United States, Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Customs and Border Protection, Washington, D.C. (Respondent) and American Federation of Government Employees, National Border Patrol Council, AFL-CIO (Charging Party/Union) (Authority decision, May 20, 2005)

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 case under 5 U.S.C. § 7118. 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). The Authority dismisses the complaint in full.

Plain-English summary

Customs and Border Protection changed which personally owned handguns officers could use and reduced the remedial firearms training specified in its policy from 80 hours to 8. An administrative law judge found that the union had waived bargaining over the handgun change but that the agency violated its bargaining duty and a memorandum of understanding when it changed remedial training. The Authority agreed that the handgun claim should be dismissed. It also found that the training change had no shown or reasonably foreseeable effect on bargaining unit employees beyond a minimal level, so the agency had no duty to bargain over it. The Authority found no repudiation of the memorandum and dismissed the entire unfair labor practice complaint. Member Pope dissented in part, reasoning that the large training reduction required notice and bargaining.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(1), 7116(a)(5), and 7118.
• Outcome: Judge's training and memorandum violation findings rejected; complaint dismissed in full.
• Key point: The record did not establish more than a minimal actual or reasonably foreseeable effect of the training change on bargaining unit employees.

Full text (FLRA public release)

[ v60
p943 ]

60 FLRA No. 170

UNITED STATES

DEPARTMENT OF HOMELAND SECURITY

BORDER AND TRANSPORTATION

SECURITY DIRECTORATE

BUREAU OF CUSTOMS

AND BORDER PROTECTION

WASHINGTON, D.C.

(Respondent)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

AFL-CIO

(Charging Party/Union)

WA-CA-02-0811

_____

DECISION AND ORDER

May 20, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions. [n2]

The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by: (1) changing its policy on the type of personally owned handguns that employees could use and changing the number of hours of remedial firearms training provided to employees; and (2) repudiating a Memorandum of Understanding (MOU) concerning the above matters.

The Judge concluded that the Respondent did not violate the Statute by changing its policy on the type of personally owned handguns that employees could use and recommended dismissal of that portion of the complaint. The Respondent excepted to certain of the Judge's findings, although not to the conclusion. The Judge also found that the Respondent violated the Statute by changing the number of hours of remedial firearms training provided to employees and by repudiating the MOU. The Respondent excepted to the Judge's findings and conclusions with respect to these aspects of the complaint.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. For the reasons discussed below, we conclude that the Respondent did not commit the unfair labor practices alleged in the complaint. Accordingly, we dismiss the complaint in its entirety.

II. Background and Judge's Decision

A. Background

Article 3A of the parties' collective bargaining agreement provides that after management has notified the Union of proposed changes to rules, regulations and policies at the national level, the Union has 30 days to serve notice of its intent to negotiate and an additional 10 days to submit written proposals. Under a separate MOU, which the parties negotiated to address the Respondent's Firearms Policy (Policy), the parties agreed that the Union would be notified, in accordance with the collective bargaining agreement, and given an opportunity to bargain over changes in the Policy and the types of personally owned handguns that employees could use.

In 2000, the Respondent chartered the Firearms and Force Board (Board), which was responsible for the development and oversight of the firearms program, including the selection of firearms and training and qualification requirements. The Union designated one representative to the Board who was allowed to vote and participate fully in the Board's activities. The Union's Executive Vice President represented the Union on the Board for approximately two years, after which the Union withdrew from participation.

During the period of May through July, 2001, the Board deliberated over the elimination of a firearm called the SIG-Sauer handgun as an authorized personally owned weapon that employees could use. During the deliberations, consensus was reached that current approvals for the SIG-Sauer would remain in effect. [ v60 p944 ] The Union representative indicated that the Union would agree to a cessation of new authorizations for the SIG-Sauer handgun if a different handgun were authorized for use instead. The Union also stated that it expected to receive notice of and an opportunity to bargain over proposed changes to the Respondent's Firearms Policy. Ultimately, in July 2001, the Firearms and Force Executive Committee (Committee), which consisted of various management officials to whom Board recommendations were made, recommended that existing authorizations for the SIG-Sauer handgun would terminate during calendar year 2003, following completion of bargaining with the Union, and that the handgun would no longer be approved for personal purchase and use by employees on the job.

On February 25, 2002, the Board, including the Union representative, was provided with Appendix 1B to the Policy via e-mail. Appendix 1B stated that the SIG-Sauer handgun was no longer authorized for personal purchase and that existing individual authorizations "will terminate in calendar year 2003." Judge's Decision at 9 (footnote omitted).

In addition to the issues surrounding the SIG-Sauer handgun, the Board, in January 2001, proposed that the Policy be modified to provide for 8 hours of remedial firearms training for Basic Trainee Officers who failed to pass the required firearms training course during their initial training. The Board's recommendation reflected the Respondent's view that a 1996 revision to the Policy that provided for 80 hours of remedial training, rather than 8 hours, was a typographical error. The Union claimed that the parties had negotiated an allowance of 80 hours of remedial training that could not be changed without negotiations.

On June 6, 2001, members of the Board were informed that, effective May 5, 2001, the Commissioner had approved the "correction" to the remedial training allotment, such that 8 hours of remedial training were authorized. [n3] Judge's Decision at 10. The parties disputed whether the Union representative was informed of this change at this time.

On March 1, 2002, the Respondent formally issued the revised Policy which included, as relevant here, the phase-out of the SIG-Sauer as an authorized personally owned weapon and a reduction in the amount of remedial firearms training from 80 hours to 8 hours. On April 3, 2002, the Policy was distributed to Board members. The Union representative stated that negotiations concerning the changes would be necessary.

Thereafter, on April 26, 2002, the Respondent provided the Union's President with a copy of the revised Policy. The Respondent also advised the Union President that the Union, through its representation on the Board, had received notice of the changes and had not made a timely request to bargain. As such, the Respondent took the position that the Union had waived its right to bargain. The Union President received this letter on May 18 and, 30 days thereafter on June 17, notified the Respondent that the Union had not received adequate notice of the changes, demanded that the Union be given an opportunity to bargain, requested certain information, submitted bargaining proposals and demanded rescission of the Policy pending the completion of bargaining. The Respondent subsequently furnished the requested information but rejected the Union's demands to bargain and rescind the Policy.

B. Judge's Decision

Initially, the Judge denied the General Counsel's motion to strike portions of the Respondent's post-hearing brief in which the Respondent referred to a decision of an administrative judge of the Merit Systems Protection Board (MSPB) and the Respondent's rationale in that decision for changing the amount of remedial training. The Judge found that matters pertaining to the MSPB judge's decision had been properly introduced into evidence. [n4] The Judge also found that the Respondent's assertion that the charge was not timely filed under § 7118(a)(4)(A) of the Statute was barred. [n5] In this connection, the Judge found that such a claim is an affirmative defense that must be raised prior to the close of the hearing. The Judge determined that the Respondent raised this defense for the first time in its post-hearing brief and, as such, that it was not timely raised. [ v60 p945 ]

As to the merits of the complaint, the Judge found that the changes in the type of handgun that employees could use and the amount of remedial training affected conditions of employment and that such changes were more than de minimis. Specifically, he found that the impact of the elimination of the SIG-Sauer as an authorized personally owned weapon is "obvious." Id. at 12. Noting that employees are allowed to purchase handguns other than the standard issue weapon, even after elimination of the SIG-Sauer as an authorized handgun, the Judge stated that "the parties recognize that the exercise of personal choice in weapons, however limited, is a matter of importance to at least some employees." Id. at 13.

As for the reduction in the amount of remedial training, the Judge found, based on the Union's undisputed testimony regarding bargaining history, that "the provision for 80 hours in the 1996 Firearms Policy was not a typographical error and that the subsequent reduction back to 8 hours was a substantive change." Id. The Judge also found that the impact of this change "is somewhat speculative" and that there "is no evidence that any employee has yet required the full 80 hours of remedial training, nor is there any evidence as to whether any employee has required more than 8 hours of remedial training." Id. Nonetheless, the Judge stated that an employee who failed to qualify in firearms proficiency was subject to termination. Id. The Judge further determined that the "the amount of remedial firearms training available to Basic Trainee Officers is not a management right and is substantively negotiable." Id. at 20. The Judge added that, "[e]ven if the establishment of a remedial training allocation were a management right, it should not be assumed before negotiations begin that the Union could not propose appropriate arrangements to alleviate the adverse impact of the policy on members of the bargaining unit." Id. at 21.

With regard to the practice of notifying the Union of proposed changes, the Judge made the following findings:

In considering the evidence as a whole, it appears likely that, while most of the notices regarding national issues might have been directed in writing to [the Union President], there was no hard and fast rule to that effect, especially as to matters within the purview of the Board. Furthermore, the evidence shows that subordinate Union officials, including [the Union representative on the Board and a local president located in California], kept [the Union President] informed of proposed changes which they felt should be negotiated at the national level.

Id. at 14 (footnote omitted). The Judge also found that the Union did not inform the Respondent that notices should be in writing and directed exclusively to the Union President and that there was no binding past practice to this effect. Rather, the Judge stated that the Union had selected a representative to the Board and used that individual to communicate the Union's position to the Board. Noting also that the Union representative was the Union's Executive Vice- President, the Judge found that the representative, if "not actually authorized to receive notice on behalf of the Union,
. . . at least had apparent authority to receive notice with regard to matters which were within the purview of the Board." Id. at 17 (footnote omitted).

More specifically as to the change in the use of the SIG-Sauer, the Judge found that the Union first received notice of the elimination of the SIG-Sauer as an authorized personally-owned handgun on February 25, 2002 when the Respondent provided Board members, including the Union representative, with copies of Appendix 1B. The Judge found that while there was no specific date on which the revision to the Policy was to be implemented, "it was indicated that the change, which included the elimination of the SIG-Sauer handgun, would go into effect as soon as possible." Id. at 17. The Judge reasoned that "the Union, through [the Union representative and the Union President] could have had no legitimate doubt concerning the action which it had to take to preserve its right to bargain." Id. Finding that the Union waited until June 17, 2002 to request bargaining and submit proposals, the Judge concluded that the Union waived its right to bargain over this change. On this basis, the Judge found that the Respondent did not violate the Statute, as alleged.

As for notice of the change in the amount of remedial training, the Judge determined that the Union representative did not receive a copy of the Commissioner's approval of the allotment of remedial firearms training until April 3, 2002. According to the Judge, on that date, the revised Policy was distributed to the Board along with notice that it had gone into effect on March 1, 2002. The Judge found that the Respondent failed to give the Union timely notice of the change and, therefore, violated § 7116(a)(1) and (5) of the Statute. The Judge further found that "[s]ince the Union did not receive timely pre-implementation notice of the reduction of remedial training hours, it was not required to request bargaining in the first place, . . . nor is it necessary to address the issue of the negotiability of the Union's proposals." Id. at 20. In reaching these conclusions, [ v60 p946 ] the Judge determined that the amount of remedial training "is not a management right and is substantively negotiable." Id. Alternatively, the Judge held that "[e]ven if the establishment of a remedial training allocation were a management right, it should not be assumed before negotiations begin that the Union could not propose appropriate arrangements to alleviate the adverse impact of the policy on members of the bargaining unit." Id. at 21.

The Judge also found an independent violation of the Statute by virtue of the Respondent's repudiation of the MOU. In this regard, the Judge found that the sole purpose of the MOU was to "restate and reinforce the Respondent's bargaining obligation with regard to . . . changes to the Firearms Policy." Id. at 21. While acknowledging that the Respondent "might have sincerely believed that it was not obligated to bargain because of the expiration of the 30 day time limit and the ruling by the MSPB judge, that belief does not detract from the willful nature of its failure to meet its obligations under both the Statute and the MOU[.]" Id. In sum, the Judge found that the Respondent's breach was clear and patent and that the bargaining obligation was at the heart of the MOU.

To remedy the violations, which were based in part on a unilateral change in a condition of employment that the Judge found to be substantively negotiable, the Judge ordered a status quo ante remedy. The Judge rejected the Respondent's contention that a status quo ante remedy would impose a burden on management finding no evidence of such an effect in the record. The Judge also addressed the Respondent's claim that ordering a status quo ante remedy "would amount to the `restoration' of the 8 hour remedial firearms training allowance because no employee has ever received more than 8 hours of remedial training." Judge's Decision at 22. The Judge found that such an argument "misses the point[,] and that "[t]he issue of the necessity of the 80 hour allowance may be raised during the course of bargaining." Id. Therefore, the Judge directed the Respondent to restore "to 80 hours as needed the amount of remedial firearms training" available to Basic Trainee Officers and to notify the Union and bargain, on request, prior to implementing changes to the Firearms Policy. Id. at 23.

III. Positions of the Parties

A. Respondent's Exceptions

1. Exceptions Regarding SIG-Sauer Firearm

The Respondent does not except to the Judge's conclusion that the Union waived its right to bargain over the elimination of the SIG-Sauer firearm. However, the Respondent excepts to the Judge's "faulty reasoning [which] could be used as adverse precedent[.]" Exceptions at 12, 19.

More specifically, the Respondent argues that the Judge erred in finding that there was a change in a condition of employment. According to the Respondent, employee concerns regarding the continued use of the SIG-Sauer handgun are issues of personal preference. In addition, the Respondent claims that the Judge erred in finding that the impact of the change was more than de minimis. In the Respondent's view, as "there is no substantive right to carry a personally owned firearm as a duty weapon," there is no foreseeable adverse impact on employees who have not yet purchased such a firearm and no right to reimbursement for those employees who had purchased such a firearm. Id. at 19.

2. Exceptions Regarding Remedial Training

Initially, the Respondent excepts to the Judge's determination that the Respondent failed to raise its limitations defense timely. The Respondent asserts that, contrary to the Judge's finding, the Respondent "expressly referenced" its motion for summary judgment and "clearly and unequivocally" raised in its opening statement at the hearing that the charge was not timely filed. Id. at 9. Based on testimony at the hearing, the Respondent states that

the correction from eighty (80) to eight (8) remedial training hours had been approved by [the] Acting Commissioner
. . . effective May 15, 2001. . . . Thus, it is clear from the undisputed facts of this case that the alleged unfair labor practice occurred, if at all, on May 15, 2001. The charge in this case was filed on August 30, 2002, more than fifteen (15) months after the change in remedial firearms training hours was made effective, therefore the ULP was untimely filed and the complaint based upon the charge should have been dismissed.

Id. at 10.

Next, the Respondent disputes the Judge's finding that there was a change in a condition of employment. The Respondent asserts that "the alteration in the number of remedial training hours was simply a typographical correction to reflect the actual practice of the parties." Id. Based on the Judge's factual findings that "no one had ever received the full eighty (80) hours o[f] remedial training[,]" and "there was no evidence that any basic trainee had ever required more than eight (8) hours of remedial training[,]" the Respondent maintains [ v60 p947 ] that "from 1996 to 2002, the requirement for eighty (80) remedial training hours had existed solely on paper, and had never been implemented or enforced by either party." Id. at 11. As a consequence, the Respondent questions "whether a condition of employment can be `changed' if it never actually existed in practice[,]" citing as the "closest analogous legal precedent" United States Dep't of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA 154 (1991). Id.

The Respondent further argues that the change in the amount of remedial training is not substantively negotiable as it affects management's right to assign work. The Respondent asserts that it has the right to determine the qualifications and skills necessary for employees to perform their duties and that providing 80 hours of remedial firearms training, rather than 8 hours, would delay the assignment of work. The Respondent explains that since firearms training is provided in "two hour blocks each day[,] an additional seventy-two 72 hours of remedial firearms training would require a total of an additional thirty-six (36) training days." Exceptions at 7. The Respondent also maintains that it would be "forced to allocate training resources . . . regardless of whether the trainee would be qualified in the shorter eight (8) hours period." Id. at 17-18.

Furthermore, relying on the Judge's statement that the impact of the change was "speculative," Judge's Decision at 13, the Respondent asserts that there was no obligation to bargain because the change was de minimis. In this connection, the Respondent states that the record evidence showed that there was only one trainee who was terminated after receiving 8 hours of remedial training but that this person was outside the bargaining unit. The Respondent claims that there was no evidence of any actual harm to employees attributable to the change in the Policy.

3. Exceptions Regarding the MOU

The Respondent claims that the Judge erred in finding that the Respondent repudiated the MOU. According to the Respondent, the Judge reached this result based on his finding that, as the MOU restated statutory bargaining obligations which the Respondent violated, the Respondent thereby repudiated the MOU. The Respondent asserts that "the mere fact that the Respondent allegedly failed to give proper notice pursuant to the MOU does not automatically make the contractual violation an unfair labor practice." Id. at 24. The Respondent argues that it had "a sound and arguable basis for believing that the alteration in remedial training hours was not a change in conditions of employment requiring notice to the [Union,]" and "a sound and arguable basis for believing that the notice provided via the [Board] meetings was sufficient to satisfy its obligations under the MOU." Id. at 24, 25. Further, the Respondent claims that the notice provision of the MOU is simply "a procedural matter" and "does not go to the heart of the MOU." Id. at 25.

In addition, the Respondent asserts that although the General Counsel claimed that two provisions of the MOU had been repudiated, the Judge "did not make any factual determination as to which provision he found to have been repudiated." Id. The Respondent states that, even if the Respondent breached the notice provision of the MOU, a single instance of noncompliance with one portion of the MOU does not constitute a repudiation of the MOU. As to another provision of the MOU dealing with clarifications of the Policy in response to inquiries made by field employees, and assuming its applicability, the Respondent maintains that it complied with the requirements contained therein.

4. Exception Regarding Status Quo Ante Remedy

The Respondent claims that the Judge's remedy, requiring that 80 hours of remedial firearms training be provided, constitutes a substantial interference with various management rights. Citing Fed. Corr. Insti., 8 FLRA 604 (1982), the Respondent maintains that it attempted to give notice to the Union of changes to the Policy, that it participated in good faith discussions regarding such changes, that there were no actual adverse consequences, that the "correction" in the amount of remedial training "was simply to correct a longstanding typographical error[,]" and that a requirement to provide 80 hours of remedial training "would force the Respondent to expend excessive and potentially unnecessary hours to train an employee." Exceptions at 28, 29.

B. General Counsel's Opposition

1. SIG-Sauer

The General Counsel asserts that because neither it nor the Respondent excepted to the Judge's conclusion that the Respondent did not violate the Statute by eliminating the SIG-Sauer as an authorized personally-owned weapon, "there is no reason for the Authority to address the Judge's findings and conclusions . . . and the Respondent's exceptions to the Judge's conclusions in that respect are unfounded and should be denied." Opposition at 4. The General Counsel maintains that the Judge's findings may be adopted without precedential significance. [ v60 p948 ]

2. Remedial Training

The General Counsel agrees with the Respondent that the latter's statute of limitations defense was timely raised before the Judge. However, the General Counsel maintains that the charge was timely filed within 6 months after the Union learned of the change in remedial training. In this regard, the General Counsel relies on the Judge's factual findings that: (1) the Union representative did not receive a copy of this change on June 6, 2001 and was not orally informed about it at that time; and (2) the Union was informed of the change on April 3, 2002, when the revised Policy was distributed to Board members.

The General Counsel disputes the Respondent's assertion that the change in the amount of remedial training "occurred `only on paper.'" Opposition at 5 (quoting Exceptions at 10). The General Counsel states that the Judge relied on record testimony and evidence to show that the 1996 Policy provided for 80 hours of training and that such provision resulted from bargaining. The General Counsel further argues that the Respondent's claim that 80 hours of training would extend over a period of 36 days is inconsistent with the 1996 Policy, which provides for remedial training over a two-week period.

The General Counsel also disputes the Respondent's claim that there was not a change in a condition of employment. The General Counsel asserts that the policy of providing 80 hours of remedial training existed in the 1996 Administrative Manual and, further, that the lack of evidence that any employee actually used more than 8 hours of remedial training does not establish a past practice limiting remedial training to 8 hours. In addition, the General Counsel maintains that the record supports the Judge's finding that the reasonably foreseeable impact of the reduction in the amount of remedial training was more than de minimis.

3. MOU

The General Counsel argues that the Judge properly concluded that the Respondent repudiated the MOU. The General Counsel states that the Judge's findings and conclusions are consistent with Authority precedent and are supported by the record.

4. Status Quo Ante Remedy

The General Counsel asserts that a status quo ante remedy is appropriate and necessary.

IV. Preliminary Matters

A. Union's Cross-Exceptions

After the Union filed its cross-exceptions to the Judge's decision, the Authority's Case Control Office issued a show cause order to the Union as it appeared that the cross-exceptions were untimely filed. In its order, the Case Control Office indicated that the due date for filing cross-exceptions was July 19, 2004 and that the cross-exceptions were filed with the Authority on August 2, 2004. It was also noted that the General Counsel had requested, and received, an extension of time in which to file its opposition and/or cross-exceptions but the Union had not made such a request.

In its response to the show cause order, the Union acknowledges that cross-exceptions were due on July 19. However, noting that the General Counsel received an extension of time until August 2 and the Union "concurred in" that request, the Union states that "it should have been regarded as the equivalent of joining in the request for extension of time, and therefore the extension which was granted to the General Counsel should have applied to the Charging Party as well." Response to Show Cause Order at 3. The Union also argues that when the Office of Administrative Law Judges grants motions for extensions of time, the extension applies to all parties. The Union states that it "was under the impression that the same rule applies to extensions granted by the Authority[.]" Id. at 2. The Union adds that "there is nothing in the regulations of the Authority indicating anything to the contrary." Id. Citing Authority precedent, the Union acknowledges that there is "brief mention" of a requirement that the General Counsel and charging parties file separate requests for extensions of time. Id. The Union asserts, however, that these decisions were issued prior to 1999, when the Authority "updated its regulations," and that the Authority did not incorporate that ruling into its procedural requirements. Id. Finally, the Union claims that the filing of its cross-exceptions on August 2 "causes no harm or prejudice to any party or to the Authority." Id. at 3.

We find that the cross-exceptions were not timely filed. In this connection, the record reflects that the General Counsel requested, and received, an extension of time in which to file its opposition and/or cross-exceptions. The Union made no such request and acknowledges that its cross-exceptions were received after the due date.

Section 2423.21 of the Authority's Regulations provides that motions for an extension of time must be in writing, must state the position of the other parties [ v60 p949 ] and must comply with filing and service requirements. In IRS, Philadelphia Service Ctr., 54 FLRA 674 (1998) (IRS), the Authority announced a rule that it would follow to eliminate any confusion regarding extensions of time to file documents with the Authority. The Authority stated, in relevant part, that "for all cases filed after the issuance of this decision, extensions of time to file will be granted only if a party specifically requests such extension." Id. at 681.

Contrary to the Union's contention, nothing in the Authority's revised Regulations, issued subsequent to IRS, affects in any manner the requirement that each party seeking an extension of time must file its own request. It is well established that parties filing actions with the Authority are responsible for being knowledgeable of the statutory and regulatory filing requirements. See, e.g., United States Dep't of Housing and Urban Development, Washington, D.C., 34 FLRA 307, 309 (1990). We find nothing in the Union's arguments that would provide a basis for finding that the cross-exceptions were timely filed. Consequently, we dismiss the cross-exceptions and, as a result, we do not consider the Respondent's opposition thereto. [n6]

B. Respondent's Motion to File Reply Brief to General Counsel's Opposition

The Respondent requested permission to file, and also filed, a reply brief to the General Counsel's opposition under § 2423.40(c) of the Authority's Regulations. In its motion, the Respondent claims that the General Counsel "asserted facts that are unsupported by the current record in an attempt to refute the Respondent's Exceptions, and has also misstated the applicable law in this case." Motion at 1.

The General Counsel filed an opposition to the Respondent's motion. The General Counsel argues that the Respondent's motion fails to comply with the Authority's Regulations. Among other things, the General Counsel asserts that the Respondent failed to receive prior permission from the Authority in advance of filing its brief.

Section 2423.40(c) states that "[r]eply briefs shall not be filed absent prior permission of the Authority." In United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 56 FLRA 706, 706 n.1 (2000), the respondent filed both a reply brief and a request to file the reply brief. Citing § 2423.40(c), the Authority noted that the respondent had not received prior permission to file the reply brief and had not otherwise provided a basis for considering the brief. Consequently, the Authority denied the request.

We reach the same result here. Without deciding whether, in all instances, a party would have to seek advance permission before filing a supplemental submission, we deny the Respondent's request because the Respondent has provided no basis for considering the brief. In this latter regard, all factual matters were set forth on the record and issues pertaining to the applicable legal standard are appropriate for resolution by the Authority, without regard to any asserted misstatements by a party.

V. Analysis and Conclusions

A. Exceptions Regarding SIG-Sauer Firearm

As noted earlier, the Respondent does not except to the Judge's conclusion that there was no violation of the Statute concerning this matter. However, the Respondent excepts to the Judge's findings that there was a change in conditions of employment and that the impact of the change was more than de minimis.

Under § 2423.41(a) of the Authority's Regulations, absent timely filed exceptions, "the findings, conclusions, and recommendations in the decision of the Administrative Law Judge shall, without precedential significance, become the findings, conclusions, decision and order of the Authority[.]" As there were no timely exceptions to the Judge's recommended dismissal of the portion of the complaint pertaining to the SIG-Sauer firearm, that portion of the Judge's decision is, without precedential significance, the decision of the Authority.

Having adopted the Judge's conclusion of no violation, we find it unnecessary to address the Respondent's exceptions set forth above because, even if we were to do so, it would not affect the outcome that we reach. In this respect, the Authority has declined to address exceptions to a judge's decision that would not change the ultimate result. See, e.g., United States Dep't of the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida, 60 FLRA 620, 622-23 (2005) (Member Pope dissenting as to finding of no violation) (unnecessary to resolve exceptions regarding prima facie case where respondent established affirmative defense); United States Dep't of Veterans Affairs, 55 FLRA 1213, 1216 n.4 (2000) (Member Wasserman concurring) (unnecessary to resolve particular exceptions where resolution would not affect the remedy). [ v60 p950 ]

Similarly here, we do not address the Respondent's exceptions pertaining to the elimination of the SIG-Sauer firearm as an authorized personally owned weapon.

B. Exceptions Regarding Remedial Training

1. Timeliness of Charge

In agreement with both the Respondent and the General Counsel, we find that the Judge erred in determining that the Respondent's claim that the charge was not timely filed is barred from consideration. Addressing that claim, we find that the charge was timely filed.

The Judge stated that the Respondent's claim was an affirmative defense that had to be raised prior to the close of the hearing. Finding that the Respondent did not raise the defense until its post-hearing brief, the Judge declined to consider the defense. The Respondent now argues, and the General Counsel agrees, that the defense was timely raised before the Judge, both in the Respondent's motion for summary judgment and at the unfair labor practice hearing. The record confirms that the Respondent raised its claim prior to and at the unfair labor practice hearing. Accordingly, we find that the Judge erred in failing to address the Respondent's claim that the charge was not timely filed.

Section 7118(a)(4)(A) of the Statute requires that a charge be filed within six months of the alleged unfair labor practice. The charge must be "based on events occurring within the six-month period preceding the original charge[.]" United States Penitentiary, Florence, Colorado, 53 FLRA 1393, 1402 (1998). The Authority has recognized that, at times, a charging party may not learn of an alleged unfair labor practice immediately, either due to a respondent's failure to perform a duty owed to the charging party or because of the respondent's concealment of the alleged unfair labor practice. In such circumstances, § 7118(a)(4)(B) of the Statute permits the General Counsel to issue a complaint when the charging party has filed an unfair labor practice charge within six months of discovery of the alleged unfair labor practice. See, e.g., United States Dep't of the Air Force, Williams Air Force Base, Chandler, Ariz., 38 FLRA 549, 560-61 (1990) (failure of agency to provide union with notice of change in working conditions warranted suspension of six month filing deadline for unfair labor practice charge).

In asserting that the charge was not timely filed, the Respondent argues that "the correction from eighty (80) to eight (8) remedial training hours" had been approved by the (Acting) Commissioner on May 15, 2001 and that "the alleged unfair labor practice occurred, if at all, on May 15, 2001." Exceptions at 10. The Respondent adds that since the unfair labor practice charge was filed on August 30, 2002, the charge was untimely filed "and the complaint based upon the cha[r]ge should have been dismissed." Id. The General Counsel argues that the Judge's factual findings support the conclusion that the charge was timely filed.

Whether or not the Respondent is correct that the change was made on May 15, 2001, the Judge found that the Union representative did not receive a copy of the Commissioner's approval of the allotment of remedial firearms training until April 3, 2002, when it was distributed to the Board members. The Respondent does not dispute this factual finding, which is supported by the record as a whole. See, e.g., United States Dep't of Transp., 48 FLRA 1211, 1215 (1993) (when reviewing a judge's factual findings, the Authority reviews the record to determine whether those factual findings are supported by substantial evidence in the record as a whole). The unfair labor practice charge was filed on August 30, 2002, well within the requisite six-month filing period. Accordingly, we find that the charge was timely filed.

2. Remedial Training [n7]

The Respondent asserts that the Judge erred in finding that the change in the amount of remedial training was more than de minimis.

It is well established that prior to implementing a change in conditions of employment, an agency is required to provide the exclusive representative with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain, if the change will have more than a de minimis effect on conditions of employment. See United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999). In applying the de minimis doctrine, 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. See United States Dep't of the Treasury, IRS, 56 FLRA 906, 913 (2000). In determining whether the reasonably foreseeable effects of a change are greater than de minimis, the Authority addresses what a respondent knew, or should have known, at the time of the change. See VA Med. Ctr., Phoenix, Ariz., 47 FLRA 419, 423 (1993) (citation omitted). [ v60 p951 ]

It is also well established that the General Counsel maintains the burden of proving all of the allegations of an unfair labor practice complaint. See United States Dep't of Commerce, Patent and Trademark Office, 54 FLRA 360, 370 (1998), petition denied, NAGE v. FLRA, 179 F.3d 946 (D.C. Cir. 1999) (the General Counsel bears the burden of establishing each and every element of an alleged unfair labor practice in order to establish a violation of the Statute).

In this case, the Judge found that the impact of the change in the amount of remedial training was "somewhat speculative." Judge's Decision at 13. In particular, he found no evidence that any employee had ever received more than 8 hours of remedial training. Nonetheless, he concluded that the reduction in the amount of remedial training available to employees -- from the 80 hours provided in the 1996 Policy to the 8 hours in the revised Policy -- was more than de minimis because, as a general matter, an employee who failed to qualify in firearms proficiency was subject to termination. Id.

Based on substantial evidence in the record as a whole, we find, contrary to the Judge, that the effect of the change in the amount of remedial training in this case was de minimis. Consequently, we find that the Respondent was not obligated to notify the Union and bargain over the change and that its failure to do so did not violate the Statute. See, e.g., United States Dep't of Homeland Sec. Border and Transp. Security Directorate, Bureau of Customs and Border Protection, Washington, D.C., 59 FLRA 728 (2004) (Authority dismissed complaint finding that change in policy concerning boarding of vessels was de minimis).

Our review of the record reveals the following. The Union President testified that one trainee, a probationary employee, was terminated after having received 8 hours of basic firearms training and 8 hours of remedial firearms training. [n8] See Transcript at 42, 68-69. The Union President further testified that this employee would have benefitted from an additional 72 hours of remedial training. See id. at 42. Even assuming that additional firearms instruction would have been beneficial to this employee, the General Counsel failed to establish that this employee was terminated based solely on a failure to satisfy the firearms training requirement. In this connection, there are other requirements that trainees must meet in order to successfully complete their training programs. There is no showing that this particular trainee met those other requirements and would have been retained had the employee been given, and successfully completed, additional firearms training. In addition, in response to whether the President was "aware of any other cases where a basic trainee was terminated after eight hours or remedial training only[,]" the President responded "[s]pecifically, no." Tr. at 70.

Testimony by the Union President regarding the claimed termination of other, unspecified agency employees who were provided only 8 hours of remedial training, see Tr. at 70, also does not establish that the change in this case had more than a de minimis impact on bargaining unit employees. The record reflects that the referenced employees were not in the Union's bargaining unit. Rather, they were in a different bargaining unit. Id. Similarly, the employee involved in the MSPB proceeding referenced at note 4, infra, was not in the Union's bargaining unit. See Tr. at 222. Evidence of any impact on non-bargaining unit employees does not serve to establish an impact on bargaining unit employees. [n9]

We note that, although there was conflicting testimony as to whether any employee had ever actually received 80 hours of remedial training, id. at 68, 175, that fact, even if true, establishes only that there may have been some occasions when employees were provided with that amount of remedial training. That fact alone would not establish that any employees were terminated because they did not receive 80 hours of remedial training or that any employees would have been terminated because they did not receive 80 hours of remedial training.

Finally, in addition to the record discussed above, which addresses actual impact on unit employees, we find no basis on which to conclude that any impact is foreseeable. We are, of course, aware that termination based on an employee's failure to satisfy required job qualifications is a significant matter. However, the Respondent's Policy had been in effect since 1996. Additionally, and as already noted, the General Counsel presented no evidence that any bargaining unit employees were terminated from their positions or otherwise harmed during this time, solely as a result of the [ v60 p952 ] employees' failure to receive 80 hours of remedial training. As such, we would be hard-pressed to conclude that any adverse effects are foreseeable at this point in time. Rather, at most, as the Judge specifically found, such effects are "somewhat speculative." Judge's Decision at 13. See also Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574 (1992) (effect of respondent's decision to discontinue recertification training was speculative).

In sum, based on record evidence, we find that the impact of the change on bargaining unit employees' conditions of employment was not more than de minimis. Accordingly, we find that the Respondent did not violate the Statute, as alleged in the complaint.

C. Exception Regarding MOU

The Judge found that the sole purpose of the MOU was to "restate and reinforce the Respondent's bargaining obligation with regard to . . . changes to the Firearms Policy." Judge's Decision at 21.

Having found, for the reasons set forth above, that the Respondent did not violate the Statute with respect to the changes in the Firearms Policy, we further find that the Respondent did not repudiate the MOU.

VI. Order

The complaint is dismissed. [n10]

File 1: Authority's Decision in 60
FLRA No.
170

File 2: Opinion of Mmeber Pope

File 3: ALJ's Decision

Footnote # 1 for
60
FLRA No. 170

• Authority's Decision

Member Pope's opinion, concurring in part and dissenting in part, appears at the end of this decision.

Footnote # 2 for
60
FLRA No. 170

• Authority's Decision

The Union filed cross-exceptions to the Judge's decision and the Respondent filed an opposition to the cross-exceptions. For the reasons explained below, in Part IV of this decision, we find that the cross-exceptions were not timely filed. Therefore, we dismiss the cross-exceptions and we do not consider the opposition thereto. Additionally, for the reasons explained in Part IV, we deny the Respondent's Motion for Leave to File a Reply Brief to the General Counsel's opposition.

Footnote # 3 for
60
FLRA No. 170

• Authority's Decision

The Respondent submitted documentary evidence to support its assertion that the correct effective date of the allotment of 8 hours of remedial training was May 15, 2001. See Resp. Ex. 16 at 3.

Footnote # 4 for
60
FLRA No. 170

• Authority's Decision

The decision of the MSPB judge is an unpublished decision and is not in the record. However, the FLRA Judge described that decision as having "upheld the Respondent's termination of an employee who was not in the bargaining unit[,]" based on the MSPB judge's finding that the allocation of 80 hours of remedial training was a typographical error. Judge's Decision at 10 n.11. The FLRA Judge declined to accord any weight to the MSPB judge's decision, other than its use in describing the Respondent's motivation for redefining the amount of remedial training.

Footnote # 5 for
60
FLRA No. 170

• Authority's Decision

Section 7118(a)(4)(A) states, with exceptions not relevant here, that "no complaint shall be issued on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority."

Footnote # 6 for
60
FLRA No. 170

• Authority's Decision

We also note that, while acknowledging that the cross-exceptions were filed after the due date, the Union did not request waiver of an expired time limit under § 2429.23(b) and, therefore, we do not address that section here.

Footnote # 7 for
60
FLRA No. 170

• Authority's Decision

For purposes of this analysis, we assume that the 1996 Policy provided for 80 hours of remedial training and the change in the amount of training affected conditions of employment of bargaining unit employees.

Footnote # 8 for
60
FLRA No. 170

• Authority's Decision

The Union President further testified that the Union filed a grievance over the trainee's termination but that the Union "subsequently determined that because the person was a probationer that we would not likely get it in front of an arbitrator that it would be tossed out on jurisdictional grounds." Tr. at 69-70.

Footnote # 9 for
60
FLRA No. 170

• Authority's Decision

We also note that the employee who was affected by a reduction in the amount of remedial training in Dep't of Homeland Security, Bureau of Immigration and Customs Enforcement, 60 FLRA 131 (2004) (Member Armendariz, dissenting in part and concurring in part; Member Pope dissenting in part), was in a different bargaining unit.

Footnote # 10 for
60
FLRA No. 170

• Authority's Decision

In view of this result, there is no need to address the Respondent's remaining exception concerning the Judge's remedy.

Separate opinion of Member Pope (official HTML attachment)

[ v60
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Opinion of Member Carol Waller Pope, dissenting in part:

I agree with the majority that the Charging Party's cross-exceptions should be dismissed, that the Authority should not accept the Respondent's reply brief, and that it is unnecessary to resolve the Respondent's exception regarding the SIG-Sauer Firearm. I also agree that, while the Judge erred in declining to consider the Respondent's claim that the charge was not timely, the charge was in fact timely. In disagreement with the majority, I would find that the Judge correctly held that the Respondent violated the Statute by failing to provide the Charging Party notice of, and refusing to bargain over, the reduction in remedial training hours and by repudiating a memorandum of understanding (MOU) requiring bargaining. To remedy the Respondent's violations, I would order status quo ante relief. Accordingly, I dissent in part.

As an initial matter, I would reject the Respondent's claim that there was no change in the number of remedial training hours. The Judge found -- based on undisputed testimony by the Union President -- that the parties agreed to increase the hours of remedial training from 8 to 80 hours and that, therefore, the requirement for 80 hours' training was not a typographical error. The Respondent has not demonstrated that this finding was in error.

I also would find, contrary to the majority, that the Judge correctly found that the change was not de minimis. The Respondent reduced the number of hours of remedial training involving a critical job skill -- firearms qualification -- by 90 percent. As the Respondent does not dispute that failure to pass firearms qualification results in termination, the effect of the change, on its face, is more than de minimis. Indeed, the effect is more significant than others previously found by to be more than de minimis. See, e.g., United States Dep't of HHS, SSA, Balt., Md., 36 FLRA 655, 668 (1990) (change in seating assignments including move of four employees and one employee's loss of access to a window).

The majority downplays the effect of the change on employees by relying on two factors. First, the majority finds that the GC failed to establish that any employee was terminated "solely" based on failure to satisfy the firearms training requirement. Majority Opinion at 21. Second, the majority finds that the Respondent's termination of several employees after receiving only 8 -- not 80 -- hours' training cannot establish that the change is more than de minimis because those employees were not in the Charging [ v60 p953 ] Party's unit. See id. at 22 n.9. This reasoning is unsound because the two factors the majority relies on are not relevant.

As for the first factor, the disputed change is the reduction in remedial training, not the termination of employees. The fact that employees are terminated -- even in part -- for failure to successfully complete training establishes the significance of the training.

As for the second factor, testimony that any employees were fired after receiving training pursuant to the exact same, changed policy at issue here is relevant to and probative of the issue whether the change will likely affect other employees. The majority's holding to the contrary is both illogical and unsupported by precedent. The majority apparently believes that the Respondent likely will treat employees in the Charging Party's unit differently from others based only on unit membership. I am unwilling to do so, especially since such action would constitute unlawful discrimination against unit employees represented by the Charging Party. See, e.g., United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 36 FLRA 183, 187 (1990) ("Section 7116(a)(1) and (2) prohibits discrimination between bargaining unit and nonbargaining unit employees with respect to conditions of employment based solely on bargaining unit status."). The majority's holding on this point demonstrates its continued "inappropriate willingness to erect barriers to collective bargaining that are inconsistent with the text and purposes of the statute." National Federation of Federal Employees, FD-1, IAMAW, Local 1442 v. FLRA, 369 F.3d 548, 554 (D.C. Cir. 2004).

For the foregoing reasons, I would find that the effect of the reduction in remedial training hours was more than de minimis. I would also find that the Judge erred in concluding that remedial training does not affect management's rights and that the change was substantively negotiable. See, e.g., NTEU, 45 FLRA 339, 358 (1992). Nevertheless, as the Respondent was required, but failed, to provide the Charging Party notice and opportunity to bargain over the impact and implementation of the change, the Judge did not err in finding that the Respondent violated the Statute. See Fed. Bureau of Prisons, Fed. Corr. Inst., Bastrop, Tex., 55 FLRA 848, 852 (1999) (Chair Segal concurring). Applying Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), I would order status quo ante relief. [*]

Finally, I would find that the Respondent repudiated the MOU, albeit for reasons different from the Judge's. In this connection, the Judge resolved the repudiation claim by applying the -- incorrect -- standard for determining whether a "willful" violation occurred for the purposes of assessing status quo ante relief. See Judge's Decision at 21. Applying the correct standard, I would find that the Respondent committed a clear and patent breach of the MOU. As relevant here, the MOU requires the Respondent to provide the Charging Party with notice and an opportunity to bargain "to the fullest extent allowable under law and Executive Order(s)" prior to implementing "any changes in the Service Firearms Policy." Judge's Decision at 5-6. The Respondent failed to do this, and it has offered no reasonable interpretation of the MOU justifying its failure. Moreover, it is clear that the breach went to the heart of the MOU.

For the foregoing reasons, I would find that the Respondent violated the Statute by failing to bargain over the change in remedial training and by repudiating the MOU. I also would uphold the Judge's order of status quo ante relief. Accordingly, I dissent in part.

File 1: Authority's Decision in 60 FLRA No. 170

File 2: Opinion oF Member Pope

File 3: ALJ's Decision

Footnote * for
60
FLRA No. 170

• Opinion of Member Pope

The Judge's erroneous finding that the Respondent was required to bargain over the substance of the change resulted in the Judge applying the incorrect standard for determining status quo ante relief. See United States Dep't of the Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Willow Grove, Pa., 57 FLRA 852, 857 (2002) (status quo ante relief is assessed under different standards depending on whether substance, or impact and implementation, bargaining is involved) (Member Pope dissenting as to application).

Administrative law judge decision (official HTML attachment)

[ v60
p954 ]

Office of the Administrative Law Judges

U.S. DEPARTMENT OF HOMELAND

SECURITY, BORDER AND

TRANSPORTATION SECURITY

DIRECTORATE, BUREAU OF CUSTOMS

AND BORDER PROTECTION

WASHINGTON, D.C.

Respondent

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

NATIONAL BORDER

PATROL COUNCIL, AFL-CIO

Charging Party

Case No. WA-CA-02-0811

Alfred Gordon

For the General Counsel

Philip Carpio

For the Respondent

Deborah S. Wagner

For the Charging Party

Before: PAUL B. LANG

Administrative Law Judge

DECISION

Statement of the Case

On August 30, 2002, the American Federation of Government Employees, National Border Patrol Council, AFL-CIO (Union or Council) filed an unfair labor practice charge against the U.S. Department of Justice, Immigration and Naturalization Service (Respondent). [n1] On July 17, 2003, the Acting Regional Director of the Washington Region of the Federal Labor Relations Authority (Authority) issued a Complaint and Notice of Hearing in which it was alleged that the Respondent committed an unfair labor practice in violation of §7116(a)(1) and (5) the Federal Service Labor-Management Relations Statute (Statute) by implementing changes in its policy regarding the types of authorized personally owned handguns that employees could use and the number of hours of remedial training to which employees were entitled after failing to complete firearms qualification. It was also alleged that the Respondent committed an unfair labor practice in violation of the same provisions of the Statute by repudiating a memorandum of understating (MOU) with the Union.

On September 16, 2003, the Regional Director of the Washington Regional Office issued an order transferring the case to the Boston Regional Office.

On November 28, 2003, the Respondent filed a motion for summary judgment which was denied.

A hearing was held in Washington, DC on January 22, 2004. Both parties were present with counsel and were afforded the opportunity to present evidence and to cross-examine witnesses. This Decision is based upon consideration of the evidence, including the demeanor of witnesses, and of the post-hearing briefs submitted by the parties.

Preliminary Issue

The General Counsel has filed a motion to strike portions of the Respondent's post-hearing brief which refer to a ruling by a judge of the Merit Systems Protection Board (MSPB) and to the Respondent's rationale in making the disputed changes to its firearms policy. The General Counsel's motion is based upon the proposition that the Respondent is referring to factual matters which are not in evidence. The Respondent has opposed the motion.

The General Counsel seeks to have stricken certain references by the Respondent to a ruling by an MSPB judge in an appeal initiated by an Other Than Permanent Employee who was not in the bargaining unit represented by the Union. The MSPB judge had upheld the employee's termination by the Respondent, stating that the provision for the purported increase in remedial firearms training from 8 to 80 hours was a typographical error upon which the employee was not entitled to rely.

Although the Respondent did not cite its Exhibit 3 in its post-hearing brief, the fourth and fifth unnumbered pages of that document generally refer to the MSPB ruling. That reference is sufficient to bring the ruling into evidence. Accordingly, the Respondent is entitled to refer to it in its post-hearing brief.

The statement of the Respondent's rationale in changing its firearms policy is reflected in GC Exhibit 6 (incorrectly cited in the Respondent's post-hearing memorandum). Therefore, the Respondent is also entitled to rely on that portion of the evidence.

The General Counsel's motion to strike is denied. [ v60
p955 ]

Positions of the Parties

The General Counsel maintains that the Respondent improperly implemented changes in its policy regarding the weapons that certain of its employees are authorized to carry without affording the Union the opportunity to request bargaining prior to implementation. The Respondent similarly failed to meet its obligations under the Statute by effecting a change in the allowance of remedial firearms training from 80 to 8 hours without giving the Union prior notice and an opportunity to engage in pre-implementation bargaining. [n2]

The General Counsel further maintains that Respondent's policy changes have a foreseeable impact on the working conditions of bargaining unit employees that is greater than de minimis.

The General Counsel also argues that the Respondent's actions constitute a repudiation of an MOU which obligates the Respondent to negotiate with the Union prior to the implementation of any change in the Firearms Policy. The Respondent's repudiation of the MOU is an unfair labor practice in view of the fact that the breach was clear and patent and that the repudiation goes to the heart of the parties' agreement.

Finally, the General Counsel maintains that the circumstances of this case justify the imposition of a status quo ante remedy.

The Respondent

The Respondent maintains that the Union waived its right to bargain over the policy changes when it failed to request bargaining within thirty days of its receipt of notice as required by the collective bargaining agreement. The Union received adequate pre-implementation notice by virtue of the fact that its Executive Vice President was a voting member of the Firearms and Force Board which was responsible for developing the policy changes.

The Respondent also maintains that the unfair labor practice charge was not filed within six months of the alleged commission of the unfair labor practices as is required by §7118(a)(4)(A) of the Statute.

In addition, the Respondent argues that it did not violate or repudiate the MOU.

Alternatively, the Respondent maintains that, regardless of whether it provided the Union with adequate notice of the changes, it is not obligated to bargain substantively over the provisions of its policy regarding authorized weapons and remedial training time. Furthermore, those provisions are not subject to impact and implementation bargaining since neither the Union nor the General Counsel have identified any proposals which are legitimately negotiable and it is the position of the Respondent that no such proposals exist.

The Respondent also maintains that the provisions at issue are nonnegotiable because there is no action or foreseeable impact on conditions of employment that would be greater than de minimis. In fact, the purported change from 80 to 8 remedial training hours is not a change at all, but merely a correction of a typographical error which was not preceded by any bargaining.

Finally, the Respondent argues that a status quo ante remedy would be contrary to law inasmuch as it would directly and substantially interfere with the Respondent's exercise of its management rights. Furthermore, such a remedy would be meaningless since it would result in the restoration of the provision for 8 remedial training hours such as was in effect prior to the occurrence of the typographical error.

Findings of Fact

The Respondent is an agency as defined in §7103(a)(3) of the Statute. The Union is a labor organization as defined in §7103(a)(4) of the Statute and is the exclusive representative of a unit of the Respondent's employees which is appropriate for collective bargaining.

Pertinent Agreements

At all times pertinent to this case the Union and the Respondent were parties to a collective bargaining agreement (CBA) (Jt. Ex. 1). [n3] Article 3A of the CBA provides that, within 30 calendar days of notification of proposed changes to rules, regulations and practices at the national level, the Union is to serve notice to the Respondent of its intent to negotiate. [n4] The Union will then present its written proposals within 10 calendar days and negotiations will commence during the following [ v60 p956 ] calendar week. The agreement further provides that, "In the absence of timely Union proposals Management will have no obligation to enter into negotiations." (Jt. Ex. 1 at 4)

On April 4, 1996, the parties [n5] executed a MOU (Jt. Ex. 7). The MOU was to remain in effect for the life of the Respondent's Firearms Policy (Jt. Ex. 8) which had been modified on the same date. The MOU provides, in pertinent part, that:

The Union Councils shall be notified in accordance with the provisions of their respective Collective Bargaining Agreements and provided an opportunity to bargain to the fullest extent allowable under law and Executive Order(s) prior to the implementation of:

---

(3) any changes in the types of Service-approved personally-owned handguns;

---

(11) any changes in the Service Firearms Policy.

The Firearms and Force Board

On December 27, 2000, the Respondent, by its Acting Commissioner, issued the Charter of the Firearms and Force Board (Board) (Jt. Ex. 2). The Board was given the responsibility of:

conduct[ing] analysis and mak[ing] recommendations concerning:

development and oversight of the INS firearms and force program;

policy on the use of firearms or the use of deadly and non-deadly force by INS officers;

selection and acquisition of specific firearms for use or carry by INS officers;

training and qualification requirements and standards for the use of firearms by INS officers;

training and qualification requirements and standards for the use of deadly and non-deadly force by INS officers; and

clarification of issues relating to the use of firearms or the use of deadly and non-deadly force by INS officers.

The charter further provided that:

The Board is a recommending body to oversee the development of all policy for firearms and use of force within the INS. All Board recommendations should be achieved through consensus among members. When consensus cannot be reached, the Board will present each specific option for consideration. The Board member(s) presenting an option for consideration shall provide their option in the form of a recommendation to the Board Chair.

When there is consensus, the Board Chair on behalf of the Board will prepare a formal recommendation memorandum, presenting the Board's recommendation(s). This recommendation memorandum will be sent to the Executive Associate Commissioner (EAC) or management team member who is responsible for implementation of the recommendation. The responsible INS executive will coordinate the proposed recommendation(s) with the Firearms and Force Executive Committee (the Committee) using this memorandum. The Committee includes the Executive Associate Commissioners (EACs), the Director of Internal Audit, the Chief of the Border Patrol, and the General Counsel, or their permanent designee(s).

---

All approved actions [by the Committee] will be sent to the Deputy Commissioner for concurrence prior to implementation. The Board Chair will prepare the concurrence memorandum. A copy of each decision memorandum, with the Deputy Commissioner's concurrence, will be maintained by the Board Chair and copies forwarded to each member of the Committee.

The Chief of Firearms and Force Policy, Office of Programs, was designated as the Chair of the Board. If that position were vacant, the Executive Associate Commissioner for Programs, or his or her designee, would act as the Chair. The Board itself was to consist of one member from each of 11 programs or offices, each of which was to perform a specific function. One of the [ v60 p957 ] members was to be a representative of the Office of Labor-Management Relations whose function was "Union and Contract." In addition,

Consistent with the purpose and intent of partnership, the National INS Council and the National Border Patrol Council will each be invited to designate one representative to attend each meeting of the Board.

Although the charter does not define the status of the union representatives, they were allowed to vote and to fully participate in the activities of the Board as if they were members. In addition, the union representatives were on the distribution list for all communications to Board members.

At all times pertinent to this case the Union was represented on the Board by Richard Pierce, its Executive Vice President. Pierce represented the Union on the Board for about two years, after which the Union withdrew its participation. According to Pierce, the Union withdrew because of its feeling that the Respondent was using the Union's participation in an attempt to circumvent the requirement of formal notice of proposed changes to the Firearms Policy.

Changes to the Firearms Carry Policy

The following is a chronology of developments which led to a change to the Respondent's policy concerning personally-owned handguns:

April 27, 2001 - the Executive Committee (Committee) directed the Board to recommend changes to the firearms carry policy.

May 9, 2001 - the Board discussed the possibility of the elimination of the SIG-Sauer handgun as an authorized personally-owned weapon which could be carried by uniformed officers while in a duty status. [n6] There was a consensus that no new approvals would be granted for the SIG-Sauer, but that current approvals would remain in effect.

May 10, 2001 - Board members received a draft of a proposed recommendation to the Committee (Resp. Ex. 12).

May 12, 2001 - Pierce informed Michael Sheehan, the Board Chair, and the other Board members by e-mail (Resp. Ex. 13, 14) that the Union would agree to a cessation of new authorizations for the SIG-Sauer if the H&K USP40 handgun (H&K) were authorized for use as a personally-owned weapon.

May 15, 2001 - the Committee made recommendations to the Acting Commissioner which included the termination of the SIG-Sauer as an approved handgun for personal purchase. Individual authorizations currently approved would terminate as of June 30, 2003. The Committee also directed the Board to submit additional recommendations (Resp. Ex. 15 at 4, 5).

May 31, 2001 - Sheehan distributed to Board members copies of the Committee's determinations by e-mail (Resp. Ex. 15).

June 6, 2001 - the Board met to discuss the Committee's determinations and to recommend certain changes. Pierce attended the meeting and stated that the Union expected to receive notice and an opportunity to bargain over proposed changes to the Respondent's Firearms Policy.

June 7, 2001 - Sheehan sent an e-mail to Board members along with the Board's recommended modification of the Committee's determinations (Resp. Ex. 18). The Committee did not modify the provision for the termination of authorizations for the SIG-Sauer.

July 13, 2001 - the Committee issued a determination that certain policies be recommended for approval by the Acting Commissioner. Among the Committee's recommendations were:

The SIG-Sauer P229 handgun will no longer be a Service-approved handgun authorized for personal purchase. The individual authorizations currently approved will terminate in CY 2003 on a date to be determined after the Service completes its bargaining obligations with the Councils.

(Resp. Ex. 19 at 4)

August 22, 2001 - the Board reviewed the Committee's determination of July 13, 2001.

On February 25, 2002, Sheehan forwarded to Board members, including Pierce, by e-mail a copy of Appendix 1B to the Respondent's Firearms Policy (GC Ex. 6). The document had been approved by Deputy Commissioner Mike Becraft on February 14, 2002, to be effective as of the same date. Paragraph B states that:

The SIG-Sauer P229 Double-Action-Only handgun is no longer authorized for personal purchase. [ v60 p958 ] As of the effective date of this Appendix 1B, no additional SIG-Sauer P229 Double-Action-Only handgun will be authorized. The individual approved authorizations in effect prior to this Appendix 1B will terminate in Calendar Year 2003. [n7]

The change was to go into effect "as soon as possible." [n8]

Changes to the Remedial Firearms Training Allowance

The following is the chronology of events leading to the alleged change of hours of remedial firearms training for Basic Trainee Officers: [n9]

January 18, 2001 - during the course of a Board meeting Sheehan presented a written proposal that the INS Firearms Policy (Policy) be modified to provide for 8 hours of remedial firearms training (GC Ex. 2). [n10] The proposal reflected the Respondent's contention that the purported change from 8 to 80 hours was the result of a typographical error. [n11] Pierce stated that the allowance of 80 hours of remedial training had been negotiated by the Union and the Respondent and could not be changed without additional negotiations.

T.J. Bonner, the President of the Union, testified without challenge that the change from 8 to 80 remedial training hours occurred after extensive bargaining over the better portion of a week. He also testified that, after the bargaining had been completed, he was approached by Doug Calvert (presumably a management representative of the Respondent) who told him that, "our bosses have a problem" with the increase to 80 hours. Bonner told Calvert that the Union would not revisit the issue (Tr. 36-41).

June 6, 2001 - Sheehan allegedly informed the Board that the Commissioner had approved the "correction" to the remedial training allotment and that it had gone into effect on May 5, 2001.

Both Pierce and Bonner testified that they did not receive notice of the Commissioner's approval of the change until shortly before the hearing. Sheehan testified that copies of the approved change were distributed to Board members, including Pierce, at the meeting.

Although the evidence is not absolutely clear on this point, I find as a fact that Pierce did not receive a copy of the approved change on June 6, 2001, nor was he orally notified of the change on that date. The basis for this finding is that the approval of the change by the Commissioner does not appear either on the written agenda that Sheehan distributed prior to the meeting of the Board (Resp. Ex. 15 at 3) or in Sheehan's handwritten notes which he made during and after the meeting (Resp. Ex. 16 at 2). I find it significant that Sheehan made a note that, "PepperBall Pilot test approved by Acting Commissioner 6/4/01." Since Sheehan made a note of that approval by the Acting Commissioner, it is likely that he would have made a similar note if there had been any discussion of the approval of a change in the Firearms Policy. Furthermore, Sheehan acknowledged during cross-examination that he might not have e-mailed a copy of the revision in question to the Union (Tr. 236).

The Respondent's Promulgation of the Changes

On March 1, 2002, the Respondent formally issued the Policy (Jt. Ex. 3). The revised policy contained all changes that had occurred since the issuance of the 1996 policy, including the change of remedial firearms training time from 80 to 8 hours and the phase-out of the SIG-Sauer as an authorized personal-purchase weapon as set forth in Appendix 1B. There is no evidence either as to how the revised Policy was distributed or as to the Respondent's standard procedure in promulgating changes to its policies.

On April 3, 2002, the Policy was distributed to Board members. At that time, Pierce stated that it would be necessary to negotiate concerning the changes [ v60 p959 ] contained in the Policy. He apparently did not state that he was not authorized to receive notice of the change on behalf of the Union.

By letter dated April 26, 2002 (Jt. Ex. 4), Robert S. Sherman, Respondent's Chief of Labor and Employee Relations, Policy Section, provided Bonner with a copy of the revised Policy along with a purported summary of the changes. In his summary, Sherman included the following reference to Section 23(C)(2)(b):

Provides that individual basic trainee officers who fail in one of the Academies to qualify with a handgun will be provided eight additional hours of remedial training.

The summary also refers to Appendix 1B with the statement, "Lists all approved firearms."

In his letter Sherman also stated that the Union, through its representation on the Board, had received adequate advance notice of the changes and had not made a timely request to bargain on any of the proposed changes. Therefore, according to Sherman, the Union had waived its right to bargain.

Sherman's letter was stamped as received on May 18, 2002, along with a notation of a certified receipt number. The Respondent has not challenged the accuracy of the stamped date of receipt.

By letter dated June 17, 2002, (exactly 30 days from the Union's receipt of Sherman's letter) from Bonner to Catherine J. Kasch, Assistant Commissioner, Human Resources and Development (Jt. Ex. 5), the Union acknowledged receipt of Sherman's letter. Bonner expressed strong opposition to the Respondent's position. He stated that the Union had not received adequate notice of the policy changes and demanded that the Union be afforded the opportunity to bargain to the fullest extent allowable by law. Bonner's letter also set forth proposals for the modification of the Policy, a request for a copy of Chapter 15 of the INS Personal Property Operations Handbook and a demand that the Policy be rescinded pending the completion of bargaining.

By letter of July 29, 2002, from Margie Aira for C. Rick Hastings, Acting Assistant Commissioner, Human Resources and Development, to Bonner (Jt. Ex. 6), the Respondent provided a copy of the requested document, but reiterated its rejection of the Union's demand for the recission of the Policy and for bargaining.

The Impact of the Changes

The impact of the elimination of the SIG-Sauer as an authorized personally owned weapon is obvious. Employees who, for whatever reason, chose to expend personal funds for the weapon are no longer authorized to carry it and must either purchase another weapon or carry the Beretta which is the standard issue handgun. There is no evidence as to how many employees had purchased the SIG-Sauer. Regardless of the number, there can be little doubt that at least some employees considered the SIG-Sauer to be sufficiently superior to the Beretta to justify the cost. Furthermore, the fact that, even after the elimination of the SIG-Sauer, employees are allowed to purchase certain handguns for use in lieu of the standard issue weapon indicates that the parties recognize that the exercise of personal choice in weapons, however limited, is a matter of importance to at least some employees.

The impact of the reduction of remedial training hours is somewhat speculative. There is no evidence that any employee has yet required the full 80 hours of remedial training, nor is there any evidence as to whether any employee has required more than 8 hours of remedial training. However, it is undisputed that a Basic Trainee Officer who does not eventually qualify in firearms proficiency, after whatever amount of remedial training is authorized, is subject to termination.

In view of Bonner's undisputed testimony as to the bargaining that led to the increase of remedial training hours from 8 to 80, I find as a fact that the provision for 80 hours in the 1996 Firearms Policy was not a typographical error and that the subsequent reduction back to 8 hours was a substantive change. This finding is further supported by the fact that the Respondent made no effort to correct the alleged error until after the ruling by the MSPB judge approximately three years later.

The Past Practice as to Notice

Bonner testified that, although the CBA is silent as to the form of notice, there is a longstanding practice whereby the Respondent has provided the President of the Union with written notice of proposed changes. According to Bonner, this practice predates his tenure in office of fifteen years. During that time no other Union representative has been designated to receive notice of changes at the national level, nor has the Union ever acquiesced to any other method of notice (Tr. 26, 27).

On cross-examination, Bonner acknowledged that the local president in San Diego had forwarded to him a notice from the Respondent that involved a change to the national non-deadly force policy which involved the [ v60 p960 ] so-called "Pepperball pilot program". Bonner responded to the notice (Tr. 58, 59; Resp. Ex. 5 at 2). Although Bonner characterized the notice as misdirected and intended by the Respondent as involving a local change, there is no evidence that he protested the form of the notice or that he took any action to prevent another such "misdirection". [n12]

Robert Stamerra, a Labor Relations Advisor for the Respondent and a member of the Board since March of 2002, testified that his office would customarily send notices on national issues in writing to Bonner. Stamerra also testified that he had no experience with "specially chartered organizations" other than the Board and that his experience did not include the transmittal of notices via an organization such as the Board. On the contrary, his experience was limited to "routine notices from Headquarters" (Tr. 141-146). [n13]

In considering the evidence as a whole, it appears likely that, while most of the notices regarding national issues might have been directed in writing to Bonner, there was no hard and fast rule to that effect, especially as to matters within the purview of the Board. Furthermore, the evidence shows that subordinate Union officials, including Pierce and the local president in San Diego, kept Bonner informed of proposed changes which they felt should be negotiated at the national level. [n14]

Discussion and Analysis

The Respondent Did Not Raise Its Limitations Defense In A Timely Manner

In U.S. Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 52 FLRA 527, 534 (1996) the Authority held that §7118(a)(4) of the Statute [n15] is the equivalent of a statute of limitations. As such, it is an affirmative defense which must be raised prior to the close of the hearing. The Respondent failed to raise its limitations defense either in its Answer to the Complaint, its motion for summary judgment or its opening statement at the hearing (Tr. 17-19). As such, Respondent is barred from raising the limitations defense for the first time in its post-hearing brief.

The Changes Affected Conditions of Employment

In Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986) the Authority held that, in determining whether a matter involves a condition of employment, it will consider (a) whether it pertains to bargaining unit employees, and (b) whether there is a direct connection between the matter and the work situation of those employees. It is undisputed that the elimination of the SIG-Sauer as an authorized weapon pertains to bargaining unit employees, thus satisfying the first of the Antilles criteria.

As to the second criterion, it is clear that proficiency in the use of an authorized handgun is an essential job skill of bargaining unit employees. This is borne out by the fact that employees are required to demonstrate the required proficiency, both at the end of their initial training and periodically throughout their careers. [n16] That fact, plus the possibility that employees might find themselves in life-threatening situations, supports the proposition that the choice of weapons has a direct connection to the work situation of bargaining unit employees.

The Union does not challenge the right of the Respondent to maintain a list of firearms which are approved for the use of its employees. However, that is not to say that bargaining unit employees are not legitimately concerned with the choice of weapons available to them. Bonner testified that an employee's choice of a weapon might be influenced by such factors as the fit of the weapon in his or her hand, the smoothness and length of the trigger pull, the recoil and the way the slide mechanism recoils (Tr. 48). Contrary to the Respondent's assertions, consideration of those factors are more than "mere idiosyncracies." There is, as the Respondent maintains, no evidence as to the actual differences, if any, between the SIG-Sauer and the authorized weapons. Such evidence, if offered, would be irrelevant since it is not for the Authority to assess the merits of the bargaining positions of the respective parties. The fact that some employees are willing to spend [ v60 p961 ] personal funds as an alternative to using the issued weapon indicates that the effect of the choice of weapons is real and that it is greater than de minimis. Therefore, the elimination of the SIG-Sauer also satisfies the second of the Antilles criteria.

The Respondent does not challenge the proposition that the reduction in remedial firearms training hours affects bargaining unit employees, thereby satisfying the first of the Antilles criteria. While the Respondent does not deny that the possibility of involuntary termination affects the work situation of bargaining unit employees, it argues that no employee has ever used the full 80 hours and that Bonner could not identify the employee who allegedly needed more than 8 hours of remedial training to qualify. Therefore, according to the Respondent, the reduction of remedial training hours has no effect, or a de minimis effect, on working conditions.

In determining whether a change in procedure has more than a de minimis effect on conditions of employment, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change, United States Department of the Air Force, Air Force Materiel Command, 54 FLRA 914, 919 (1998). It is undisputed that the failure of a Basic Trainee Officer to complete firearms qualification may lead to his or her termination. Furthermore, there is evidence that a nonmember of the bargaining unit has been terminated because of his failure to qualify after 8 hours of remedial firearms training (Resp. Ex. 17; Tr. 69). That evidence leads to the conclusion that the reduction of remedial firearms training is above the de minimis level in its foreseeable effect on the work situation of bargaining unit employees and that the second of the Antilles criteria has been satisfied. [n17] Therefore, the reduction in remedial firearms training is a change in conditions of employment.

The Union First Received Notice of the Elimination of the SIG-Sauer on February 25, 2002

A union's receipt of adequate notice of a proposed change in working conditions triggers its responsibility to request bargaining. In order to be deemed adequate the notice must give the union information as to the scope and nature of proposed change, the certainty of the change and the planned timing, U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 82 (1997)(Corps of Engineers).

The Authority has also held that the obligation of an agency to give notice of proposed changes to a union includes the requirement that the notice be directed to the individual designated by the union, United States Department of the Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Willow Grove, Pennsylvania, 57 FLRA 852, 855 (2002) (Willow Grove). However, in this case the Union did not inform the Respondent that notices of proposed changes should be in writing and directed exclusively to Bonner. Furthermore, as shown above, the evidence does not support the General Counsel's contention that there was a binding past practice to that effect. Pierce was selected by the Union to be its representative on the Board and, by Bonner's own testimony, he used Pierce to communicate the Union's position to the other Board members. Therefore, even if Pierce was not actually authorized to receive notice on behalf of the Union, his position with relation to the Board, and the fact that he was the Executive Vice President of the Union, indicates that he at least had apparent authority to receive notice with regard to matters which were within the purview of the Board. [n18]

On February 25, 2002, Sheehan provided Board members, including Pierce, with copies of Appendix 1B to the Firearms Policy, thereby informing them that the document had been approved by the Respondent through the Deputy Commissioner on February 14, 2002. Although there was no specific date on which the revision was to be implemented, it was indicated that the change, which included the elimination of the SIG-Sauer handgun, would go into effect as soon as possible. Therefore, the Union, through Pierce and Bonner, could have had no legitimate doubt concerning the action which it had to take to preserve its right to bargain.

This is not to say that Pierce's knowledge of the recommendations of either the Board or the Committee constituted notice to the Union. In this case, however, Pierce was informed of a final decision by the Respondent and his knowledge was binding on the Union. [ v60 p962 ]

The Union First Received Notice of the Reduction in Remedial Training Time on April 3, 2002

The Respondent correctly asserts that the central issue of when the Union received notice of policy changes does not hinge on whether the deliberations of the Board constituted collective bargaining. Nevertheless, an examination of the Board's operations is relevant to a determination of the earliest date on which the Union received adequate notice so as to trigger its obligation to request bargaining and to submit proposals. [n19]

Both the charter of the Board and the evidence of its deliberations indicates that its intended and actual purpose was to make recommendations to the Respondent as to possible changes in its policies regarding firearms and nonlethal force. The Union had no contractual or statutory right to participate in the Board's activities, but was invited by the Respondent to send a representative, presumably in the hope of forestalling requests to bargain over changes in policy arising out of the Board's recommendations. Therefore, in the absence of notice that a policy had been finally approved by the Respondent (such as occurred on February 25, 2002, with regard to Appendix 1B), the Union, through Pierce's membership on the Board, could only have been advised of the possibility, or at the most the likelihood, that a change would be proposed by the Respondent. Such information falls short of the standards for adequate notice as set forth in Corps of Engineers and its progeny. Even if the Board's recommendations were eventually approved by the Committee and then the Commissioner or his designee, the Union would not have been advised either of the certainty or the expected timing of the change until such final approval had occurred.

It was not until April 3, 2002, that the revised Policy was distributed to the Board along with notice that it had gone into effect on March 1, 2002. The Respondent is correct in its assertion that the Policy incorporated changes that had previously gone into effect. However, unlike the revocation of the authorization for the SIG-Sauer, the Union had not received prior notice of the reduction of remedial training hours.

The Union Waived Its Right to Bargain Over the Elimination of the SIG-Sauer

A union=s receipt of adequate notice of a proposed change in working conditions triggers its responsibility to request bargaining, U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 82 (1997). Moreover, the Authority has recognized the validity of contractually imposed time limits on the exercise of rights conferred by the Statute, Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1536 (1996).

The Union received notice of the elimination of the SIG-Sauer on February 25, 2002, which was before the change was implemented. In spite of that notice the Union did not request bargaining or submit proposals until June 17, 2002. Since that request occurred more than 30 days after the receipt of adequate notice, the Union is considered to have waived its right to bargain over the change. [n20]

Sherman's letter to Bonner of April 26, 2002, was, in effect, a "second notice" or a confirmation of the Respondent's position. It does not detract from the significance of the prior notices of February 25 and April 3, 2002.

The Union Did Not Waive Its Right to Bargain Over the Reduction of Remedial Training Hours

In order for a notice to be considered adequate it must, in the absence of emergency conditions, be timely, that is, it must be given prior to the implementation of the proposed change. This requirement applies even when the proposed change is an exercise of a management right under §7106 of the Statute, Willow Grove, 57 FLRA at 855.

The cited language of the CBA and the MOU operates as a waiver of the right to bargain over national issues if the Union does not request bargaining within 30 days after the receipt of notice. However, it does not operate as a waiver of the Union's right to receive timely notice in the first place. Stated otherwise, a union's duty to request bargaining, whether or not defined by contractual language, is only triggered by receipt of adequate and timely notice, Willow Grove. The Respondent's failure to give the Union timely [ v60 p963 ] notice is, in itself, an unfair labor practice in violation of §7116(a)(1) and (5) of the Statute.

The application of the Statute is not contingent upon a timely request to bargain. Since the Union did not receive timely pre-implementation notice of the reduction of remedial training hours, it was not required to request bargaining in the first place, United States Department of Justice, Immigration and Naturalization Service, Southern Region, El Paso, Texas, 11 FLRA 90, 101 (1983). Accordingly, it is of no consequence that the Union's request for bargaining was made beyond the 30 day time limit, nor is it necessary to address the issue of the negotiability of the Union's proposals.

The Reduction of Remedial Training Hours Was Not an Exercise of a Management Right

The General Counsel does not contest the proposition that the Respondent is not required to substantively negotiate the removal of the SIG-Sauer from the list of authorized handguns. However, the General Counsel maintains that the remedial training allowance is not a management right.

The Respondent relies upon National Association of Government Employees, Local R1-203 and U.S. Department of the Interior, U.S. Fish and Wildlife Service, Hadley, Massachusetts, 55 FLRA 1081 (1999) (Interior) in support of its argument that proposals to assign training to employees affect management's right to assign work within the meaning of §7106(a)(2)(B) of the Statute. A review of that case indicates that it is readily distinguishable from the circumstances of the instant case. In Interior the Authority considered the negotiability of a proposal that would have required the agency to select retrainable candidates for bargaining unit positions from lists of former bargaining unit employees. The Authority's rationale in finding the proposal nonnegotiable was that it would have interfered with the agency's right to assign work.

Unlike the situation in Interior, even a total restoration of the 80 hour remedial training allowance, much less some other adjustment to the time allotted, would only delay the firing of a Basic Trainee Officer until he or she has been given an additional opportunity to qualify in the use of the service-issued handgun. [n21] The Respondent has not been asked to change the standards for qualification, to hold jobs open or to retain employees who cannot meet the standards. Therefore, the amount of remedial firearms training available to Basic Trainee Officers is not a management right and is substantively negotiable.

Even if the establishment of a remedial training allocation were a management right, it should not be assumed before negotiations begin that the Union could not propose appropriate arrangements to alleviate the adverse impact of the policy on members of the bargaining unit.

The Respondent Repudiated the MOU

The Authority has long held that not every breach of a collective bargaining agreement [n22] is a violation of the Statute, but that a repudiation of an agreement does violate the Statute. The Authority has adopted a two-prong test in this regard. First, is the violation of the agreement clear and patent and, secondly, does the violation go to the heart of the agreement? Even a single breach of an agreement may amount to an unfair labor practice if the relevant criteria are met, Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211, 1218 (1991) (Warner Robins).

In determining whether a breach is clear and patent, it is necessary to determine whether there was a violation of the agreement in the first place, and then to determine whether the violating party acted according to a reasonable interpretation of the agreement, United States Department of the Air Force, Seymour Johnson Air Force Base, 57 FLRA 772, 774 (2002). In agreeing to the MOU, the Respondent accepted the bargaining obligations which were already imposed on it by §7116(a)(1) and (5) of the Statute. Therefore, a violation of the Respondent's bargaining obligation under the Statute was a per se breach of the MOU. In not giving the Union advance notice of the reduction of remedial firearms training time, which had been incorporated into the revised Firearms Policy, the Respondent violated both the Statute and the MOU. While the Respondent might have sincerely believed that it was not obligated to bargain because of the expiration of the 30 day time limit and the ruling by the MSPB judge, that belief does not detract from the willful nature of its failure to meet its obligations under both the Statute and the MOU, U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 56 FLRA 9, 13 (2000). Therefore, the Respondent's breach of the MOU was clear and patent. [ v60 p964 ]

The sole purpose of the MOU is to restate and reinforce the Respondent's bargaining obligation with regard to, among other subjects, changes to the Firearms Policy. Stated otherwise, the Respondent's obligation to bargain over changes to the Firearms Policy is at the heart of the MOU. Accordingly, the Respondent's failure to meet its bargaining obligation constitutes a repudiation of the MOU and is an independent breach of the Statute, U.S. Department of Labor, Occupational Safety and Health Administration, Chicago, Illinois, 19 FLRA 454, 467 (1985).

A Status Quo Ante Remedy is Warranted

When an agency unilaterally changes a condition of employment that is substantively negotiable, a status quo ante (SQA) remedy is appropriate in the absence of special circumstances, General Services Administration, National Capitol Region, Federal Protective Service Division, Washington, DC, 50 FLRA 728, 737 (1995). The Respondent maintains that an SQA remedy as to remedial training would impose a burden on management, but it does not specify what that burden would be. Furthermore, there is nothing in the record to suggest that a restoration of the 80 hour allowance for remedial firearms training would impose a hardship on the Respondent or interfere with its operations.

The Respondent further argues that the granting of an SQA remedy would amount to the "restoration" of the 8 hour remedial firearms training allowance because no employee has ever received more than 8 hours of remedial training. This argument misses the point. What the parties negotiated was an enhanced "safety net" for Basic Trainee Officers who fail to initially meet the Respondent's standards for firearms qualification. The issue of the necessity of the 80 hour allowance may be raised during the course of bargaining. However, a SQA remedy will prevent the Respondent from changing the allowance until the parties have completed bargaining.

This Decision should not be construed as prejudging issues of negotiability that may arise during the course of bargaining.

For the reasons set forth herein I have concluded that the Respondent committed an unfair labor practice in violation of §7116(a)(1) and (5) of the Statute by failing to provide the Union with notice and an opportunity to bargain before implementing a reduction of the remedial firearms training allowance for Basic Trainee Officers. I have further concluded that the Respondent committed an unfair labor practice in violation of §7116(a)(1) and (5) of the Statute by repudiating the MOU which the parties entered into on April 4, 1996.

Accordingly, I therefore recommend that the Authority adopt the following Order:

ORDER

Pursuant to §2423.41 of the Rules and Regulations of the Federal Labor Relations Authority (Authority) and §7118 of the Federal Service Labor-Management Relations Statute (Statute), it is hereby ordered that the U.S. Department of Homeland Security, Border and Transportation Directorate, Bureau of Customs and Border Protection, Washington, DC, shall:

1. Cease and desist from:

(a) Changing the working conditions of bargaining unit employees by making changes to the amount of remedial firearms training that Basic Trainee Officers may receive should they fail to qualify during Basic Marksmanship Instruction and Practical Pistol Courses.

(b) Repudiating the Memorandum of Understanding of April 4, 1996, by making changes to the Agency's Firearms Policy without first notifying the American Federation of Government Employees, National Border Patrol Council,AFL-CIO, and affording it the opportunity to bargain to the extent required by the Statute.

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

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

(a) Rescind changes to the Agency's Firearms Policy by restoring to 80 hours as needed the amount of remedial firearms training that Basic Trainee Officers will receive should they fail to qualify during Basic Marksmanship Instruction and Practical Pistol Courses.

(b) Notify and, upon request, bargain with the American Federation of Government Employees, National Border Patrol Council, AFL-CIO, to the extent required by the Statute prior to implementing changes to the Agency's Firearms Policy.

(c) Post copies of the attached Notice at all facilities where bargaining unit employees are assigned on forms to be furnished by the Authority. Upon receipt of such forms they shall be signed by the Chief of the [ v60 p965 ] Border Patrol, or the highest equivalent agency official with direct authority over the Border Patrol, 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 with other material.

(d) Pursuant to §2423.41(e) of the Rules and Regulations of the Authority, notify the Regional Director of the Boston Region of the Authority, in writing within 30 days of the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, May 27, 2004.

_________
Paul B. Lang
Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF

THE FEDERAL LABOR

RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Homeland Security, Border and Transportation Directorate, Bureau of Customs and Border Protection, Washington, DC violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT change the working conditions of bargaining unit employees by making changes to the amount of remedial firearms training that Basic Trainee Officers may receive should they fail to qualify during Basic Marksmanship Instruction and Practical Pistol Courses.

WE WILL NOT repudiate the Memorandum of Understanding of April 4, 1996, by making changes to the Agency's Firearms Policy without first notifying the American Federation of Government Employees, National Border Patrol Council, AFL-CIO, and affording it the opportunity to bargain to the extent required by the Statute.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured under the Statute.

WE WILL rescind changes to the Agency's Firearms Policy by restoring to 80 hours as needed the amount of remedial firearms training that Basic Trainee Officers will receive should they fail to qualify during Basic Marksmanship Instruction and Practical Pistol Courses.

WE WILL notify and, upon request, bargain with the American Federation of Government Employees, National Border Patrol Council, AFL-CIO, to the extent required by the Federal Service Labor-Management Relations Statute prior to implementing changes to the Agency's Firearms Policy.

_______

(Agency)

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, Boston Regional Office, whose address is: Federal Labor Relations Authority, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: 617-424-5731.

File 1: Authority's Decision in 60 FLRA No. 170

File 2: Opinion of Member Pope

File 3: ALJ's Decision

Footnote # 1 for
60
FLRA No. 170

• ALJ's Decision

Subsequent to the filing of the unfair labor practice charge the Immigration and Naturalization Service became a part of the newly created Department of Homeland Security. The Respondent's present designation is shown in the case caption.

Footnote # 2 for
60
FLRA No. 170

• ALJ's Decision

The General Counsel acknowledges that the change in the firearms carrying policy was an exercise of management rights under §7106 of the Statute, but maintains that the change in the allowable hours of remedial firearms training is not an exercise of management rights and, consequently, is substantively negotiable.

Footnote # 3 for
60
FLRA No. 170

• ALJ's Decision

The CBA went into effect on February 6, 1995, and identified the Respondent by its former name. It is undisputed that the parties continue to operate under the CBA in spite of the fact that it has expired.

Footnote # 4 for
60
FLRA No. 170

• ALJ's Decision

The Union has 15 days to request bargaining on changes at the regional level and 10 days for changes at the sector level. It is undisputed that the changes at issue in this case were at the national level.

Footnote # 5 for
60
FLRA No. 170

• ALJ's Decision

The National Immigration & Naturalization Service Council, another labor organization with which the Respondent bargains, is also party to the MOU.

Footnote # 6 for
60
FLRA No. 170

• ALJ's Decision

At all times pertinent to this case the Beretta was the standard issue handgun. However, uniformed officers had the option of carrying a personally-owned SIG-Sauer while on duty with the approval of the appropriate supervisors.

Footnote # 7 for
60
FLRA No. 170

• ALJ's Decision

Appendix 1B was submitted to the Acting Deputy Commissioner as an attachment to a memorandum dated December 20, 2001, from Michael D. Cronin, the Respondent's Acting Executive Associate Commissioner, Office of Programs. The memorandum had been issued "through" the Committee. Its stated purpose was to, "Revise the carry policy for Service-authorized handguns and . . . to clearly define the handguns INS officers may carry on-duty and off-duty."

Footnote # 8 for
60
FLRA No. 170

• ALJ's Decision

Pierce testified that he assumed that the Respondent would provide Bonner with a written notice of the proposed change. He did not state that he expressed this assumption to a representative of the Respondent.

Footnote # 9 for
60
FLRA No. 170

• ALJ's Decision

The alleged change at issue applies only to Basic Trainee Officers who have not passed the required firearms course during their initial training. All further references to remedial firearms training pertain only to the training allowance for those employees.

Footnote # 10 for
60
FLRA No. 170

• ALJ's Decision

The provision for 80 hours of remedial instruction appeared, whether or not for the first time, in the 1996 revision to the Policy (Jt. Ex. 8 at 35).

Footnote # 11 for
60
FLRA No. 170

• ALJ's Decision

A finding to that effect had purportedly been made by a MSPB judge in a decision which upheld the Respondent's termination of an employee who was not in the bargaining unit. That decision has been accorded no weight other than with regard to the Respondent's motivation in making the change. While the MSPB has an important role in the administration of the federal personnel system, its responsibilities do not include the resolution of issues pertaining to labor relations which are governed by the Statute.

Footnote # 12 for
60
FLRA No. 170

• ALJ's Decision

There is no evidence that the Union had ever rejected a notice or informed the Respondent that it considered a notice to have been inadequate.

Footnote # 13 for
60
FLRA No. 170

• ALJ's Decision

It is unclear whether the Respondent had ever before given notice to the Union with regard to issues involving firearms.

Footnote # 14 for
60
FLRA No. 170

• ALJ's Decision

Bonner testified that Pierce kept him informed of major developments at the Board (Tr. 55). Pierce testified that he would advise Bonner of developments after every meeting of the Board by e-mail and telephone conference (Tr. 125).

Footnote # 15 for
60
FLRA No. 170

• ALJ's Decision

The cited portion of the Statute provides that,

". . . no complaint shall be issued on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority."

Footnote # 16 for
60
FLRA No. 170

• ALJ's Decision

Both the 1996 and the 2002 Firearms Policies contain detailed provisions for the maintenance of proficiency in the use of various firearms.

Footnote # 17 for
60
FLRA No. 170

• ALJ's Decision

While the number of employees actually or potentially affected by either of the policy changes is unclear, that is not a controlling factor in the application of the de minimis test. Rather, it will be applied to expand rather than limit the number of situations where bargaining will be required, Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407 (1986).

Footnote # 18 for
60
FLRA No. 170

• ALJ's Decision

Under the doctrine of apparent authority a principal (the Union) is bound by the actions and knowledge of a representative (Pierce) when the principal places the representative in a position which leads a third party (the Respondent) to believe that the representative has the necessary authority. The doctrine was applied by the Authority in U.S. Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 38 FLRA 193, 197 (1990).

Footnote # 19 for
60
FLRA No. 170

• ALJ's Decision

The Authority has recognized that the Statute does not prescribe any particular method by which collective bargaining may occur and that consideration of the totality of circumstances is necessary to determine whether a party has fulfilled its bargaining obligations, U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky, 53 FLRA 312, 317, 319 (1997).

Footnote # 20 for
60
FLRA No. 170

• ALJ's Decision

Although the Respondent acted at its peril when it implemented this change within 30 days of its notice to the Union, the fact remains that the Union did not make a timely request to bargain.

Footnote # 21 for
60
FLRA No. 170

• ALJ's Decision

This statement should not be construed as limiting the right of either party to propose an arrangement that does not affect the number of remedial training hours.

Footnote # 22 for
60
FLRA No. 170

• ALJ's Decision

In the context of this analysis there is no difference between an MOU and a term agreement.