Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas and American Federation of Government Employees, Local 3828, AFL-CIO (Authority decision, September 27, 1999)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair-labor-practice proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Federal Correctional Institution in Bastrop changed when inmate work crews stayed in their housing units and how foremen released inmates for meals and afternoon recall. It announced the changes at formal employee discussions without giving AFGE Local 3828 notice or an opportunity to attend, and it implemented the changes without bargaining over their effects. The Authority upheld those unfair-labor-practice findings and found that management also foreclosed later bargaining by offering to consider suggestions without negotiating. It dismissed the claim that management had to bargain over the substance of proposals concerning staffing and work methods, because those subjects were negotiable only at the agency's election. The prison must restore its actual prior practices, give the union notice and bargain on request over the effects of future changes, and post a notice for 60 days. The Authority replaced the judge's estimated lay-in limits with restoration of the actual prior practice, leaving its precise terms to compliance proceedings. Chair Segal concurred in the remedy but would have adopted the uncontested violation findings without further substantive analysis.

Decision snapshot

• Authority: 5 U.S.C. §§ 7106(b), 7114(a)(2)(A), and 7116(a)(1), (5), and (8).
• Outcome: Formal-discussion and effects-bargaining violations upheld; substantive-bargaining claim dismissed; restoration remedy modified.
• Key point: Elective bargaining over staffing and work methods does not eliminate mandatory bargaining over the effects of changes.

Full text (FLRA public release)

[ v55 p848 ]

55 FLRA No. 147

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

BASTROP, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3828, AFL-CIO

(Charging Party)

DA-CA-60254

DA-CA-60549

DA-CA-60550

DA-CA-60551

_____

DECISION AND ORDER

September 27, 1999

_____

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

I. Statement of the Case

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

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

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

II. Preliminary Matter

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

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

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

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

III. Background and Judge's Decision

A. Background

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

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

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

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

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

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

B. The Judge's Decision

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

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

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

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

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

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

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

IV. Respondent's Exceptions

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

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

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

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

V. Analysis and Conclusions

A. Analytical Framework To Be Applied In This Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VI. Summary

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

VII. Order

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

1. Cease and desist from:

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

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

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

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

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

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

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

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

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

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

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

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

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

We hereby notify bargaining unit employees that:

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

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

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

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

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

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

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

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

______

(Activity)

Dated:___By:___

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Regional Office, whose address is: 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, and whose telephone number is: (214)767-4996

Chair Phyllis N. Segal, concurring:

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

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

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

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

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

File 2: ALJ's Decision

Footnote # 1 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 2 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 3 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 4 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 5 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 6 for
55 FLRA No. 147

• Authority's Decision

The text of the proposals is as follows:

Detail Lay-ins, Facilities Department

1. When detail foremen supervising more than 4 inmates are on scheduled annual leave, training, or scheduled sick leave,
   their inmate details will be laid in the units and not assigned to other foremen.

2. When detail foremen supervising more than 4 inmates are on unscheduled annual or sick leave, their inmate details will be
   laid in the units and not assigned to other foremen.

3. If an absent detail foreman's position is filled through borrowing a staff member from another department, this will not
   apply.

Exceptions at 7.

Inmate Accountability, Facilities Department

1. At 10:30 AM, Monday through Friday, excluding holidays, detail foremen will secure their inmate details in their shops
   and account for their inmates. As the details are called for the noon meal, the foremen will release their inmates.

2. At 3:30 PM, Monday through Friday, excluding holidays, the detail foremen will secure their inmate details in their shops
   and account for their inmates. The inmates will be released to their units at yard recall.

Exceptions at 8.

Footnote # 7 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 8 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 9 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 10 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 11 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 12 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 13 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 14 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 15 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 16 for
55 FLRA No. 147

• Authority's Decision

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

Footnote # 17 for
55 FLRA No. 147

• Authority's Decision

With respect to the Respondent's APA claim, we note that section 706(2)(A) applies to judicial review of an "agency action" made reviewable by Statute. See 5 U.S.C. § 704. A judge's order is not itself judicially reviewable, and therefore not subject to section 706(2)(A) as claimed by the Respondent. In any event, in view of our modification of the status quo ante remedy, we find it unnecessary to address further the claimed violation of the APA.

[ v55 p860 ]

Office of Administrative Law Judges

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

BASTROP, TEXAS

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3828, AFL-CIO

Charging Party

Case Nos. DA-CA-60254

DA-CA-60549

DA-CA-60550

DA-CA-60551

William D. Kirsner, Esquire

Joseph T. Merli, Esquire

For the General Counsel

Steven R. Simon, Esquire

Octavia R. Johnson, Esquire

For the Respondent

Pamelia A. Clampit, Vice President

For the Charging Party

Before: JESSE ETELSON

Administrative Law Judge

DECISION

These four consolidated cases involve allegations that Respondent: (1) failed to comply with section 7114(a)(2)(A) of the Federal Service Labor-Management Relations Statute (the Statute) on two separate occasions by holding "formal discussions" with employees at which it announced changes in general conditions of employment without affording the Charging Party (the Union) notice and the opportunity to be represented; (2) implemented changes in conditions of employment regarding practices and procedures for the supervision of inmates who were assigned to work crews without providing the Union with an opportunity to negotiate concerning those changes; and (3) refused to bargain over either the substance or the impact and implementation of those changes by declaring nonnegotiable proposals the Union submitted concerning the changes after they were implemented. It is alleged that these actions violated sections 7116(a)(1), (5) and (8) of the Statute.

Respondent, denying all but the jurisdictional allegations and the allegations that two meetings with employees occurred, asserts that: (1) there were no substantive changes in the practices concerning "laying in" the inmate work crews (2) only de minimis changes were made to the procedures for releasing inmates from their work crews; and (3) Respondent, after declaring the Union's proposals about lay-in practices to be nonnegotiable, offered a counter-proposal, but the Union suspended bargaining.

A hearing was held in Austin, Texas. Counsel for the General Counsel and for Respondent filed post-hearing briefs. [n1] The following findings are based on the record, the briefs, my observation of the witnesses, and my evaluation of the evidence.

Findings of Fact

A. General Background

The Union is the agent of the exclusive bargaining representative of a nationwide consolidated unit of employees. In that capacity the Union represents employees at the Federal Correctional Institution, Bastrop, Texas, who are assigned to the institution's facilities department as foremen of inmate work crews. These foremen are responsible for the security of the inmates in their crews, for supervising their work activities and their access to tools, and for related paperwork.

The inmates assigned to these work crews had been placed in one or another "custody level," presumably according to a determination of the risk of their attempting escape. Crew sizes varied over time, but during the period relevant to these cases the work crews with which these cases are concerned averaged in the range of 15 to 25 inmates. The foremen are responsible for accounting for the location of each inmate every 30 minutes. Part of the foremen's job is "custody level work," which entails checking tools and checking or "shaking down" the workshops for contraband. The foremen have specialized skills in various aspects of construction and maintenance and are normally assigned to supervise work projects related to their individual skills.

When a crew foreman is not available for one reason or another, some provision must be made for the supervision of the crew. One option is a "lay-in," whereby the inmates normally assigned to the work crew remain in, or are sent back to, their housing units. [ v55 p861 ] Inmates who are thus "laid in" are not in the custody of facilities department foremen, but of officers assigned to the correctional services department. An alternative to a lay-in, when a work crew's regular foreman is not available, is a "double up," whereby a foreman is assigned to supervise his own crew and the missing foreman's crew. A lay-in must be approved by the appropriate associate warden. However, certain practices with respect to the conditions under which lay-ins were customarily ordered form part of the basis for the complaints in Case Nos. DA-CA-60254 and DA-CA-60550.

Facilities department foremen are required to attend daily meetings at 7:30 a.m., in a small area called the facilities office, at which management passes along information about operations and changes within the institution. Facilities Manager Calvin Bowen and General Foreman Blan Patterson are usually present, although Bowen sometimes observes the meetings from inside his private office. (Tr. 99, 137, 171). These meetings normally last between 5 and 10 minutes, although they may occasionally extend to 20 minutes. The Union is usually not given notice of the subjects to be discussed at these meetings.

B. Events Leading to Case No. DA-CA-60254

1. Lay-In Practices

Before January 19, 1996, lay-ins were routinely requested and approved for work crews when their regular foremen were not available and when the option of "doubling up" would interfere with the doubled-up foremen's ability to proceed with the work project and to oversee all of the inmates in both crews. (Tr. 206-07, 245-47). For example, the practice on the occasion of a foreman's vacation appears to have been mixed. During at least one foreman's vacation, the foreman who had been working on a project with him was doubled up to continue the project. (Tr. 160). Other foremen's vacations resulted in lay-ins. Sicknesses and training or other temporary assignments for the regular foreman commonly resulted in lay-ins. (Tr. 82, 160, 206-07).

2. January 19, 1996, Facilities Department Meeting

Facilities Manager Bowen and General Foreman Patterson (the foremen's second-line and first-line supervisors) attended the foremen's daily meeting on January 19, 1996. Bowen had met previously with his supervisor, Associate Warden Michael Jackson. They had discussed the issue of lay-ins, and Jackson had made some suggestions about steps to be taken to maintain the work crews in the department instead of laying them in.

At the January 19 meeting, either Bowen or Patterson announced that lay-ins would no longer be considered routine, but that a greater effort would be made to keep the crews at work, whether this meant doubling up or seeking assistance from officers from other departments or "outside" (Tr. 247-49). Bowen "had on [his] agenda that this topic of lay-ins and doubling up was going to be addressed" at the meeting (Tr. 282). [n2] No notes were taken at the meeting, which, according to a composite of the estimates of various witnesses, lasted between 10 and 20 minutes, or, as Skubiata put it, "maybe a little longer than what we normally have" (Tr. 205).

Reaction from the foremen included a concern with how this policy would affect their workload (Tr. 255). Foremen in attendance understood the new policy as one that would mean more doubling up. Their feedback made Bowen understand that they interpreted the announced policy as the elimination of lay-ins. (Tr. 230-31, 292-93). [n3]

Among the foremen present were Union Vice President Timothy Curry and Treasurer Wayne Skubiata. [n4] The Union had not been notified of the meeting. Curry and Skubiata attended only as employees who were required to attend. The Union was not otherwise notified of the policy announced at the meeting.

3. Implementation and Effects of Announced Policy

The lay-in policy announced at the January 19 meeting apparently went into effect immediately. [n5] A set of documents implicitly represented to be a compilation of the lay-ins ordered for February and March 1996 shows 5 full-day and 4 half-day lay-ins, combining to make the equivalent of seven full days of lay-ins (GC [ v55 p862 ] Exh. 9). Four of the lay-ins occurred on a single date on which the absent foremen were all assigned to training. A compilation representing the equivalent period in 1995 shows 17 lay-ins for various periods, totaling 67½ days. (GC Exh. 8). While I do not accept these data as definitive, and allowing for the possibility that these respective two-month periods do not present the most representative sampling of the practices before and after January 19, 1996, I find, in the absence of evidence to the contrary, that lay-ins were reduced drastically. [n6]

It is also uncontroverted that there was at least some off-setting increase in doubling up. Foreman Vernon Handcock, who supervised a construction crew, testified credibly that records he kept showed that he had been doubled up with inmates from another work crew for five days in 1995. I also credit as an approximation Handcock's recollection that on all but one or two of those occasions only one or two of that crew's inmates were assigned to him, the rest having been laid in. In 1996 from February 20 to the year's end, he was doubled up with the other crew on 36 days. (Tr. 101-03, 131). Construction Foreman John Eberle, Jr., who at the time of the hearing had become the Union's president, testified with somewhat less precision, but credibly, that his doubling up increased from about 10 to 40 days between 1995 and 1996. (Tr. 141-42, 158-59). This and other testimony estimating increased doubling up in 1996 was not controverted. Nor was there any reliable evidence to indicate how often, if ever, the situations formerly handled by laying in crews were handled after January 1996 by augmenting the staff of working crew foreman from outside the facilities department. [n7] In the absence of any showing that this option, discussed previously by Bowen and Jackson as an alternative to doubling up, was used to any substantial extent, I infer that the perception of the foremen that the reduction in lay-ins resulted in a corresponding increase in doubling up was essentially accurate.

Foremen testified credibly that the added burden of supervising and accounting for a second crew, which sometimes performed work of a type in which the doubled-up foreman was less proficient, and which sometimes worked at different locations from those of the foreman's primary crew, affected their conditions of employment in several ways. Aside from the most self-evident accompaniments of such extra responsibility, the foremen noted the necessity of obtaining and monitoring the use of an additional set of tools and materials and of making visual checks of each inmate at least every 30 minutes. Doubled-up foreman sometimes find themselves unable to issue certain classes of tools to the crews because such tools, for security reasons, may not be used by inmates outside the direct observation of the inmate's supervisor. Such effects of doubling-up have the further consequence of slowing the progress of the crews' work projects, or at least making it substantially more difficult to remain on schedule and, at the same time, remain in reasonable control of the quality of the work.

These effects are essentially uncontroverted. In dispute, and not subject to a definitive finding on this record, is the secondary effect of all of this on the foremen's ability to meet their supervisors' expectations with respect to performance and productivity, and the resulting impact on their performance evaluations. In their testimony, the foremen expressed fear of such results, but none had yet experienced an effect on their evaluations. On the other hand, while Jackson and Bowen testified that the additional load would be considered so as not to prejudice the foremen, Bowen also testified that no record was kept of when the foremen were doubled-up. This, of course, limited Respondent's ability to allow for such occurrences.

4. Union Request to Negotiate

On January 22, 1996, the Union's president had a memorandum delivered to Respondent's warden. It referred to Bowen's January 19 discussion of the change in lay-in policy and stated that the Union had not been notified or given the opportunity to bargain about this change. The memorandum concluded with a request that "this change, which was implemented immediately, be stopped, until such time as it has been negotiated with the Union. The Union demands negotiations on the issue."

Respondent did not respond to this memorandum for several weeks. The Union filed the unfair labor practice charge in Case No. DA-CA-60254 on February 23, 1996. Some time after that, Union Steward Pam Clampit, who handled unfair labor practice matters, telephoned Respondent's human resources manager, Elizabeth Eskew. Eskew's response was to schedule an "informational meeting," as provided in the parties' local Supplemental [collective bargaining] Agreement, for April 4. [ v55 p863 ]

C. Events Leading to Case No. DA-CA-60551

1. "Accountability" procedures for lunch and end- of-day release of inmates

Inmates in the work crews are released from their crews and divided into two groups for lunch. They are released again at the end of the work day. The crew foremen must account for all tools that have been issued to the inmates. Some or all of the crews have "shops" in which or out of which they work. Before March 11, 1996, the foremen were to remain in their shops when releasing the inmates to the appropriate gate, where the inmates passed through a metal detector before proceeding to their next assigned destination. One foreman, assigned in rotation, supervised the metal detector check. The other foremen (since the time for lunch release for each work crew varied from day to day) could keep their crews at work, either outside or in the shops, until it appeared necessary to ready them for release. [n8]

2. March 11, 1996, Facilities Department Meeting

At the regular daily morning meeting on March 11, 1996, General Foreman Patterson, by prearrangement with Bowen, announced a change in the release procedure. (Tr. 282). All of the foremen would now be required to report to the gate, at designated times, to be present while the inmates were checked through the metal detector. The Union was not given notice that this announcement would be made or that a change in the procedure was about to occur. Union Vice President Curry was at the meeting as a foreman. The record does not reveal whether Union Treasurer Skubiata or any other foreman who was also a Union official, besides Curry, was present. Nor is there any evidence of the length of the meeting.

3. Effects of the Change in Procedure

Under the new system, the foremen were required to report to the gate at approximately 10:30 a.m., in advance of lunch, for which the inmates might be released as late as 12 noon. At first, there was some confusion and inconsistency as to whether all of the foremen or only those whose inmates were in the first group for lunch had to report to the gate at 10:30 a.m. Eventually the procedure was clarified, so that approximately half of the foremen, those with inmates in the first group, are to report at 10:30, and the other foremen are to hold their inmates in their shops until notified by radio or buzzer to proceed to the gate. The second group is typically called about ten minutes, but occasionally 15 or 20 minutes, after the first. The two groups rotate weekly.

Foreman Eberle estimated that the time for inmates to report to the gate was 30 minutes earlier than previously. Foreman Curry estimated that after the change he spent 30 to 60 minutes a day standing at the gate. Foreman Handcock testified that, previously, the time to begin preparing inmates for release varied according to the foreman's judgment but was earlier under the new system. The end-of-day release apparently is not as time consuming. Typically, the foremen spend both periods standing and waiting. Previously, they were able to perform some of their production or paperwork duties during the release process.

Bowen characterized the change differently. In fact, the contrast between his perception, and the foremen's, of how the new system affected the foremen, borders on the bizarre. The difficulty may have resulted in part from some of the witnesses' failure to distinguish clearly between the situation as it existed immediately after the March 11, announcement and the situation at the time of the hearing, following further modifications. It is, of course, the change that was announced and effectuated at the March 11, meeting that is pertinent here.

Bowen saw no difference in what the foremen did at the gate under the new system and what they did in their shops under the old: they accounted for their inmates and made sure they were released at the appropriate time for the noon meal. Therefore, he testified, releasing the inmates at the gate took no more time out of a foreman's "work load" than "doing the same thing in his shop." Moreover, Bowen estimated that it would take a foreman no more than a minute to release his inmates at the gate, except that it would take "a little longer" on days that he had a double crew. On the other hand, Bowen conceded on cross-examination that the foremen "could be standing at the gate anywhere from five to ten minutes," occasionally longer, (or, under the old system, waiting in their shops) before the lunch release. He also estimated that they stood at the gate for approximately ten minutes at the end-of-day release.

Prompted by a question by Counsel for the General Counsel to explain what might otherwise have appeared to be a discrepancy between the one-minute and the five or five-to-ten minute estimates, Bowen testified (Tr. 287): [ v55 p864 ]

My statement was: From the time that they were called for the noon meal and called to release their inmates, it took them individually approximately a minute to release their inmates. The total time they're back there, I haven't addressed that until now.

Given the interest of the foremen to maximize and Bowen's interest to minimize the waiting times at the gate, I conclude that the new system often required individual foremen to spend at least 30 minutes a day, between the lunch and the end-of-day releases, waiting at the gate. I also credit the foremen who testified that, when they had waited instead in their shops, they were able to perform other duties while keeping the inmates under their supervision. Handcock and Curry in particular appeared to be reliable witnesses. Bowen was their second-line supervisor and did not satisfy me that he had first-hand knowledge of the minute-by-minute activities of each of the foremen. General Foreman Patterson, who might be expected to have had more opportunity to observe these activities, did not testify about this alleged impact of the change.

4. Union Request to Negotiate

On March 22, 1996, the Union's president submitted a memorandum to the warden, requesting a return to the status quo ante with respect to the March 11 change, and "to negotiate the change to the full extent required by law and executive order." The memorandum referred to Patterson's March 11, announcement instructing foremen to stand next to the gate until the "details" are released for lunch and at 3:30 p.m. until "yard recall." It also stated that the Union had not been notified that a formal discussion was being held or given the opportunity to bargain.

There is no evidence of a response to this memorandum. Union Steward Clampit subsequently called Human Resource Manager Eskew, and there was apparently an understanding that the inmate release matter would be discussed at the April 4 informational meeting along with the inmate lay-in issue.

D. Events Leading to Case Nos. DA-CA-60549 and 60550

1. The April 4 Informational Meeting

Representatives of the Union and of Respondent's management met on April 4 and attempted to resolve informally the issues raised by the Union's requests to negotiate as well as other issues. Management explained the concerns that led to the changes it had implemented and the Union voiced its concerns over the changes. Bowen also explained that the new inmate release "accountability" procedures were not what the foremen had understood as a result of the March 11 meeting. No agreements could be reached on the lay-in or inmate release issues. Union Steward Clampit suggested that the Union submit proposals for formal negotiations, and the parties proceeded on that basis. The Union also requested that Bowen provide a memorandum describing correctly his expectations of the foremen under the new inmate release procedures. [n9]

2. April 5: Memorandum on Inmate Release Procedures

Pursuant to the Union's request at the April 4 meeting, Bowen issued a memorandum the following day. Its subject, in Bowen's terminology, was "Meal Rotation and Recall Procedures." The memorandum was addressed to all facilities department foremen. Its opening paragraph described as its purpose, "to clarify any misunderstanding about the Facilities Foremen's responsibilities on the meal rotation and recall procedures."

For the "meal rotation," the memorandum documents the clarification in the new inmate release procedure that was discussed in the first paragraph of section C.3. of these findings of fact. Thus, the foremen are instructed that, at 10:30 a.m.:

First Group Foremen will report to the side gate to wait for call by Compound Officer. When lunch is called inmates will be release[d] by shops, identified by their foreman. When all shops from first group ha[ve] gone through, the General Foreman or Chief will call the metal detector and inform them this is all of group one. At this time the first group forem[e]n will start their lunch period.

NOTE: Second group forem[e]n need not report to side gate, but will be held accountable for inmates in their shops. Second group will be released when called by radio or buzzer. Second group foremen will begin their lunch at this time.

The instruction for the "recall" (afternoon) release is that, at 3:30 (p.)m.: "All forem[e]n will report to gate to help with the control of contraband." [ v55 p865 ]

A final note to the April 5, memorandum, presumably applicable to both the meal rotation and the recall procedures, states that, "If there is inclement weather the staging area will be the east side doors of the Facilities Shops."

3. Negotiations

On May 31, 1996, Union Vice President Curry signed off on a set of bargaining proposals regarding the policy for lay-ins and a separate set of proposals addressed to "inmate accountability," concerning the procedure for releasing inmates for lunch and for the afternoon recall. Both sets of proposals were submitted to management. Representatives of management and the Union met on June 6, to negotiate.

The Union's proposals on lay-ins essentially restricted doubling up of crews by mandating lay-ins whenever more than four of an absent foreman's inmates would otherwise be assigned to another facilities department foreman. Associate Warden Joe Haro, on behalf of management, responded that the Union's proposals on this subject were nonnegotiable as they involved the assignment of work. He may have added as a secondary reason that they involved internal security. (Tr. 56, 320-24.)

A management representative said that, although they had declared the Union's proposals nonnegotiable, management would consider, but not bargain over, whatever else the Union could come up with.(Tr. 378, 403-04). Union Steward Clampit proposed that, if an absent foreman's inmates were assigned to another foreman, they be given a task but no tools (Tr. 55-56, 396-97). Although Eskew testified that management addressed the concerns raised by Clampit's suggestion. (Tr. 384-85), there is no evidence of a specific management response. Clampit was left with the impression that management's declarations of nonnegotiability applied to her proposal about tools. (Tr. 56).

The Union's proposals on "inmate accountability" were to the effect that foremen should release their inmates from their shops, as their crews are called for the noon meal and, in the afternoon, at the time of the "yard recall."

During the parties' discussion of the subject of releasing the inmates, management expressed a concern with the metal detector being flooded with too many inmates released at the same time. A Union representative suggested that the releases be staggered. Associate Warden Haro, on behalf of management, said that the Union's proposals on this subject were nonnegotiable because they involved internal security. (Tr. 70, 323-24.)

Clampit testified that, at some point after Respondent declared union proposals to be nonnegotiable, and on the advice of the AFGE national representative who was a member of the Union's bargaining team, she introduced the phrase, "appropriate arrangements." She testified that she did not use the words, "impact and implementation," but that she made a statement to the effect of, "the least we can do is look at appropriate arrangements for affected employees" (Tr. 397-99). Eskew denied that Clampit used the words, "appropriate arrangements," but testified that, after the declaration of nonnegotiability, the Union indicated that it "wanted us to consider other things," and that management responded only that it would look at whatever else the Union submitted, but would not treat it as a proposal, nor did management intend "starting to talk about negotiations," because Eskew knew that "if I ever start I have to continue it." (Tr. 384-85, 403-04). [n10]

Analysis and Conclusions

I. Case Nos. DA-CA-60264 and 60551: Formal Discussions

In its recent decision in F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149 (1996)(F.E. Warren), the Authority took a fresh look at the analytical framework it employs in determining whether a management meeting with one or more employees is a "formal discussion . . . concerning any grievance or any personnel policy or practices or other general conditions of employment" within the meaning of section 7114(a)(2)(A) of the Statute. The Authority reaffirmed its basic four-part requirement for showing that a statutory formal discussion occurred--that there was: (1) a discussion; (2) that was "formal"; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or any other general condition of employment. Id. at 155. [ v55 p866 ]

The trickiest of these elements to apply, and the one most subject to dispute in the instant cases, is the second element, the "formality" of the discussion. While the Authority has long indicated that, in determining formality, it considers "the totality of the facts and circumstances presented," Id. at 157, quoting U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, 32 FLRA 465, 470 (1988) (Department of Labor), it had, at times, placed in a position of special importance a list of "factors" (sometimes 7 and sometimes 8) that it labeled as "relevant." See, for example, U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 51 FLRA 1339, 1343-44 (1996) (FCI Bastrop). The factors, as listed in FCI Bastrop, are:

(1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) how long the discussions lasted; (6) whether a formal agenda was established for the discussions; and (7) the manner in which the discussions were conducted.

The eighth factor, when included in the list, is whether each employee's attendance was mandatory. Department of Labor, 32 FLRA at 470.

In F.E. Warren, however, the Authority made a point of stating that these factors are "merely illustrative." 52 FLRA at 157. Further, the Authority demonstrated that in some cases the analysis of a meeting's "formality" may be affected only secondarily by what the Authority now calls the "Department of Labor factors" and that in some cases they may be only marginally, if at all, relevant. Id. at 156-58.

Consistent with this understanding, but on a more basic level, the Authority adopted a statement from the legislative history of the Statute as the explanation for the insertion of the word, "formal," in what is now section 7114(a)(2)(A). The statement it adopted is that the word was inserted "to make clear that this subsection does not require that an exclusive representative be present during highly personal, informal meetings such as counseling sessions regarding performance." Id. at 156, quoting Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979) 957 (124 Cong. Rec. 29,200). By adopting this statement of the word's purpose, previously cited only as the statement of an individual Member of Congress, see, for example, Department of Health and Human Services, Social Security Administration, 18 FLRA 42, 44 n.5 (1985), the Authority signified even more clearly that the 7 or 8 "factors" have no intrinsic weight but should be considered only to the extent that: (1) their consideration is necessary; and (2) they shed any light on the distinction between "highly personal, informal meetings" and meetings that cannot be so characterized.

Thus, in F.E. Warren, the Authority determined that, "even if evidence regarding the factors did not indicate formality," the purpose of the meeting--to prepare employees to be laid off--was of sufficient gravity that it was highly implausible that any second level supervisor would leave such an announcement "to a spontaneous, casual encounter with affected employees." 52 FLRA at 158. Therefore, the Authority concluded, the meeting was a formal discussion. Id. Cf. U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania, 38 FLRA 671, 677 (1990)(New Cumberland)("formality" of meeting shown by its having been attended by supervisors and unit employees and by its purpose having concerned general conditions of employment).

The Authority's formulation, "spontaneous, casual encounter," counterpoised in F.E. Warren as the opposite of a "formal discussion," follows its adoption of the congressional formulation, "highly personal, informal meetings," in the same decision. I conclude, therefore, that the Authority regards the two terms as sharing a significant characteristic. The essence of the Authority's formulation, however, is the absence of prearrangement, and that serves adequately for the purposes of the instant cases. Cf. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 594, 604 (1990)(interview was a "formal discussion," not a "casual conversation or a conversation that followed from an impromptu meeting"). [n11]

The two employee meetings with which the instant cases are concerned present instances where application of most of the Department of Labor factors would be particularly unhelpful. Because the meetings themselves were scheduled, daily events, their form and arrangement followed a pattern that was not established for the purpose of the specific meetings in dispute. The significance of the length of each of the meetings in question is debatable. The "discussions" relevant to these cases may not have been as long as each meeting as a whole, and the record does not support any finding [ v55 p867 ] as to the length of such discussions. There is no evidence at all on the length of the March 11 meeting, and the most reliable evidence concerning the January 19 meeting that is relevant to this inquiry is that it was "maybe a little longer than what we normally have."

On the other hand, I have made probative findings that relate to three of the Department of Labor factors, and shall mention them in ascending order of my assessment of their importance. First, Bowen, a second level supervisor, attended both meetings. Second, attendance was mandatory for the bargaining unit employees. Although the Authority has omitted this factor when it limits the list to seven factors, as it did in FCI Bastrop, this factor tends to show prearrangement, and pertains here because the daily meetings typically consisted principally of a flow of information from the supervisors to the employees, which implies some preparation of the matter to be communicated. Third, one of the supervisors had planned in advance of each of these meetings that the subject about which there was an alleged "formal discussion" would be raised. Whether or not this constituted a "formal agenda," as contemplated in the pertinent Department of Labor factor, it serves, especially when viewed in conjunction with the attendance at the meetings, to foreclose the characterization of either meeting as "highly personal," "spontaneous," or "casual." In contrast to any of these, both meetings were relatively formal, to a degree that, in my view, satisfies the purpose for which the requirement of formality was inserted in the Statute.

The only other of the traditional elements of a statutory formal discussion that requires analysis here, since the remaining elements are so clearly present, is the fourth, which specifies the subjects with which a section 7116(a)(2)(A) formal discussion is concerned. Here, the focus is on whether or not the subjects raised at these meetings were "general condition[s] of employment."

First, I must reject as irrelevant Respondent's contention that the subject addressed at the January 19 meeting was a de minimis change. [n12] The issue is whether the subject was a general condition of employment. I take it as beyond dispute that an employee's workload and the procedures for performing his or her job are conditions of employment, irrespective of the negotiability of such conditions. See National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 778-79 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). Moreover, since these meetings were called to announce at least some change in these conditions of employment, the instant cases are unlike Department of Veterans Affairs, Veterans Affairs Medical Center, Gainesville, Florida, 49 FLRA 1173 (1994), where a meeting at which a supervisor's "statements about disciplinary policy and work requirements were nothing more than routine reminders of past policies and requirements" was held not to be a formal discussion. Id. at 1175-76. Therefore, the only remaining question, for "formal discussion" purposes, is whether the conditions of employment addressed at these meetings were "general."

A condition of employment need not affect all the employees in a bargaining unit in order to be considered "general." Thus, in General Services Administration, 50 FLRA 401, 405 (1995), the Authority refrained from "defining the precise boundaries of what constitutes a `general' condition of employment for purposes of section 7114(a)(2)(A)," but cited with approval its prior decision in U.S. Department of Defense, Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 37 FLRA 952 (1990)(Defense Depot Tracy), to the extent that it had found that a meeting came within section 7114(a)(2)(A) when it concerned a general condition of employment of "all warehouse employees," a category comprising about 20 employees within a larger bargaining unit. Id. at 966-67. While the record here does not reveal the number of foremen who were affected by the conditions discussed at these two meetings, the conditions applied throughout the facilities department. This, I conclude, was sufficient to make them "general" for section 7114(a)(2)(A) purposes. [n13]

Having concluded that the January 19 and March 11, meetings included "formal discussions" that required that the Union be given an opportunity to be represented, it only remains to consider Respondent's argument that the Union in fact was given that opportu- [ v55 p868 ] nity at the January 19, meeting because Vice President Curry and Wayne Skubiata, then apparently a Union steward, were present. Respondent contends that the presence of a steward satisfied any requirement of Union representation because a provision in the parties' local supplemental agreement states that "Stewards designated by the Union President shall be vested with sufficient authority to represent the Union at the informal and formal steps of any matter of concern."

Whether or not the January 19, meeting may properly be condidered one of the "steps of any matter of concern," as that phrase is used in the agreement, the Union president did not, nor did he have the opportunity to, designate Skubiata or anyone else to represent the Union at that meeting. Both Curry and Skubiata attended the meeting as employees. Neither was a designated representative of the Union. Therefore, their presence did not satisfy the section 7114(a)(2)(A) requirement, as interpreted by the Authority, that the exclusive representative be given the opportunity to select representatives of its own choosing to be present during formal discussions. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594, 604-07 (1987). My ultimate conclusion on the "formal discussion" allegations is that Respondent violated sections 7116(a)(1) and (8) of the Statute by failing to comply with the requirements of section 7114(a)(2)(A).

II. Case Nos. DA-CA-60264 and 60551: Unilateral Changes

Counsel for the General Counsel contends that, by implementing the changes in the lay-in practice and in the inmate release procedures before giving the Union notice and an opportunity to bargain about those changes, Respondent violated sections 7116(a)(1) and (5) of the Statute. While the argument is made that Respondent was obligated to bargain both as to the substance and as to the impact and implementa-tion of these changes, the argument for "substance" bargaining is not much more than pro forma. In fact, later in his brief the General Counsel takes the position that the subjects these changes concern fall within section 7106(b)(1) of the Statute and are negotiable as to substance at the election of the agency. From there, the General Counsel argues that, by virtue of Executive Order 12781 (Oct. 1, 1993), the President made the election in favor of negotiating on all section 7106(b)(1) subjects.

To date, all of the administrative law judges to whom this argument has been presented have rejected it, and the issue is currently before the Authority. I incorporate by reference the discussion in which I rejected the Executive Order argument in U.S. Department of Justice, Immigration and Naturalization Service, Case No. WA-CA-50048 (Aug. 27, 1996). Essentially, I concluded there that, while the President ordered agency heads to negotiate over section 7106(b)(1) subjects, this order was not self-fulfilling, and is, by its terms, not enforceable by any administrative body outside the direct control of the President.

With regard to the alleged unilateral changes made here, both parties have concentrated on the separate but related issue of whether the changes that were made without giving the Union notice or an opportunity to negotiate were more than de minimis changes in conditions of employment. The de minimis standard is applicable to the obligation to negotiate not over the substance of a change but over procedures to be observed in the exercise of management rights and over appropriate arrangements for employees adversely affected by such exercise, as defined in sections 7106(b)(2) and (3) of the Statute and commonly referred to as the "impact and implementation" of the changes. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 405-08 (1986).

The obligation to bargain over the impact and implementation of changes made by an employing agency or activity depends on whether the changes had more than a de minimis impact on employee's conditions of employment. As recently restated by the Authority in General Services Administration, Region 9, San Francisco, California, 52 FLRA 1107, 1111 (1997) (GSA Region 9), "in assessing whether the effect of a decision on conditions of employment is more than de minimis, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employees' conditions of employment." [n14] In determining whether the impact of the change is sufficient to meet this standard, the Authority has made clear that the effect need not be substantial, but "only be more than de minimis." Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574, 575 n.2 (1992) (Portsmouth). Thus, the effect may be considered insubstantial and yet be sufficient to require impact and implementation bargaining. [ v55 p869 ]

The Shift from Lay-ins to Doubling Up

I find it virtually self-evident that the increase in responsibilities of foremen whose crews are doubled up is not only more than de minimis but is substantial. Independent of any increase in what may be regarded as their workload, the additional responsibilities in connection with monitoring the location and the activities of a second crew has an enormous impact on the conditions under which a foreman works. Without the benefit of expert testimony, I venture that the highest priority among a work crew foreman's duties, notwithstanding the work project involved, is to maintain an appropriate level of surveillance of the inmates. Thus, he is required to account for each inmate every 30 minutes. At the same time, the foreman has the work project, and each inmate's participation, to supervise.

Doubling, or substantially increasing, the size of the crew has the reasonably foreseeable effect of making these duties at least twice as difficult and stressful (recognizing that numerical values can be assigned to such qualities only metaphorically and for an illustrative purpose) but arguably increasing in greater multiples. The foreman's increased surveillance responsibilities necessarily reduce his opportunity to monitor each inmate's involvement in the work project. This aspect of his job is also made more difficult to accomplish to the extent that the additional inmates are performing aspects of the construction process that are outside the foreman's specialty. A non-expert in the art or science of corrections may venture further that an inmate who is actively and visibly involved in an appropriate activity is considered to present less of a risk of dangerous behavior than one whose activities are observed only once every 30 minutes. This is a perception that I find reasonable to infer that the foremen share. [n15]

An appropriate analogy, if not an exact parallel, might be drawn to a classroom situation. Doubling the size of a class in which student participation is an integral part undisputedly has an immense impact on a teacher's conditions of employment. Doubling the size temporarily by merging one's class with that of an absent teacher would, in effect, make the merged class's teacher a "substitute" as far as the supernuminaries were concerned. This might not make things any easier.

The other side of the coin here is that the increases in crew size did not occur on most days of the working year. A composite of the best evidence presented leads me to conclude that, from 1995 to 1996, the number of days of doubling up increased by as much as 30 days for some foreman, with no evidence as to the minimum increase. This represents somewhat over 10 percent of at least some foremen's working days. In terms of frequency alone, that might be considered insubstantial. However, given the impact of doubling up on the days that it occurs, the overall impact is more than de minimis.

Respondent asserts that one set of indications of the de minimis nature of the change is the fact that it had a policy of long standing that required written approval from an associate warden for any lay-in, and that such decisions are within the management rights recognized in the parties' collective bargaining agreement. However, these are matters of process and authority. What changed was the policy governing decisions to use lay-ins, and the consequent increase in doubling up. This policy change required that the Union be provided with the opportunity to bargain over its impact and implementation.

The Change in the Inmate Release Procedure

I have found that the change requiring foremen to release inmates at the gate instead of from their shops placed them at the gate for at least 30 minutes every day. Respondent's evidence contested the amount of time involved. Essentially denying that there was anything but a minimal change in the foremen's duties, Respondent presented nothing to suggest that any impact on their ability to perform their other duties was recognized and accommodated. The situation is thus in material respects substantially comparable to that in General Services Administration, National Capital Region, Federal Protective Service Division, Washington, D.C., 52 FLRA 563 (1996), where the Authority found a change in practice to be more than de minimis because the new practice added a procedure that occupied employees anywhere from 2 to 90 minutes a day. The Authority stated that "it is reasonable to conclude that a time-consuming . . . procedure would, in turn affect working conditions involving such matters as work assignments and appraisals. In these circumstances, the impact of the change on employees' working conditions is more than de minimis." Id. at 567-68. I conclude that, absent any persuasive argument to the contrary, this rationale is applicable here.

Aside from its dispute as to the facts, Respondent relies principally on management's perception that secu- [ v55 p870 ] rity considerations dictated the decision to make this change. However, reliance on security considerations only insulates the decision from "substance" bargaining. It does not affect the obligation to bargain over the impact and implementation of the decision. I therefore conclude that when it implemented the change in the inmate release procedure, as well as the change of policy on lay-ins, without first giving the Union the opportunity to bargain, Respondent violated sections 7116(a)(1) and (5) of the Statute.

III Case Nos. DA-CA-60249 and 60250: Refusal to Bargain on Union's Proposals

The proposals that the Union submitted in advance of the parties' June 6 negotiating session were essentially for reconsideration of the decisions to make the changes discussed above. In declaring these proposals nonnegotiable, Respondent essentially reaffirmed the position in which it placed itself by implementing these changes in the first place. Although the General Counsel argues that Respondent committed additional violations of sections 7116(a)(l) and (5) by its actions on June 6 and thereafter, he places the subjects of the proposals within section 7106(b)(1) of the Statute. Respondent appears to agree. If these subjects fall within section 7106(b)(1), they would be "negotiable" (subject to a mandatory bargaining obligation) only as to impact and implementation, unless Executive Order 12781 makes them negotiable as to substance. In any event, I have already concluded that the changes regarding these subjects required impact and implementation bargaining but not substance bargaining. Respondent's reaffirmation and continuation of its refusal to bargain over these subjects might arguably affect the effective date of the unfair labor practices for statute of limitations purposes, but adds nothing to the violations of sections 7116(a)(1) and (5) found above. See Kentucky National Guard, 4 FLRA 534, 545 (1980).

The events following implementation and the Union's bargaining requests, however, could affect Respondent's previously established obligation to bargain over the impact and implementation of the changes. That is, in the course of the parties' discussions of these issues, the Union might have waived its right to negotiate over the impact and implementa-tion of the changes. This could have occurred if, following Respondent's refusal to negotiate over the substance of the changes (and over the Union's proposals to rescind the changes) the Union had made it clear that it had no interest in negotiating only over impact and implementation, or had otherwise exhibited a conscious decision to forego such negotiations. [n16] Such conduct presumably would have met the Authority's test for determining whether a waiver of the right to bargain over a particular matter has been established by bargaining history. That is, the matter must have been fully discussed and consciously explored during negotiations and the union must have consciously yielded or otherwise clearly and unmistakably waived its interest in the matter. Headquarters, 127th Tactical Fighter Wing, Michigan Air National Guard, Selfridge Air National Guard Base, Michigan, 46 FLRA 582, 585 (1992).

That did not occur here. Respondent's response to the Union's substantive proposals was to the effect that the subjects they treated were nonnegotiable and that anything else the Union submitted would be considered, but not negotiated. This in itself had the tendency to foreclose bargaining over any aspect of the subjects of the proposals, including those aspects that were negotiable. See U.S. Department of Health and Human Services, Public Health Service, Indian Health Service, Indian Hospital, Rapid City, South Dakota, 37 FLRA 972, 981 (1990). Thus, although the Union did take up Respondent's offer to submit other suggestions, Respondent was not prepared to treat them as proposals for negotiation purposes. Nothing came of these suggestions. The Union was not required to insist specifically on "impact and implementation" bargaining. Id. at 980. To the extent that the Union failed otherwise to present further proposals, Respondent's course of conduct made such actions appear to be futile and were therefore not required in order to preserve the Union's bargaining rights. See Blue Grass Army Depot, Richmond, Kentucky, 50 FLRA 643, 653 (1995); U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 887 (1990). [ v55 p871 ]

Remedial Considerations

The only dispute about the appropriate remedies for these unfair labor practices is whether the bargaining to be ordered over the impact and implementation of the changes should be "prospective" only or should be conducted upon a return to the status quo ante. The General Counsel contends that the latter type of a bargaining order is appropriate under the criteria set forth in Federal Correctional Institution, 8 FLRA 604 (1982)(FCI I), based on Respondent's unilateral implementation of the changes, its long delay in responding to the Union's post-implementation bargaining demands and further delay before declaring the Union's proposals nonnegotiable, and the immediate and ongoing impacts on the employees. The General Counsel also notes the absence of evidence that a status quo ante remedy would disrupt or impair the efficiency of the agency's operations.

Respondent, on the other hand, asserts that rescission of either of the unilateral changes would have a disruptive effect and, relying on U.S. Army Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA 457, 459 (1986), argues that where, as here, a management action is based on its right to determine internal security practices, "greater weight must be given to the disruptive effect in applying the factors contained in [FCI I.]" Respondent also asserts that a prospective bargaining order is the appropriate remedy because the parties met and "bargained to some extent."

As the Authority noted in FCI I, 8 FLRA at 606, the appropriateness of a status quo ante remedy must be determined on a case-by-case basis, "carefully balancing the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy." Among the aspects of the particular violation that the Authority examines are (presented here in summarized form): (1) the notice, if any, that the agency gave to the union concerning the change; (2) the union's bargaining request, if any; (3) the willfulness of the agency's conduct; and (4) the impact on employees. Id. However, these factors are only examples of the considerations that go into determining whether such a remedy is appropriate. They should not, in my view, be given any weight beyond what use they serve in determining whether the purposes of such a remedy will be served.

The Authority, in a long line of cases, has explained that a purpose of restoring the status quo ante where management has made an unlawfully unilateral change is to ensure that the obligation to bargain is not rendered meaningless. See, for example, U.S. Department of the Treasury, Customs Service, Region IV, Miami District, Miami, Florida, 38 FLRA 838, 844 (1990). The Court of Appeals for the District of Columbia Circuit has placed its imprimatur on the Authority's explanation in that case, understanding it to mean that the purpose is "to ensure that agencies will have the incentive to bargain with their unions." FDIC v. FLRA, 977 F.2d 1493, 1498 (D.C. Cir. 1992).

It must be acknowledged here that the Authority has employed such an explanation only in cases where the unilateral change concerned a matter that was "substantively" negotiable. But notwithstanding that the Authority applies a different test to determine the appropriateness of a status quo ante remedy for unilateral changes that were negotiable only as to impact and implementation, the predictable effect of this remedy on the negotiations ordered by the Authority in such cases is not distinguishable in kind from its effect in "substance" bargaining cases. [n17] Moreover, the similarity in effect is too obvious to allow for it being unintentional when the Authority orders such a remedy in impact and implementa-tion cases.

The Authority has recently reaffirmed, in a case involving a unilateral change without bargaining over impact and implementa- tion, another purpose of a status quo ante remedy. That purpose is "to place parties, including employees, in the positions they would have occupied had there been no unlawful conduct." Department of Veterans Affairs Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1580 (1996). That this is a purpose the fulfillment of which the Authority deems to be significant in these kinds of unilateral change cases is reflected in its acknowledgment of the admonition: "[W]here an agency has taken unilateral action that disturbs the status quo and has illegally refused to give a union the opportunity to bargain over the decision (or its impact), a stronger case can be made for the proposition that the Authority, as does the NLRB, should restore the status quo ante in a remedial order--that is, make the employees whole." U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and U.S. Department of Health and Human Services, Hartford District Office, Hartford, Connecticut, 37 FLRA 278, 290-91 n.1 (1990)(SSA Hartford), quoting National Treasury Employees Union v. FLRA, 910 F.2d 964, 969 (D.C. Cir. 1990)(en banc). [n18] [ v55 p872 ]

Restoration of the status quo ante pending the parties' negotiation of impact and implementation here will manifestly serve both of the purposes the Authority has identified in connection with such a remedy. First, Respondent's desire to re-implement the changes it deems necessary should provide an incentive to proceed with meaningful negotiations without delay. Second, the employees whose conditions of employment have been adversely impacted, the harm suffered not having been ameliorated by any of the protective procedures or appropriate arrangements that the Union might have been able to negotiate if given the opportunity, would be relieved at least temporarily, if not made whole. The basic issue then, is whether there are factors militating against the imposition of such a remedy that outweigh its supposed benefits.

Respondent asserts that restoration of the status quo ante will "disrupt or impair the efficiency and effectiveness" of its operation. (Br. at 22). However, it points to no specific evidence as to the extent of such disruption, or to the particular "internal security" risks that would occur. FCI I, appears to recognize that restoration of the status quo ante will often have some disruptive effect. Thus it places in the balance the degree of disruption, not merely whether there will be any disruption. Moreover, in balancing such adverse effects against the competing factors, the Authority looks for "specific evidence in the record indicating the disruption that will be caused," rather than bare assertions that such results will follow. U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky, 38 FLRA 647, 650 (1990) (Lexington-Blue Grass). The Authority also considers the fact that its status quo ante remedy requires restoration of the former situation only until the agency has satisfied its obligation to bargain over the impact and implementation of the decision to make the change. SSA Hartford, 37 FLRA at 287.

This balancing of relevant considerations thus appears to make a status quo ante remedy appropriate here. To the extent that other of the FCI I factors may be deemed significant for purposes of the instant cases, they too tend to weigh in on the status quo ante side of the scale. No notice of the changes was given to the Union, either before or after their implementation. Soon after each of the changes, the Union requested negotiations, but there was no immediate response, and none, in fact, until after the Union filed its first unfair labor practice charge and, even then, until Union Steward Clampit followed up with a telephone call several weeks after the initial (January) unilateral change.

Respondent denies that its failure to discharge its bargaining obligation was willful, asserting that it acted under a mistaken belief, based on an arguably supportable position (provided by its labor relations office) concerning its bargaining obligation. That denial must be rejected on two counts. First, the evidence concerning advice from the labor relations office relates only to the June declarations of nonnegotiability, not to the unilateral actions in January and March. Second, the Authority no longer sees an agency's arguable but mistaken belief as to its bargaining obligation as a reason not to order status quo ante. Rather, it considers an intentional failure to notify a union of an impending change to be willful although based on an agency's erroneous conclusion that it was not obligated to bargain over the subject matter. Lexington-Blue Grass, 38 FLRA at 649.

The last FCI I factor that remains to be considered is the nature and extent of the impact experienced by adversely affected employees. I have, of course, made and recorded my findings about this impact in the course of disposing of the de minimis issue. I would not characterize the impact of either of the changes as severe, but at least somewhat beyond the threshold level at which the bargaining obligation attached. My analysis of this factor leads me to regard it as slightly persuasive on the side of the appropriateness of a status quo ante remedy.

An additional factor, presented by Respondent, is that some bargaining occurred. However, Respondent's reliance on U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 989, 992 (1990), seems misplaced. There, in a case not involving unilateral changes but a refusal to resume negotiations, the Authority was dealing with the issue of whether to provide a prospective or a retroactive bargaining order. That issue involves somewhat different policy considerations from those used in determining the appropriateness of status quo ante remedies. Moreover, the Authority was influenced in Customs Service by the fact that the parties had been able to reach agreement on various matters related to the remaining issues to be addressed when the ordered resumption of negotiation occurred. In the instant cases, no bargaining on the impact and implementation of the changes at issue [ v55 p873 ] occurred, at least in part because Respondent in effect preempted such bargaining.

One practical problem stands in the way of ordering restoration of the status quo ante with respect to the lay-in policy. The notice to employees that the General Counsel has proposed characterizes the former practice as "generally laying in inmate crews when their foremen are out[.]" Even accepting that as an accurate characterization, I regard it as too vague as a basis for measuring Respondent's compliance with a status quo ante order. Moreover, the record shows that characterization to be oversimplified. One might summarize as accurately by stating that the former practice was to order lay-ins on some occasions and not on others, perhaps ordering them more often than not. In these circumstances, having concluded that a status quo ante remedy is otherwise appropriate, I shall formulate a description of the status quo ante with respect to lay-ins and doubling up that, although unavoidably arbitrary, I believe will probably approximate the manner in which the former practice applied to individual foremen. This variant on the standard status quo ante order is nothing but a temporary expedient, and is designed for application in relation to months, not years, since its aim in part is to encourage prompt and successful conclusion of the parties' negotiations.

I recommend that the Authority issue the following order.

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, shall:

1. Cease and desist from:

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

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

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

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

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

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

(c) Restore the practices concerning the ordering of inmate lay-ins as they existed prior to January 1996 to the extent that the assignment of more than four inmates from an absent foreman's work crew to another foreman shall not occur more than an average of two days every six months for any individual foreman receiving such additional inmates, and no foreman shall be required to receive such additional inmates on more than two days in any calendar month, except that these limitations shall not apply if the receiving foreman is provided with suitable assistance in the supervision of the inmates.

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

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

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

(g) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director of the Dallas Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, D.C., May 30, 1997.

______

JESSE ETELSON

Administrative Law Judge [ v55 p874 ]

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

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

We hereby notify bargaining unit employees that:

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

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

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

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

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

WE WILL restore the practices concerning the ordering of inmate lay-ins as they existed prior to January 1996 to the extent that the assignment of more than four inmates from an absent foreman's work crew to another foreman shall not occur more than an average of two days six months for any individual foreman receiving such additional inmates, and no foreman shall be required to receive such additional inmates on more than two days in any calendar month, except that these limitations shall not apply if the receiving foreman is provided with suitable assistance in the supervision of the inmates.

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

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

_________

(Activity)

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 its provisions, they may communicate directly with the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, and whose telephone number is: (214)767-4996.

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

File 2: ALJ's Decision

Footnote # 1 for
55 FLRA No. 147

• ALJ's Decision

Counsel for Respondent also moved to correct several minor errors in the transcript of the hearing. The motion is granted and the transcript is corrected accordingly. I hereby also correct the volume containing Respondent's exhibits to show, as noted in the transcript, that Respondent's Exhs. 3, 12, 13 and 14 were rejected.

Footnote # 2 for
55 FLRA No. 147

• ALJ's Decision

This concession by Bowen renders moot, for purposes of the "formal discussion" issue, the factual dispute as to whether one of the bargaining unit foremen raised the subject of lay-ins first by asking a question about them.

Footnote # 3 for
55 FLRA No. 147

• ALJ's Decision

Bowen, when asked whether he announced such a policy, testified, "I can't say that that was the exact wording that I used that day" (Tr. 250).

Footnote # 4 for
55 FLRA No. 147

• ALJ's Decision

Skubiata was the Union's treasurer at the time of the hearing, approximately one year after the January 19 meeting. It is not clear whether he was the treasurer at the time of the meeting, but it appears that, treasurer or not, he was then one of the Union's stewards.

Footnote # 5 for
55 FLRA No. 147

• ALJ's Decision

There is credible evidence that even before theJanuary 19 meeting, Bowen had begun to implement the policy changes he had discussed with his supervisor, and that his purpose in putting this subject on the meeting's agenda was to explain the policy behind the changes that the foremen had already experienced.

Footnote # 6 for
55 FLRA No. 147

• ALJ's Decision

R Exh. 7 might be interpreted as supporting rather than questioning such a finding, but is inconclusive. See Tr. 335-37. Associate Warden Jackson testified that Bowen was the official who "should" keep track of lay-ins.

Footnote # 7 for
55 FLRA No. 147

• ALJ's Decision

Here again, R Exh. 7 and the accompanying testimony is inconclusive. What it does show, however, is a dramatic decrease in the loaning of correctional services department employees to "CMS," (another designation for the facilities department) for any purpose, after January 1996.

Footnote # 8 for
55 FLRA No. 147

• ALJ's Decision

I find Bowen to be mistaken to the extent that his testimony implies that all foreman had been required to bring their crews in at 10:15 a.m. to prepare them for the noon meal (Tr. 295-96).

Footnote # 9 for
55 FLRA No. 147

• ALJ's Decision

Bowen and Human Resources Manager Eskew both testified about having the impression that the Union had agreed orally, probably at the April 4 meeting, to a 6-month trial period for these procedures. Eskew ultimately conceded that she could not remember the Union actually agreeing to such a suggestion. I find insufficient evidence that there was such an agreement.

Footnote # 10 for
55 FLRA No. 147

• ALJ's Decision

While I suggested to the parties at the close of the hearing that they educate me as to the significance of whether or not Clampit used the words, "appropriate arrangement," or otherwise made an independent request for "impact and implementation" bargaining, at the June 6 meeting, neither party has seen fit to treat this as an issue or provided any reason to resolve the factual dispute one way or the other. Therefore, I shall make no credibility finding on this dispute. However, I accept Eskew's other characterizations of the postures the parties took after the declaration of nonnegotiability, and shall base certain conclusions on the implications I draw from those characterizations.

Footnote # 11 for
55 FLRA No. 147

• ALJ's Decision

Among potential tests of "formality" for section 7116(a)(2)(A) purposes, prearrangement has a practical advantage in that it makes possible the providing of notice to the union.

Footnote # 12 for
55 FLRA No. 147

• ALJ's Decision

Respondent makes no such argument, or any argument, concerning the March 11, meeting.

Footnote # 13 for
55 FLRA No. 147

• ALJ's Decision

However, it must be noted that, in Defense Depot Tracy, 37 FLRA at 960, the Authority distinguished between the warehouse employees in the case before it and "a small subcomponent of [four] unit employees" whose conditions of employment had not been regarded as "general" in an earlier decision. See also American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 330 (1990), where the Authority maintained the doctrine, announced in earlier decisions, that "general" conditions are limited to those that "concern conditions of employment affecting employees in the unit generally." This doctrine could be interpreted in a manner that is irreconcilable with my conclusion here. However, I read the Authority's more recent decisions as minimizing any reliance on a comparison between the size of the group of employees affected and the size of the bargaining unit.

Footnote # 14 for
55 FLRA No. 147

• ALJ's Decision

The Authority also reaffirmed that part of its customary description of how it makes this assessment, to the effect that "[e]quitable considerations will also be taken into account in balancing the various interests involved." Id. However, GSA Region 9 may to be the first case in which an "equitable consideration" (there the fact that the changed that was implemented was in response to a related suggestion from the union) expressly figured into the Authority's determination.

Footnote # 15 for
55 FLRA No. 147

• ALJ's Decision

The reasonable perceptions of the affected employees offer as sound a basis on which to evaluate the impact as any "neutral" perspective. The Authority has given at least some indication that it is less concerned with whether, from the agency's perspective, the actual effects of the change were reasonably foreseeable. Compare Portsmouth, 45 FLRA at 575, with the judge's decision in that case. Id. at 582-83.

Footnote # 16 for
55 FLRA No. 147

• ALJ's Decision

This assumes the correctness of my previous conclusion that Respondent was entitled to refuse to negotiate over substance.

Footnote # 17 for
55 FLRA No. 147

• ALJ's Decision

I presume that one reason for the difference in the Authority's test for applying this remedy in these two types of cases is that it is highly predictable that once the obligation to bargain over impact and implementation alone has been satisfied, the changes originally made unilaterally will either be made again or, if not rescinded in the interim, will remain in place.

Footnote # 18 for
55 FLRA No. 147

• ALJ's Decision

Neither the Authority nor the court it quoted made clear to what the phrase, "stronger case," was being compared. However, the court, in a footnote within the quoted passage (announced as "deleted" by the Authority), noted that: "In unilateral action cases, the NLRB has taken the view that it will `order restoration of the status quo ante to the extent feasible, and in the absence of evidence showing that to do so would impose an undue or unfair burden upon the respondent.'"