 days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily placed. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

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

      Pursuant to section 2423.41(d) of the Authority's Rules and Regulations, the portion of the complaint alleging that the Respondent failed to bargain over the substance of its non-deadly force policy is dismissed. [ v55 p909 ]


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

The Federal Labor Relations Authority has found that the United States Department of Justice, Immigration and Naturalization Service violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify employees that:

WE WILL NOT fail and refuse to bargain with American Federation of Government Employees, National Border Patrol Council, AFL-CIO, the exclusive representative of a unit of bargaining unit employees, over the impact and implementation of our decision to implement a new non-deadly force policy.

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

WE WILL rescind the non-deadly force policy implemented in 1994 to the extent that it applies to employees represented by the American Federation of Government Employees, National Border Patrol Council, AFL-CIO.

WE WILL notify and, upon request, bargain with American Federation of Government Employees, National Border Patrol Council, AFL-CIO, over the impact and implementation of any new or revised policies on the use of non- deadly force.

      ________________________
(Activity)

Date:__________ 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Regional Office, whose address is: Tech World Plaza, 800 K Street, NW, Suite 910, Washington, D.C. 20001, and whose telephone number is: (202)482-6700.


Opinion of Member Cabaniss, dissenting in part:

      I agree that under the circumstances of this case, the Respondent committed an unfair labor practice by failing to bargain over the impact and implementation of its revised policy on the use of non-deadly force. However, I believe that Part IX of the majority opinion, imposing a status quo ante remedy in addition to a bargaining order, is unfaithful to "the congressional command that [the Statute] be interpreted in a manner consistent with the exigencies of efficient government." United States Immigration and Naturalization Service v. Federal Labor Relations Authority, 834 F.2d 515, 517 (5th Cir. 1987); see also, United States Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, 975 F.2d 218, 221 n.6 (5th Cir. 1992). Therefore, I respectfully dissent.

      The Respondent's judgments concerning how to carry out the important law enforcement functions entrusted to it by the Immigration Act are entitled to considerable deference. See General Services Administration v. Federal Labor Relations Authority, 86 F.3d 1185, 1187 (D.C. Cir. 1996); United States Department of the Treasury, United States Customs Service v. Federal Labor Relations Authority, 43 F.3d 682, 686 (5th Cir. 1994). In this case, however, even though it chose not to bargain, the Respondent delayed implementation of the revised non-deadly force policy for approximately six months, from November, 1993 to May, 1994. I agree with the Judge that this circumstance belies the Respondent's claim that immediate implementation of the policy was necessary to its functioning.

      Nonetheless, the policy concerns expressed by the Respondent are not irrelevant in "carefully balancing" the nature of the violation against the disruption in government operations that would be caused by a status quo ante remedy, as required by Federal Correctional Institution and American Federation of Government Employees, Local 2052, AFL-CIO, 8 FLRA 604, 606 (1982)(FCI). In this case, the Judge implied that "temporary use of [the policy's] most essential features" (but without the ability to discipline employees who failed to follow the policy) might be necessary. Decision at 15. The majority agrees that "the Respondent's assertions show a need for the new policy," although not a need to implement it prior to bargaining. Majority at 32. In addition, the Judge found that recission of the policy and a return to the status quo ante will result in "at least some degree of uncertainty as to what actions are permitted." Decision at 16. I cannot agree with the Judge (and apparently the majority) that such confusion, when [ v55 p910 ] dealing in the realm of the constitutional rights of individuals, is a good thing.

      The majority finds the constitutional and liability issues raised by the Respondent inadequate to avoid a status quo ante remedy because it views the Respondent's arguments as "unsupported." Majority at 39. I do not agree. In this respect, I give considerable weight to the testimony of the Associate Commissioner for Enforcement. I do not believe the views of this individual, who has official responsibility for overseeing the Respondent's enforcement activities, and who, as indicated in his testimony, is highly trained and experienced in such matters, can be cavalierly dismissed. Moreover, the primary "adverse effect" of the non-deadly force policy identified by the Judge-the possibility that employees will be disciplined for failing to comply with its terms (Decision at 14)-is at least equally speculative. The Judge acknowledged that "little evidence was presented as to the nature and extent of the actual impact" experienced by employees. Id.  [n19] 

      We have previously required bargaining but denied a status quo ante remedy "taking into account the nature of the Respondent[`s] mission[.]" Federal Deposit Insurance Corporation, Washington, D.C. and Federal Deposit Insurance Corporation, Oklahoma City, Oklahoma and National Treasury Employees Union, 48 FLRA 313, 330 (1993), petition for rehearing denied sub nom., FDIC v. FLRA, No. 93-1694 (D.C. Cir. Dec. 12, 1994)(not imposing a status quo ante remedy even though all FCI factors present). By failing to do so here, we have placed bargaining rights on a higher plane than effective and efficient law enforcement (including avoiding the risk of constitutional violations), contrary to our duty under section 7101(b) to interpret the Statute "in a manner consistent with the requirement of an effective and efficient government."


File 1: Authority's Decision in 55 FLRA No. 151 and Opinion of Member Cabaniss
File 2: ALJ's Decision


Footnote # 1 for 55 FLRA No. 151 - Authority's Decision

   The opinion of Member Cabaniss, dissenting in part, is set forth at the end of this decision. The opinion of Member Wasserman, dissenting in part, is set forth in note 14 infra.


Footnote # 2 for 55 FLRA No. 151 - Authority's Decision

   In particular, the Respondent's claim that the non-deadly force policy does not concern "conditions of employment" are addressed in section III of this decision. In sections IV and V, we address the Respondent's claims that it is not obligated to bargain over the policy based on the terms of the parties' collective bargaining agreement and the negotiability of the proposals submitted by the Charging Party. The Respondent's claim that it was not required to maintain the status quo while bargaining over the impact and implementation of its non-deadly force policy are addressed in section VI of this decision. In section VII, we address the Respondent's claim that it was necessary to the functioning of the Agency for the Respondent to unilaterally implement its policy without bargaining.


Footnote # 3 for 55 FLRA No. 151 - Authority's Decision

   In the Respondent's November 1993 letter notifying the Charging Party of the non-deadly force policy, the Respondent referred to the policy as "the new Immigration and Naturalization Service policy on Non-Deadly Force[,]" and explained that "[w]hile all pertinent aspects of the policy have been implemented through the implementation of the Side-Handel Baton Program for Border Patrol Sectors and personnel," the non-deadly force policy provided in that notification was an "overall Service policy[.]" GC Exhibit 3.


Footnote # 4 for 55 FLRA No. 151 - Authority's Decision

   The Immigration Act, 8 U.S.C. § 1357(a), provides in pertinent part:

Under regulations prescribed by the Attorney General, an officer or employee of the Service may carry a firearm and may execute and serve any order, warrant, subpoena, summons, or other process issued under the authority of the United States. The authority to make arrests under paragraph 5(B) shall only be effective on and after the date on which the Attorney General publishes final regulations which (i) prescribe the categories of officers and employees of the Service who may use force (including deadly force) and the circumstances under which such force may be used, (ii) establish standards with respect to enforcement activities of the Service, (iii) require that any officer or employee of the Service is not authorized to make arrests under paragraph 5(B) unless the officer or employee has received certification as having completed a training program which covers such arrests and standards described in clause (ii), and (iv) establish an expedited, internal review process for violations of such standards, which process is consistent with standard agency procedure regarding confidentiality of matters related to internal investigations.

Footnote # 5 for 55 FLRA No. 151 - Authority's Decision

   The factors set forth in FCI are as follows: (1) whether, and when, notice was given to the union by the agency; (2) whether, and when, the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. 8 FLRA at 606.


Footnote # 6 for 55 FLRA No. 151 - Authority's Decision

   The Respondent relies on Articles 4.C and 5.A of the parties' expired agreement. The parties have not provided a copy of that agreement in the record. However, the Respondent quotes Article 4.C as follows:

(1) to direct employees of the agency;. . .
(4) to maintain the efficiency of the Government operations entrusted to them;
(5) to determine the methods, means, and personnel by which such operations are to be conducted[.]

Resp. Exceptions at 9. The Respondent quotes Article 5.A as follows:

A. . . . However, the obligations to meet and confer do[] not include matters with respect to the mission of the Agency; its budget; its organization; the number of employees; and the numbers, types, and grades of positions or employees assigned to an organizational unit, work project or tours of duty, the technology of performing its work; or its internal security practices.

Id.


Footnote # 7 for 55 FLRA No. 151 - Authority's Decision

        The Respondent's reliance on the "covered by" doctrine, held to apply in Department of the Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48 (D.C. Cir. 1992) (Marine Corps), and subsequently adopted by the Authority in Health and Human Services, 47 FLRA 1004, is misplaced. Where a party asserts -- as the Respondent does here -- that it is privileged by a contract to take action that would otherwise be an unfair labor practice, the Authority applies the "contract interpretation" doctrine -- not the "covered by" doctrine -- and interprets the contract to determine whether the agreement permits the agency to take the specific action at issue. See Internal Revenue Service, Washington, D.C. and National Treasury Employees Union, 47 FLRA 1091 (1993) (IRS); see also Social Security Administration, Region VII, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 55 FLRA 536, 538-39 (1999). However, because the Authority has previously determined, as a matter of law, that terms such as those included in the parties' agreement here do not waive a parties' bargaining rights, it is not necessary to apply the "contract interpretation" doctrine here.


Footnote # 8 for 55 FLRA No. 151 - Authority's Decision

   Acknowledging that the bargaining process involves more than the exchange of proposals is also consistent with the Statute, which requires parties to "approach negotiations with a sincere resolve to reach a collective bargaining agreement," and to "meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays . . . ." 5 U.S.C. 7114(b)(1),(3).


Footnote # 9 for 55 FLRA No. 151 - Authority's Decision

   In this respect, the Judge in Wright-Patterson AFB stated that "[p]roposals frequently change during the bargaining process, depending on a variety of factors, and since no bargaining occurred, it is not possible to ascertain at this time what the Union's ultimate proposals would have been or indeed, what Respondent would have accepted if bargaining would have been commenced." 25 FLRA at 555 (emphasis added).


Footnote # 10 for 55 FLRA No. 151 - Authority's Decision

   We note that in Social Security Administration, Malden District Office, Malden, Massachusetts and American Federation of Government Employees, Local 1164, AFL-CIO, 54 FLRA 531, 538 (1998) (SSA, Malden), the Authority dismissed the complaint alleging a failure to bargain because the parties had, in fact, bargained extensively and, at the time of implementation, the union had no pending proposals. In doing so, the Authority stated that "[t]he General Counsel had the burden of alleging and proving that a negotiable Union proposal was pending when the Respondent implemented the change [at issue]." Id. In the unique circumstances of that case, this was true. However, to the extent that SSA, Malden suggests that the General Counsel must always establish that the union made a negotiable proposal, we take this opportunity to clarify that this is not required. In this regard, a review of the precedent relied on by the Authority in SSA, Malden -- particularly SSA, Fitchburg, 36 FLRA 655 -- confirms that the description of the General Counsel's burden did not establish such a rule. As discussed above, in SSA, Fitchburg, 36 FLRA at 669, the Authority found that the agency violated the Statute, without regard to whether the union's proposal was negotiable.


Footnote # 11 for 55 FLRA No. 151 - Authority's Decision

   In INS-I, 834 F.2d at 518, the Court of Appeals for the Fifth Circuit found that the agency had not changed conditions of employment, and, thus, had no obligation to bargain before making a change in the status quo. In Customs Service v. FLRA, 854 F.2d 1414, the U.S. Court of Appeals for the District of Columbia Circuit found that the agency did not violate the Statute by failing to bargain before making a change in the status quo because it did not have an obligation to bargain over a proposal that would have completely blocked implementation of the agency's program. The court was applying the principle that an agency may implement a change in working conditions without violating the Statute where a union's proposals in response to that change are outside the duty to bargain, because, unlike here, the agency notified the union of the proposed change; the union requested bargaining; the agency responded asserting that it would not bargain because the matter over which the union sought to bargain was a management right; the union submitted specific proposals; and the agency declared those proposals nonnegotiable. In Department of Justice, 727 F.2d at 489, the Fifth Circuit held that the agency did not violate the Statute by making a change in the status quo while a question concerning representation under 5 U.S.C. § 7111 was pending with the Authority.


Footnote # 12 for 55 FLRA No. 151 - Authority's Decision

   The only evidence relied on by the Respondent before the Judge was the testimony of its Assistant Commissioner for Enforcement, who testified generally that "one of the primary purposes of the policy was to limit the civil liability of the [A]gency and its agents in fulfilling its mission." Respondent's Post Hearing Brief at 26 (citing Transcript at 106). Based on this testimony, the Respondent asserted that it had "established that a nexus exists between its decision to implement the policy and performance of the [A]gency mission." Id. The Respondent does not rely on this testimony in its exceptions.


Footnote # 13 for 55 FLRA No. 151 - Authority's Decision

   Specifically, the Judge found that Respondent's claim that implementation without bargaining was necessary failed because: (1) it did not give the Union the opportunity to even begin negotiations and could not claim that negotiations would have created a substantial delay; (2) more than 7 months elapsed between the Respondent's notification of the policy change and its implementation, demonstrating that there was no urgent need for the policy; and (3) there was little change between what was initially proposed for the non-deadly force policy by the agency and what was implemented. See Decision at 11.


Footnote # 14 for 55 FLRA No. 151 - Authority's Decision

   For the reasons stated in his dissent in Department of Commerce II, 54 FLRA at 392-405, petition denied, NAGE v. FLRA, 179 F.3d 946, 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 find that there was an obligation to bargain with respect to the substance of the non-deadly force policy, and not solely its impact and implementation, as it is undisputed that the policy concerns the methods and means of performing work under section 7106(b)(1) of the Statute. See, e.g., INS, New York, 55 FLRA 228, 236 (1999) (tools or devices, such as firearms and handcuffs, are the methods and means that the Immigration and Naturalization Service uses to accomplish its law enforcement mission). Consequently, Member Wasserman would not limit the conclusions reached in Parts IV through VI of this decision to impact and implementation bargaining only. However, in order to reach a disposition on the issue of the appropriate remedy, and because 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 policy or its impact and implementation, 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 # 15 for 55 FLRA No. 151 - Authority's Decision

   The testimony relied on in the dissent as support for rejecting a status quo ante remedy is described at note 12, supra. Giving the testimony due consideration, we are not persuaded that the witness' testimony about the purpose of the policy supports a conclusion that a status quo ante remedy -- revoking and delaying implementation of the policy until bargaining is completed --carries a risk of disruption sufficient to render it inappropriate under FCI.


Footnote # 16 for 55 FLRA No. 151 - Authority's Decision

   Our dissenting colleague states that she cannot agree that the Judge's "speculative" findings regarding the adverse affect on employees -- the fourth FCI factor -- outweigh the constitutional and other policy concerns identified by the Respondent. The dissent points out, in this regard, that the Judge found "little evidence" regarding the impact of the change on employees. Dissent at 2 (citing Decision at 14). In so doing, the dissent blurs the critical distinction between little evidence and no evidence. In particular, the Judge's uncontested finding that four of the FCI factors favor a status quo ante remedy cannot be outweighed by no evidence offered by the Respondent with respect to the fifth factor. Whether or not the evidence of adverse effect on employees is great, there is a finding by the Judge of adverse effect, which is not excepted to by the Respondent. We do not see how this finding, combined with the other FCI factors found by the Judge, can be outweighed by the complete absence of evidence supporting the concerns raised by the Respondent.


Footnote # 17 for 55 FLRA No. 151 - Authority's Decision

   Our dissenting colleague's view that the remedy ordered here places "bargaining rights on a higher plane than effective and efficient law enforcement (including avoiding the risk of constitutional violations)," undervalues the importance under the Statute of collective bargaining, particularly impact and implementation bargaining, and ignores the fact that the stated risk is completely unproven. Dissent at 48. With regard to the former, the Statute reflects Congress' judgment that collective bargaining "safeguards the public interest" and "contributes to the effective conduct of public business[.]" 5 U.S.C. 7101(a)(1)(A),(B). As a result of the restrictions on the scope of collective bargaining under the Statute, bargaining frequently is limited to the impact and implementation of matters that otherwise are outside the duty to bargain. With regard to the latter, there is no evidence in the record establishing any likelihood that a status quo ante remedy will interfere with the Respondent's law enforcement activities or increase a risk of Constitutional violations. Although the proviso that the Statute be "interpreted in a manner consistent with the requirement of an effective and efficient Government[,]" 5 U.S.C. 7101(b), requires us to take such considerations as an agency's mission into account in our decision making, this requirement also imposes on us an obligation to evaluate whether an agency has actually established -- rather than merely asserted -- that its effectiveness or efficiency would be impaired by a particular remedy. The dissent's implication that we must always defer to unsupported claims of potential Constitutional violations ignores this balance. Bargaining rights under the Statute could be rendered meaningless if they could be outweighed by unsupported allegations that an agency's "mission" was undermined.


Footnote # 18 for 55 FLRA No. 151 - Authority's Decision

   Absent his agreement on the scope of bargaining obligation, supra note 14, Member Wasserman would not apply the FCI factors because of his view that the Respondent was obligated to bargain over the substance of the non-deadly force policy pursuant to the election to bargain in Executive Order 12,871.


Footnote # 19 for 55 FLRA No. 151 - Authority's Decision

   The other alleged adverse effect identified b