U.S. Department of Justice, Immigration and Naturalization, Service, Washington, D.C., (Respondent) and American Federation of Government, Employees, National Border, Patrol Council, (Charging Party)

[ v56 p351 ]

56 FLRA No. 50

U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE, WASHINGTON, D.C.
(Respondent)

and

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

WA-CA-80124

_____

DECISION AND ORDER

May 5, 2000

_____

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

I.     Statement of the Case

      This Unfair Labor Practice case is before the Authority on exceptions to the decision of the Administrative Law Judge filed by the Respondent, and cross-exceptions filed by the Charging Party. The General Counsel filed an opposition to the Respondent's exceptions. The Charging Party also filed an opposition to the Respondent's exceptions, and the Respondent filed an opposition to the Charging Party's cross-exceptions.

      The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it implemented a change in policy concerning body searches conducted by bargaining unit employees, without bargaining with the Charging Party over the Respondent's final revision of the policy. The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing the body search policy while negotiable proposals were still on the bargaining table. As a result, the Judge ordered the Respondent to cease and desist from its unlawful conduct and bargain with the Charging Party upon its request. [ v56 p352 ]

      Upon consideration of the Judge's Decision and the entire record, we find the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain with the Charging Party over the Respondent's final revision of its policy. We adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

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 case concerns the conduct of bargaining between the American Federation of Government Employees, National Border Patrol Council ("Charging Party"), and the United States Department of Justice, Immigration and Naturalization Service, Washington, D.C. ("Respondent"), over the Respondent's decision to draft and implement a comprehensive statement of policy governing body searches conducted by Border Patrol Officers ("BPOs"). [n2]  Prior to its decision to draft the policy, the Respondent's guidance for conducting body searches consisted of a number of manuals and handbooks. Two of the most significant changes made by the new policy concerned the rules for conducting two types of body searches: pat downs [n3]  and strip searches. [n4] 

      In 1995, the Respondent began to draft a new body search policy. The Charging Party and the Respondent met on several occasions to discuss the language of the policy, and the Respondent incorporated the Charging Party's suggestions into the draft "whenever [the Respondent's] review indicated that they [the suggestions] were not inconsistent with the Constitution and federal law." Judge's Decision at 3. On October 8, 1996, the Respondent sent the Charging Party a revised draft of the policy. In response, the Charging Party sent the Respondent a letter dated November 18, 1996, containing the Charging Party's revised proposals. Among other things, that letter requested that "implementation of the proposed policy be held in abeyance pending the completion of all phases of bargaining . . . . " Id. at 5, 9. Thereafter, the parties conducted no further bargaining.

      On May 28, 1997, the Respondent distributed to all Regional and District Directors a copy of the final body search policy. The Charging Party did not learn that the Respondent had issued the final policy until July, 1997. The Charging Party then received a letter dated September 12, 1997, where the Respondent explained that the final policy "was inadvertently transmitted to the field offices prior to having notified you of [our] intent to implement."  Judge's Decision at 5. Referring to the Charging Party's November 18, 1996 request that the Respondent delay implementation, the Respondent stated that, "[i]n the absence of negotiable proposals concerning the implementation and impact of the body search policy, [the Respondent] was free to implement that policy." Id.

      The Charging Party filed a formal charge against the Respondent alleging a violation of the Statute. The gravamen of the General Counsel's consolidated complaint is that the Respondent violated section 7116(a)(1) and (5) by not giving the Charging Party "an opportunity to review" the new policy statement, "or an opportunity to bargain in connection with [that] document . . . before it was implemented." See Complaint ¶ 27.

B.     The Judge's Decision

      First, the Judge found no merit in the Respondent's contention that the Authority has no jurisdiction in this case. In particular, the Judge found that United States Department of the Treasury, U.S. Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) (Customs Service), as relied upon by the Respondent, does not "preclude the Authority from exercising jurisdiction in an unfair labor practice case when an agency raises a Federal law as an affirmative defense to an alleged refusal to bargain in good faith." Judge's Decision at 7. The Judge also rejected the Respondent's claim that the change did not affect conditions of employment because the Immigration Act of 1990 "removed from the scope of [that] term . . . the entire area of body searches conducted [ v56 p353 ] by Immigration Officers." Id[n5]  Accordingly, the Judge found that the complaint was properly before him.

      Next, the Judge ruled that the Respondent's promulgation of the body search policy was an exercise of its right under section 7106(a)(1) of the Statute to determine its internal security practices. [n6]  In this regard, the Judge found that the policy was "designed to protect [the Respondent's] employees from physical harm and financial liability" and that "Respondent also was acting to protect its operations from lawsuits . . . for alleged violations of individuals' constitutional rights arising from their detention and body searches." Id. at 8. Therefore, citing Fraternal Order of Police, Lodge 1-F and U.S. Department of Veterans Affairs Providence Medical Center, 51 FLRA 143, 144-45 (1995), the Judge held that "Respondent has established a reasonable connection between the goal of safeguarding its personnel and operations and the practice designed to implement that goal[.]" Judge's Decision at 8. The Judge determined, however, that even though the Respondent had the right to issue the policy, the Respondent violated section 7116(a)(1) and (5) of the Statute when it unilaterally implemented the policy without completing bargaining with the Charging Party over impact and implementation proposals. See id. at 15. In coming to this determination, the Judge stated that there is no dispute that "Respondent's decision to issue a body search policy would change working conditions for bargaining unit employees[,]" and that "these changes would have more than a de minimis effect on the unit employees." Id. at 8.                               Then, as set forth in the attached decision, the Judge made a series of negotiability determinations. While he found some proposals to be contrary to law, he found others to be negotiable as appropriate arrangements under section 7106(b)(3) of the Statute.

      In terms of a remedy, the Judge rejected the request of the Charging Party and General Counsel for a status quo ante remedy. In determining that a status quo ante remedy was inappropriate, the Judge weighed the five factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI). [n7]  With regard to the first and second factors, the parties did not dispute that the Respondent notified the Charging Party in 1995 of its intent to issue a new body search policy, and that "the Union responded with requests to negotiate over the draft body search policy whenever Respondent provided copies of draft language to the Union for review and comment." Judge's Decision at 16. With regard to the third factor, the Judge found that the Respondent did not willfully fail to satisfy its duty to bargain over its decision to implement the policy[n8]  With respect to the fourth factor, the Judge found that the new body search policy "adversely affected the thousands of bargaining unit employees by increasing the danger to them from concealed weapons remaining undetected under the more restrictive rules governing pat downs and strip searches[,]" but that "neither the General Counsel nor the [Charging Party] submitted any evidence" that the new policy "had resulted in actual injury to any bargaining unit employee . . . . " Id. at 17-18. Finally, with respect to the fifth factor -- the effect of a status quo remedy on the efficiency of the agency -- the Judge found that rescission of the policy would significantly impair the effectiveness of the Respondent's operation and would "cause more confusion than permitting the policy to remain in effect while the parties negotiate over the few negotiable proposals still at issue." Id. at 18.

      In sum, the Judge found that a status quo ante remedy would be inappropriate under the circumstances of this case. The Judge ordered the Respondent to cease and desist from its unlawful conduct, bargain with the [ v56 p354 ] Charging Party over the impact and implementation of its new policy, and post a notice at its facilities to this effect.

III.     The Judge Properly Held That the Body Search Policy Concerns Conditions of Employment Under the Statute

A.     Positions of the Parties

1.     Respondent's Exceptions

      The Respondent contends that the Authority "lacks jurisdiction" over this complaint because "the questions at issue do not involve conditions of employment of bargaining unit employees." Respondent's Exceptions (Resp. Exceptions) at 6. Specifically, the Respondent argues that "[e]mployer actions that are taken to establish public policies on vital subjects such as searches of individuals detained by [BPOs] are removed from coverage of the [Labor-Management Relations] Statute even though they may incidentally affect the working conditions of bargaining unit employees." Resp. Exceptions at 7. In support, the Respondent cites Customs Service, 43 F.3d 682. [n9]  The Respondent argues that because it enacted the body search policy "in accordance with [the] statutory mandate" of Section 503 of the Immigration Act of 1990, 8 U.S.C. 1357(a), "the policy involves matters that are not conditions of employment[.]" [n10]  Resp. Exceptions at 7-9. In support, the Respondent contends that "[n]owhere in the legislative history of section 503 is there any indication whatsoever that Congress intended any part of the Immigration Act to regulate conditions of employment of [the Respondent's] employees." Id. at 8. The Respondent concludes that "the body search standard, including both its substance and its effects, falls within the Customs exception and, therefore, does not involve conditions of employment." Id. at 7.

2.     General Counsel's Opposition

      The General Counsel asserts that the Judge was correct in finding, "for the reasons set forth in his Decision and Order," that the Authority has jurisdiction over this case. General Counsel Opposition (GC's Opposition) at 6. In support, the General Counsel argues that "the Authority recently considered and rejected the same arguments" in American Federation of Government Employees, Local 1917 and U.S. Department of Justice, Immigration and Naturalization Service, New York, New York, 55 FLRA 228 (1999) (INS, New York).

3.     Charging Party's Opposition

      The Charging Party argues that the Immigration Act does not "operate[ ] as an exception to the duty to bargain" under the Labor-Management Relations Statute because "[t]he Immigration Act is only tangentially related to this dispute." Charging Party's Opposition (CP's Opposition) at 2-3. In support, the Charging Party argues that in INS, New York, 55 FLRA 228, the Authority "specifically rejected" arguments similar to those brought by the Respondent in this case. CP's Opposition at 3. The Charging Party also cites National Treasury Employees Union v. FLRA, 112 F.3d 402 (9th Cir. 1997), and U.S. Department of Justice, Federal Bureau of Prisons, Medical Facility for Federal Prisons and AFGE, Local 1612, 51 FLRA 1126 (1996), for the proposition that the D.C. Circuit Court of Appeals' decision in Customs Service does not apply to this case.

B.     Analysis and Conclusions

      We construe the Respondent's Exception as raising two types of objections: first, the Respondent raises the threshold jurisdictional argument that the Authority does not have "subject matter jurisdiction" in this case; 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 Air Mobility Wing, McGuire Air Force Base, New Jersey, 54 FLRA 1243, 1247-48 (1998) (McGuire AFB)

1.     The Authority Has Subject Matter Jurisdiction Over This Case

      The Authority has considered and rejected claims similar to that made by the Respondent that Customs Service deprives the Authority of jurisdiction. In American [ v56 p355 ] 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), the Authority 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. Likewise, in McGuire AFB, the Authority reaffirmed that distinction and extended El Reno's reasoning to unfair labor practice cases. In doing so, the Authority stated that "the Agency's assertion that the Authority lacks jurisdiction because the disputed action did not concern a condition of employment confuses the issue of whether an unfair labor practice occurred with the issue of whether the Authority has the jurisdiction to determine whether an unfair labor practice occurred." McGuire AFB, 54 FLRA at 1247-48. The Authority concluded that the presence of an issue concerning whether a policy concerns conditions of employment does not deprive it of jurisdiction. Accordingly, and as the Respondent has not established any reason to reconsider McGuire AFB, we find that the Authority has subject matter jurisdiction over this complaint.

2.     The Body Search Policy Concerns Conditions of Employment

      We also construe the Respondent to argue that its body search policy is outside of the duty to bargain because it does not concern "conditions of employment" under section 7103(a)(14) of the Statute. Specifically, we construe the Respondent as claiming 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 specifically provided by law.

      In U.S. Department of Justice, Immigration and Naturalization Service, 55 FLRA 892, 896-97 (1999) (DOJ), the Authority considered and rejected the argument 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. As the arguments addressed by the Authority in DOJ and those presented by the Respondent here are substantially similar, we follow that precedent and reject the Respondent's argument that the court's ruling in Customs Service should guide our decision in this case.

      Moreover, we reject the Respondent's claim that its body search policy is not a condition of employment because it was created pursuant to the Immigration Act. Section 7103(a)(14)(C) of the Statute excludes from the definition of "conditions of employment" 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 that "establish standards with respect to enforcement activities of the service." See supra note 5. Although this provision specifically requires the Attorney General to promulgate regulations setting forth enforcement policy, 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). Rather, section 1357(a) leaves the content of the policy to the discretion of the Attorney General.

      Accordingly, we find that the Respondent has not established that its body search policy is specifically provided for by Federal law. Based on the foregoing, we reject the Respondent's argument that its body search policy does not concern a condition of employment. [ v56 p356 ]

IV.     The Respondent Violated the Statute By Failing to Complete Bargaining

A.     Positions of the Parties

1.     Respondent's Exceptions

      The Respondent contends that "[t]he Judge erred by concluding that Respondent violated sections 7116(a)(1) and (5) of the Statute by implementing its body search policy without completing bargaining" because "there were no negotiable . . . proposals pending" at that time. Resp. Exceptions at 6, 46. As to each of the proposals, the Respondent argues that "none [of them] . . . are negotiable because they interfere with management's right to determine its internal security practices" such that they are not appropriate arrangements, "and/or are contrary to existing law." See Resp. Exceptions at 10. Accordingly, the Respondent requests that the complaint be dismissed "in its entirety." Id. at 46.

2.     General Counsel's Opposition

      The General Counsel opposes the Respondent's exceptions by arguing that, as found by the Judge, the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing the body search policy prior to completing bargaining. In support, the General Counsel cites Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, GA, 52 FLRA 225 (1996

3.     Charging Party's Opposition

      The Charging Party opposes the Respondent's exceptions by arguing that "the [Charging Party's] proposals are appropriate arrangements[,]" and "there is nothing in the [Charging Party's] proposals that is inconsistent with law." Charging Party's Opposition at 3, 7.

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). This obligation includes "affording the exclusive representative notice of proposed changes and an opportunity to [bargain.]" Id. at 10-11. This obligation also 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, 35 FLRA 764, 769 (1990). When an agency does not respond to a union's request to bargain, it is not necessary for the Authority to resolve the negotiability of the union's proposals in order to find that unilateral implementation of a change in working conditions violates the Statute. DOJ, 55 FLRA at 900-02.

      The facts of this case establish that the Respondent did not satisfy its duty to bargain over the proposals submitted by the Charging Party. Prior to October, 1996, the Respondent incorporated some of the Charging Party's proposals into the draft body search policy. Thereafter, in a letter to the Respondent dated November 18, 1996, the Charging Party proposed additional changes to the policy. In that letter, the Charging Party renewed a request that the Respondent refrain from implementing the final draft of the body search policy, until "the completion of all phases of bargaining . . . . " Judge's Decision at 5. The evidence demonstrates that the Respondent failed to respond to the request to bargain made in the letter, making no assertions regarding the negotiability of the proposals included therein, and that over six months later, the Respondent implemented its final body search policy. [n11] 

      Under Authority precedent, where the General Counsel has charged an agency with violating the Statute for unilaterally implementing a change in employment conditions, the General Counsel does not have the burden of proving that a union submitted negotiable proposals. See DOJ, 55 FLRA at 901. Rather, the Authority stated that in response to a charge of unlawful unilateral implementation, "an agency may assert as a defense . . . that the agency did not have an obligation to bargain because the specific proposals the union sought to bargain over were not negotiable." Id., citing U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 258, 262-63 (1991) (HHS, Baltimore). [n12]  In such cases, the agency must demonstrate, as a threshold requirement, that it responded to the union's request that the agency bargain over the union's proposals. [ v56 p357 ]

      Here, the Respondent did not respond to the Charging Party's November 18, 1996 bargaining request by contending that the Charging Party's proposals were nonnegotiable; rather, the Respondent implemented the changes without responding to the Charging Party's proposals at all. Consequently, the Respondent did not satisfy the threshold requirement identified above. We find that the Respondent's post-implementation statement that, "[i]n the absence of negotiable proposals concerning the implementation and impact of the body search policy, [the Respondent] was free to implement that policy[,]" does not relieve it of the statutory duty to bargain in good faith. Judge's Decision at 5. In this case, it was incumbent upon the Respondent to inform the Union of its view that negotiations had been concluded, along with the basis for that view. The Union could have then responded with revised proposals, a request for assistance from FMCS or FSIP, a negotiability appeal, or a pre-implementation ULP charge, if necessary. The bargaining process requires on-going communication, so that the parties may avail themselves of appropriate options, ultimately leading to lawful implementation.

      Based on the foregoing, we find that the Respondent violated the Statute, without regard to whether the proposals were negotiable. See DOJ, 55 FLRA at 901 (failure to respond at all to a request to bargain is a violation of the Statute, notwithstanding agency's assertion that union made no negotiable proposals). Accordingly, we find that the Judge properly concluded that the Respondent violated the Statute by not completing bargaining with the Charging Party.

V.     A Status Quo Ante Remedy Is Appropriate

A.     Positions of the Parties

1.     Charging Party's Cross-Exceptions to the Decision of the Administrative Law Judge

      The Charging Party argues that the Judge misapplied the FCI factors in coming to the conclusion that a status quo ante remedy is inappropriate in this case. With respect to the first two FCI factors, the Charging Party does not dispute the Judge's findings that it received notice that the Respondent intended to change the body search policy (the first factor), and that the Charging Party requested bargaining (the second factor). Rather, the Charging Party argues that the last three factors demonstrate that a status quo ante order is appropriate.

      First, the Charging Party contends that the Respondent "willfully failed to reply to the [Charging Party's] Nov. 18, 1996 demand to bargain[.]" Charging Party's Exceptions (CP's Exceptions) at 17. In this regard, the Charging Party alleges that the Respondent's Associate Commissioner of Enforcement "took matters into his own hands" by taking steps to have the policy implemented without notifying the Respondent's bargaining representative. Id. at 17. Moreover, the Charging Party contends that the Authority should consider the Respondent's "bad faith . . . in meeting its bargaining obligations" by "fail[ing] to send a representative to the bargaining table authorized to reach final agreement with the [Charging Party]." Id. at 18. The Charging Party alleges that "agency representatives freely admitted that they did not have authority to reach agreement with the [Charging Party] . . . [e]verything they said at the table was tentative, pending the approval of [the Respondent]." Id. In support, the Charging Party cites Internal Revenue Service and Internal Revenue Service Brooklyn District, 23 FLRA 63 (1986). [n13] 

      Second, the Charging Party contends that the Judge's findings are inconsistent regarding the nature and extent of the impact of the new policy experienced by employees. In this regard, the Charging Party notes that, although "the ALJ found that `Respondent's new body search policy adversely affected thousands of bargaining unit employees'[,]" (CP's Exceptions at 19, quoting Judge's Decision at 17), "the ALJ then went on to find that the General Counsel and the [Charging Party] had failed to provide any concrete evidence regarding actual injuries to bargaining unit employees . . . . " CP's Exceptions at 19. In light of the Judge's findings, the Charging Party argues that concrete evidence "is not necessary to establish the nature and extent of the impact [of the new policy] on employees." Id.

      Third, the Charging Party argues that the Respondent did not meet its obligation to "demonstrate, with specific examples, how, and to what degree," a status quo ante remedy would impair the efficiency or effectiveness of its operations. Id. at 19. In support, the Charging Party cites Defense Logistics Agency, Defense Industrial Plant Equipment Center, Memphis, Tennessee, 44 FLRA 599 (1992). Moreover, the Charging Party contends that "Respondent's conduct demonstrates" that there is "no particular need" for the policy statement because: the new policy is "merely a compilation of previously existing regulations and case law"; [ v56 p358 ] and "record evidence indicates [the Respondent] was in no hurry at all to implement[,]" when the parties began bargaining in March, 1995 and implementation did not occur until May 1997. CP's Exceptions at 20. The Charging Party concludes that, "on balance . . . . a status quo ante remedy was necessary and appropriate in this case." Id.

2.     Respondent's Opposition to Charging Party's Cross-Exceptions

      The Respondent argues that, assuming arguendo that a violation of the Statute occurred in this case, the Judge correctly determined that a status quo ante order is inappropriate. The Respondent contends that the Judge's determination is supported by the five FCI factors. In this regard, the Respondent claims that it "gave the [Charging Party] timely notice in accordance with the terms of the parties' collective bargaining agreement[.]" Resp. Opposition at 17. The Respondent also contends that it "bargained in good faith about the implementation of the policy." Id. The Respondent relies upon the fact that it "incorporated a number of [the Charging Party's] proposals" into the policy. Id. Next, the Respondent contends that "no adverse consequences can be traced to any violation of the Statute which Respondent may be found to have committed." Id. at 18. According to the Respondent, the policy has positive consequences because the policy is "in much greater detail than in the past[,]" which "should enable [BPOs] to perform their duties with greater confidence" and provide "assurance that they can avoid discipline and liability by following Respondent's policy." Id. Finally, the Respondent argues that "[r]ecission of that policy would be detrimental, not only to Respondent, but to the employees and the general public[.]" Id. at 18. In support, the Respondent argues that rescission of the policy "would be particularly disruptive in the current environment where a number of law enforcement agencies are under intense scrutiny for their search policies." Id. at 18-19. [n14]  The Respondent concludes that if, arguendo, it "might be found" to have committed a violation in this case, "a prospective bargaining order and posting would best effectuate the purposes of the Statute." Id. at 19.

B.     Analysis and Conclusions

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

      The parties do not dispute that notice was given to the Charging Party by the Respondent concerning its decision to draft a new body search policy, or that the Charging Party requested bargaining over the change. The Charging Party's cross-exceptions put the last three FCI factors at issue. [n15] 

      First, we find that the evidence shows that the Respondent willfully failed to bargain over the Charging Party's last proposals. The Judge determined that the Respondent's issuance of the policy "was not in deliberate defiance" of its good faith bargaining obligation. Judge's Decision at 17. However, the implementation of the policy was not a mistake, such as the result [ v56 p359 ] of a misunderstood instruction. Implementation was an intentional action. When an agency's failure to discharge its bargaining obligation under the Statute is intentional, although based on an erroneous conclusion that it was not obligated to bargain over the subject matter, the Authority will find that the Respondent's refusal to bargain was willful. U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky, 38 FLRA 647, 649 (1990). Here, the Respondent did not respond to the request to bargain contained in the Charging Party's November 18, 1996, letter, and did not give the Charging Party notice that implementation of the final body search policy was imminent. Accordingly, we find that the Respondent willfully failed to discharge its bargaining obligation under the Statute. See, e.g., DOJ, 55 FLRA 892 (status quo ante remedy appropriate when agency implemented new policy without responding to union's request to bargain); Veterans Administration Medical Center, Prescott, Arizona, 46 FLRA 471 (1992) (VAMC Prescott) (status quo ante remedy appropriate when agency failed to give union notice prior to changing tours of duty of bargaining unit employees).

      Second, the Judge's finding that implementation of the new policy had more than a de minimis effect on bargaining unit employees (Judge's Decision at 8) demonstrates that the change had an adverse impact on unit employees. See, e.g., Social Security Administration, Gilroy Branch Office, Gilroy, California, 53 FLRA 1358, 1370 (1998) (judge's finding that change in appointment schedule had more than de minimis effect supported status quo ante remedy); VAMC Prescott, 46 FLRA at 476 (finding that change in work schedules was more than de minimis supported status quo ante remedy). In particular, we note the Judge's finding that implementation of the new policy "adversely affected the thousands of bargaining unit employees by increasing the danger to them from concealed weapons remaining undetected under the more restrictive rules governing pat downs and strip searches . . . . " Judge's Decision at 17. Accordingly, we find that employees likely to face increased danger through implementation of the new policy have been adversely affected. [n16] 

      Third, we find that the Judge incorrectly determined that a status quo ante remedy would disrupt the efficiency and effectiveness of the Respondent's operations. 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, Local 4042, 53 FLRA 749, 763 (1997). See, e.g., U.S. Department of Health and Human Services, Social Security Administration, 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. DOJ, 55 FLRA at 906, citing National Treasury Employees Union v. FLRA, 910 F.2d 964, 969 (D.C. Cir. 1990).

      After reviewing the record, we find no evidence to support the Judge's conclusion that a status quo ante remedy is inappropriate. In reaching his conclusion, the Judge relied on the following reasoning:

issuance of the new policy was designed to replace a fragmented and confusing group of management guidelines with a comprehensive and unitary directive to [BPOs] in an area of central importance to accomplishing the agency's mission . . . [o]rdering rescission of the policy, which has been in effect for nearly two years might, indeed, would, cause more confusion than permitting the policy to remain in effect while the parties negotiate over the few negotiable proposals still at issue.

Judge's Decision at 18. The Judge refers to no record evidence that a return to the status quo ante would "cause more confusion than permitting the policy to remain in effect" and, other than the conclusory statements, the Judge refers to no record evidence that would militate against a return to the status quo. Neither does the Respondent refer to record evidence that would support its assertion that "[r]ecission of that policy would be detrimental not only to Respondent, but to the employees and the general public." Resp. Opposition at 18.

      The facts of this case demonstrate that, prior to implementation of the new policy in 1997, a number of manuals and handbooks contained policy that guided BPOs on the subject of body searches. See Judge's Decision at 3, 9. In this respect, the instant case is similar to DOJ, 55 FLRA 892, and Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, [ v56 p360 ] 55 FLRA 848 (1999) (FCI Bastrop), where we held that restoration of prior internal security practices for the purpose of impact and implementation bargaining would not significantly disrupt or impair the efficiency and effectiveness of agency operations. In FCI Bastrop, the agency implemented new policies that replaced prior practices and procedures regarding the movement of inmates at a correctional facility, without satisfying its duty to bargain as to impact and implementation. There, while recognizing the legitimate security concerns that had motivated the agency to implement the changes, the Authority held that a status quo ante remedy would effectuate the broad policies of the Statute when the agency had "not established how, and to what degree, disruption to the efficiency and effectiveness of its operations would be caused by a restoration of the former practices." 55 FLRA at 856. In particular, the Authority noted that the agency "would be required to adhere to its former practices only until such time as the [agency] fulfills its bargaining obligations under the Statute." Id. In DOJ, the agency implemented a new policy that replaced prior regulations governing the use of non-deadly force, without satisfying its duty to bargain as to impact and implementation. There, the Authority determined that temporary rescission of the new policy would not impair or disrupt the agency's operations when the agency's prior regulations would govern any actions taken by the agency's employees. DOJ, 55 FLRA at 907. Similarly, in this case, the practices and procedures that governed body searches prior to implementation of the new body search policy would serve to govern the actions of BPOs during the period of a status quo ante order.

      In addition, the record does not demonstrate that rescission of new body search policy will increase, as the Respondent claims, the possibility of litigation brought against it for "unreasonable or illegally conducted search[es][.]" Resp. Exceptions at 23. Even assuming that the Judge was correct that the new body search policy is clearer and more comprehensive than the agency's earlier guidelines for conducting searches, there is no basis for us to conclude that a return to the status quo would create this alleged risk of Constitutional violations. Indeed, the Judge found that "Respondent has not demonstrated that it has been criticized or held liable -- financially or otherwise -- for unreasonable searches committed by its Border Patrol Officers in the past." Judge's Decision at 12.

      Consistent with the precedent cited above, and in the absence of any specific evidence that a status quo ante remedy would be disruptive to the efficiency and effectiveness of the Respondent's operations, we find that a status quo ante remedy is appropriate.

VI.     Summary

      We find that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to complete bargaining with the Charging Party. We also find that a status quo ante remedy is appropriate.

VII.     Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Justice, Immigration and Naturalization Service, Washington, D.C. shall:

      1.     Cease and desist from:

           (a)     Issuing a final policy governing the performance of body searches by Border Patrol Officers without completion of bargaining with the American Federation of Government Employees, National Border Patrol Council (AFGE, NBP Council), the exclusive representative of a nationwide bargaining unit of its employees.

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

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

           (a)     Rescind the final policy governing the performance of body searches by Border Patrol Officers implemented in 1997.

           (b)     Restore the practices and procedures concerning the performance of body searches by Border Patrol Officers as they existed prior to implementation of the final policy in 1997.

           (c)     Provide AFGE, NBP Council, with notice of any intention to change the practices and procedures concerning the performance of body searches by Border Patrol Officers and, upon request, bargain in good faith over such changes.

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

           (e)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Washington Region, Federal Labor Relations Authority, Tech World Plaza, 800 K Street, NW., Suite 910, Washington, D.C. 20001, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. [ v56 p361 ]


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, Washington, D.C. 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 issue a final policy governing the performance of body searches by Border Patrol Officers without completing bargaining with the American Federation of Government Employees, National Border Patrol Council (AFGE, NBP Council), the exclusive representative of a unit of bargaining unit employees.

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 final policy governing the performance of body searches by Border Patrol Officers implemented in 1997.

WE WILL restore the practices and procedures concerning the performance of body searches by Border Patrol Officers as they existed prior to implementation of the final policy in 1997.

WE WILL provide AFGE, NBP Council, with notice of any intention to change the practices and procedures concerning the performance of body searches by Border Patrol Officers and, upon request, bargain in good faith over such changes.

      _______________________
(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:

      For the reasons stated by the Judge, as well as those set forth more fully in my dissent in U.S. Department of Justice, Immigration and Naturalization Service, 55 FLRA 892, 909-10 (1999), I believe that the majority's decision to impose a status quo ante remedy will create confusion where clarity is sorely needed, and therefore 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). In this regard, my review of the record leads me to the opposite conclusion from that reached by my colleagues. For the protection of both sides, Respondent's employees need clear guidance on what actions are legal and appropriate when interacting with members of the public under less than ideal circumstances. I would not deprive them of such guidance on the sensitive issue of body searches while the few issues still in dispute between the parties are being resolved.


File 1: Authority's Decision in 56 FLRA No. 50
File 2: ALJ's Decision


Footnote # 1 for 56 FLRA No. 50 - Authority's Decision

   Member Cabaniss' opinion dissenting in part is set forth at the end of this decision.


Footnote # 2 for 56 FLRA No. 50 - Authority's Decision

   Border Patrol Officers are responsible for detecting, apprehending and processing those individuals who enter the United States illegally. BPOs routinely search such individuals incident to their arrest because some who enter this country illegally conceal knives, razor blades, or other weapons in their clothing or on their persons. Judge's Decision at 2-3.


Footnote # 3 for 56 FLRA No. 50 - Authority's Decision

   Under the new policy, a pat down is generally considered to be a very thorough feeling of a person's clothing and body that is conducted by BPOs after stopping individuals in the field. See Respondent's "Enforcement Standard" for conducting body searches, labeled as G.C. Exhibit No. 6, at 3; Tr. at 75. Also, under the new policy, "[a] pat down does not normally include the removal of clothing." G.C. Exhibit No. 6 at 6. In contrast, under the old policy, it was common practice for BPOs to remove coats and outer layers of clothing during a pat down. Tr. at 71-72.


Footnote # 4 for 56 FLRA No. 50 - Authority's Decision

   Under the new policy, a strip search is generally considered to be "the removal or rearrangement of some or all of an individual's clothing to examine the clothing or to permit the inspection of exterior skin surfaces of the body . . . . " See G.C. Exhibit No. 6, at 4. In contrast, under the old policy, a strip search was understood to occur only when BPOs required an individual to strip down to his or her undergarments, or down to no clothing at all. See Tr. at 36.


Footnote # 5 for 56 FLRA No. 50 - Authority's Decision

   As relevant to this case, the Immigration Act of 1990, 8 U.S.C. § 1357(a), provides that INS officers may exercise arrest powers only after the promulgation of regulations by the Attorney General regarding, inter alia, the standards to be applied to enforcement actions.


Footnote # 6 for 56 FLRA No. 50 - Authority's Decision

   The parties do not dispute that the Respondent exercised its right under § 7106(a)(1) of the Statute in promulgating the policy. See Respondent's Exceptions at 14; Charging Party's Opposition at 3.


Footnote # 7 for 56 FLRA No. 50 - Authority's Decision

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


Footnote # 8 for 56 FLRA No. 50 - Authority's Decision

   In support for this finding, the Judge noted that the parties met on several occasions to discuss the language of the draft policy, and that the Respondent incorporated into the policy whatever of the Charging Party's proposals it deemed were consistent with law. The Judge also gave credit to the testimony of the Respondent's bargaining representative that she was unaware that the Respondent's Commissioner had implemented the policy, and that implementation of the policy "was not in deliberate defiance of Respondent's duty to bargain" because "key personnel" "who were knowledgeable concerning the status of the parties' negotiations" were replaced with "individuals who had [ ] no prior involvement in the process" and who later implemented the policy. Judge's Decision at 17.


Footnote # 9 for 56 FLRA No. 50 - Authority's Decision

   In Customs Service, the court found that the Authority lacked jurisdiction over an arbitrator's award because the grievant claimed a violation of a customs inspection statute, a law not issued "for the very purpose of affecting the working conditions of [unit] employees[.]" 43 F.3d at 689. Applying the definition of "grievance" in section 7103(a)(9)(C)(ii) of the Statute, which "means any complaint . . . by any employee, labor organization, or agency concerning . . . any claimed violation, misinterpretation, or misapplication of any law, rule, or regulations affecting conditions of employment," the court concluded that the claim at issue in Customs Service was not a grievance within the meaning of that section.


Footnote # 10 for 56 FLRA No. 50 - Authority's Decision

   The Respondent does not quote any particular language from the Immigration Act. Rather, the Respondent argues that the Act "broadened the arrest powers of Immigration Officers by allowing them to make arrests under a wider range of circumstances . . . [t]his legislation also codified certain authorities which Immigration Officers have exercised for years such as carrying firearms and using deadly force." Resp. Exceptions at 7-8.


Footnote # 11 for 56 FLRA No. 50 - Authority's Decision

   The Judge credited the testimony of the Respondent's witness that the Respondent issued the body search policy "without responding to the [Charging Party's] last proposals submitted on November 18, 1996, or even notifying the [Charging Party] of the action that was about to be taken[.]" Judge's Decision at 17. Accordingly, the Judge found that the Respondent unilaterally implemented its policy before negotiations had been completed.


Footnote # 12 for 56 FLRA No. 50 - Authority's Decision

   HHS, Baltimore stands for the principle 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. This principle only applies, however, in cases where "a union submits bargaining proposals and an agency refuses to bargain over them on the contention that they are nonnegotiable[.]" HHS, Baltimore, 39 FLRA at 262-63 (emphasis added).


Footnote # 13 for 56 FLRA No. 50 - Authority's Decision

   The Charging Party states that it is not its intent to suggest that a charge of bad faith "be regarded as a separate violation of the Statute, as this allegation was not included in the Complaint or litigated at the hearing . . . [h]owever, in determining the appropriateness of a status quo ante remedy, the totality of Respondent's conduct . . . should be taken into account." CP's Exceptions at 18 n.8.


Footnote # 14 for 56 FLRA No. 50 - Authority's Decision

   The Respondent points to the fact that "New York City has been found liable for illegal strip searches that were conducted by corrections officers[,] and cites to The Washington Post, "Strip Search Suits May Cost N.Y. Millions," (May 13, 1999). Id. at 19, n.4. The Respondent also points out that its body search policy for juveniles was the subject of a lawsuit in Flores v. Meese, 681 F. Supp. 665 (C.D. Cal. 1988). Resp. Opposition at 3. As related to those points, the Respondent also argues in its exceptions to the Judge's Decision that "an unreasonable or illegally conducted search by an Immigration Officer could result in significant financial liability" to both the Respondent or individual officers. Resp. Exceptions at 23.


Footnote # 15 for 56 FLRA No. 50 - Authority's Decision

   These factors are: the willfulness of the agency's conduct in failing to discharge its bargaining obligation, the nature and extent of the adverse impact on unit employees, and whether and to what degree a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations.


Footnote # 16 for 56 FLRA No. 50 - Authority's Decision