U.S. DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE, WASHINGTON, D.C. and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER PATROL COUNCIL

Other Files: 

Office of Administrative Law Judges

WASHINGTON, D.C.


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

Case No. WA-CA-70267


B. Virginia Comella

Representative of the Respondent


Deborah S. Wagner, Esq.

T. J. Bonner

Representatives of the Charging Party


Thomas F. Bianco

Counsel for the General Counsel, FLRA


Before: GARVIN LEE OLIVER

Administrative Law Judge



DECISION


Statement of the Case


The unfair labor practice complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (5), by changing working conditions of bargaining unit employees through (1) training bargaining unit employees in the collapsible steel baton in December 1996 and (2) implementing a non-deadly force policy on or about February 10, 1997, without completing bargaining with the Charging Party (Union) and while negotiable proposals were still on the table.


Respondent contends that it did not change conditions of employment or fail to bargain in good faith as it has conducted training classes in the collapsible steel baton since April 1995 and did not implement a non-deadly force policy in early 1997. Respondent claims that a revised non-deadly force policy was proposed in late 1997 and bargained on in good faith in 1998.


For the reasons explained below, I conclude that a preponderance of the evidence does not support the alleged violation and recommend that the complaint be dismissed.


A hearing was held in Washington, D.C. The parties were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. They filed helpful briefs. Based on the entire record(1), including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

The American Federation of Government Employees (AFGE) is the exclusive representative of a nationwide unit of employees appropriate for collective bargaining at the Respondent. The Charging Party, AFGE, National Border Patrol Council (NBPC or Union), is an agent of AFGE for representing unit employees at the Respondent's U.S. Border Patrol.


On or about August 14, 1995, the Respondent sent the Union a document entitled, "Enforcement Standard: Use of Non-Deadly Force." On September 15, 1995, the Union submitted to the Respondent a request to bargain and bargaining proposals concerning the subject raised in the document. On June 25 and 26, and October 23, 1996, representatives of the Respondent and representatives of the Union bargained in connection with the subject, but did not reach a final agreement.


On or about February 10, 1997, the Respondent, by Edwin S. Campbell, Jr., Labor and Employee Relations Policy Section, sent the Union a document, marked "10-24-96 Draft," entitled, "Enforcement Standard: Use of Non-Deadly Force" that differed from the August 14, 1995 document. A cover letter accompanying the document stated that the document was the final revisions on the enforcement standards; that "[a]fter negotiations lasting over one year in length, we must implement;" that, "all impact and implementation issues have been fully bargained and agreed upon;" and "it is our intent to implement these new standards;" that the standards specified in the document would go into effect as soon as employees were trained; and that training of employees in the use of equipment identified in the document would begin immediately. The draft had a notation at the end entitled "Approval of Standard," providing for a date and the signature of the Commissioner, INS, but it was undated and unsigned.


By letter to the Commissioner, INS, dated February 25, 1997, the Union protested the notice, stated that bargaining had not been completed on a number of unresolved issues, including the training provided for non-deadly force devices and the effect of a failure to recertify with non-deadly force devices. The Union enclosed a copy of the unfair labor practice charge in the instant case which was filed the same date.


Despite the February 10, 1997 letter to the Union, there was no implementation of the draft sent to the Union. No "Enforcement Standard: Use of Non-Deadly Force" developed in 1996 was ever issued or signed by the Commissioner, INS, allowing it to be put into effect.(2)

Mr. T. J. Bonner, President of the Union, testified that at the time he received the February 10, 1997 letter from Mr. Campbell, he was not aware of anyone having received training in the use of the collapsible steel baton. After filing the charge on February 25, 1997, he learned that a group of employees had been trained in the collapsible steel baton or ASP(3)