U.S. Department of Justice, Immigration and Naturalization, Service, Washington, D.C., (Respondent) and American Federation of Government, Employees, National Border, Patrol Council, (Charging Party) (Authority decision, May 5, 2000)

Read the official release (flra.gov)

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

Plain-English summary

INS implemented a revised body-search policy without responding to the union’s final proposals or bargaining request. The Authority found an unfair labor practice because the agency failed to complete bargaining; it did not need to determine the proposals’ negotiability where the agency had not responded at all. The policy concerned conditions of employment despite the agency’s statutory enforcement duties and internal-security right. The majority added an order rescinding the 1997 policy and restoring prior practices while the agency fulfilled its bargaining obligations. It found intentional implementation, foreseeable adverse effects, and no specific evidence that temporary restoration would disrupt operations. Member Cabaniss dissented from restoring the prior policy because she believed it would create confusion.

Decision snapshot

• Authority: Unilateral policy implementation, conditions of employment, and restoration remedies.
• Outcome: Unfair-labor-practice finding retained; rescission, restoration, bargaining, and nationwide notice ordered.
• Key point: The agency had to respond to the bargaining request before relying on nonnegotiability as a defense to implementation.

Full text (FLRA public release)

[ v56 p351 ]

56 FLRA No. 50

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION

SERVICE, WASHINGTON, D.C.

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, NATIONAL BORDER

PATROL COUNCIL

(Charging Party)

WA-CA-80124

_____

DECISION AND ORDER

May 5, 2000

_____

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

I. Statement of the Case

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

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

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

II. Background and Judge's Decision

A. Background

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

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

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

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

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

B. The Judge's Decision

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

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

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

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

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

A. Positions of the Parties

1. Respondent's Exceptions

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

2. General Counsel's Opposition

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

3. Charging Party's Opposition

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

B. Analysis and Conclusions

We construe the Respondent's Exception as raising two types of objections: first, the Respondent raises the threshold jurisdictional argument that the Authority does not have "subject matter jurisdiction" in this case; second, the Respondent asserts substantive reasons why its policy does not concern conditions of employment under section 7103(a)(14) of the Statute. In such situations, the Authority first addresses the jurisdictional issues and then the substantive issues raised by a party's exceptions. See 305th Air Mobility Wing, McGuire Air Force Base, New Jersey, 54 FLRA 1243, 1247-48 (1998) (McGuire AFB)

1. The Authority Has Subject Matter Jurisdiction Over This Case

The Authority has considered and rejected claims similar to that made by the Respondent that Customs Service deprives the Authority of jurisdiction. In American [ v56 p355 ] Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1490-93 (1997) (El Reno), the Authority explicitly refused to extend the court's reasoning in Customs Service to an allegation in a negotiability appeal that a proposed matter did not affect "conditions of employment." The Authority held that Customs Service, which considered the definition of a grievance set forth in section 7103(a)(9)(ii), applied only to exceptions to an arbitration award, not a negotiability appeal. Likewise, in McGuire AFB, the Authority reaffirmed that distinction and extended El Reno's reasoning to unfair labor practice cases. In doing so, the Authority stated that "the Agency's assertion that the Authority lacks jurisdiction because the disputed action did not concern a condition of employment confuses the issue of whether an unfair labor practice occurred with the issue of whether the Authority has the jurisdiction to determine whether an unfair labor practice occurred." McGuire AFB, 54 FLRA at 1247-48. The Authority concluded that the presence of an issue concerning whether a policy concerns conditions of employment does not deprive it of jurisdiction. Accordingly, and as the Respondent has not established any reason to reconsider McGuire AFB, we find that the Authority has subject matter jurisdiction over this complaint.

2. The Body Search Policy Concerns Conditions of Employment

We also construe the Respondent to argue that its body search policy is outside of the duty to bargain because it does not concern "conditions of employment" under section 7103(a)(14) of the Statute. Specifically, we construe the Respondent as claiming that its policy is excluded from the definition of conditions of employment under the court's construction set forth in Customs Service, and because the policy is specifically provided by law.

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

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

In arguing that its non-deadly force policy is specifically provided for by the Immigration Act, the Respondent relies on 8 U.S.C. § 1357(a), which requires the Attorney General to publish regulations that "establish standards with respect to enforcement activities of the service." See supra note 5. Although this provision specifically requires the Attorney General to promulgate regulations setting forth enforcement policy, there is nothing in section 1357(a) that specifies the actual policy to be established, or limits the discretion of the Attorney General to implement any particular policy. See INS, New York, 55 FLRA at 232. Because the statutory provision does not specify the policy, it is not "specifically provided" for by the law. BEP, 50 FLRA at 683 (holding that only the specific matter provided for is excepted from definition). Rather, section 1357(a) leaves the content of the policy to the discretion of the Attorney General.

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

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

A. Positions of the Parties

1. Respondent's Exceptions

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

2. General Counsel's Opposition

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

3. Charging Party's Opposition

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

B. Analysis and Conclusions

It is long established that an agency "must meet its obligation to negotiate prior to making changes in established conditions of employment[.]" Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9, 11 (1981). This obligation includes "affording the exclusive representative notice of proposed changes and an opportunity to [bargain.]" Id. at 10-11. This obligation also includes, "at a minimum, the requirement that a party respond to a bargaining request." Army and Air Force Exchange Service, McClellan Air Force Base Exchange, McClellan Air Force Base, California, 35 FLRA 764, 769 (1990). When an agency does not respond to a union's request to bargain, it is not necessary for the Authority to resolve the negotiability of the union's proposals in order to find that unilateral implementation of a change in working conditions violates the Statute. DOJ, 55 FLRA at 900-02.

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

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

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

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

V. A Status Quo Ante Remedy Is Appropriate

A. Positions of the Parties

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

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

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

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

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

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

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

B. Analysis and Conclusions

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

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

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

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

Third, we find that the Judge incorrectly determined that a status quo ante remedy would disrupt the efficiency and effectiveness of the Respondent's operations. The Authority requires that a conclusion that a status quo ante remedy would be disruptive to the operations of an agency be "based on record evidence." Army and Air Force Exchange Service, Waco Distribution Center, Waco Texas, Local 4042, 53 FLRA 749, 763 (1997). See, e.g., U.S. Department of Health and Human Services, Social Security Administration, 50 FLRA 296, 299 (1995) (finding that the record evidence sufficiently established that the efficiency of respondent's operations would be affected where all performance appraisals issued under the revised standards and all related personnel actions would have to be rescinded). In the absence of record evidence establishing that a status quo ante remedy is not appropriate, the Authority should restore the status quo. DOJ, 55 FLRA at 906, citing National Treasury Employees Union v. FLRA, 910 F.2d 964, 969 (D.C. Cir. 1990).

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

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

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

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

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

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

VI. Summary

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

VII. Order

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

1. Cease and desist from:

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

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

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

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

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

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

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

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

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

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

We hereby notify employees that:

WE WILL NOT issue a final policy governing the performance of body searches by Border Patrol Officers without completing bargaining with the American Federation of Government Employees, National Border Patrol Council (AFGE, NBP Council), the exclusive representative of a unit of bargaining unit employees.

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

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

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

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

_____

(Activity)

Date:_ By: _____

(Signature) (Title)

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

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

Opinion of Member Cabaniss, dissenting in part:

For the reasons stated by the Judge, as well as those set forth more fully in my dissent in U.S. Department of Justice, Immigration and Naturalization Service, 55 FLRA 892, 909-10 (1999), I believe that the majority's decision to impose a status quo ante remedy will create confusion where clarity is sorely needed, and therefore is unfaithful to "the congressional command that [the Statute] be interpreted in a manner consistent with the exigencies of efficient government." United States Immigration and Naturalization Service v. Federal Labor Relations Authority, 834 F.2d 515, 517 (5th Cir. 1987); see also United States Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, 975 F.2d 218, 221 n.6 (5th Cir. 1992). In this regard, my review of the record leads me to the opposite conclusion from that reached by my colleagues. For the protection of both sides, Respondent's employees need clear guidance on what actions are legal and appropriate when interacting with members of the public under less than ideal circumstances. I would not deprive them of such guidance on the sensitive issue of body searches while the few issues still in dispute between the parties are being resolved.

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

File 2: ALJ's Decision

Footnote # 1 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 2 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 3 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 4 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 5 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 6 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 7 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 8 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 9 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 10 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 11 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 12 for
56 FLRA No. 50

• Authority's Decision

HHS, Baltimore stands for the principle that an agency may unilaterally implement a change in working conditions without violating the Statute where a union's proposals submitted in response to that change are nonnegotiable. This principle only applies, however, in cases where "a union submits bargaining proposals and an agency refuses to bargain over them on the contention that they are nonnegotiable[.]" HHS, Baltimore, 39 FLRA at 262-63 (emphasis added).

Footnote # 13 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 14 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 15 for
56 FLRA No. 50

• Authority's Decision

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

Footnote # 16 for
56 FLRA No. 50

• Authority's Decision

Although the Judge stated that "neither the General Counsel nor the Union submitted any evidence at the hearing or argument in their post-hearing briefs that the new body search policy . . . had resulted in actual injury to any bargaining unit employee by means of concealed weapons or otherwise[,]" (Judge's Decision at 18), the Authority does not require evidence of actual injury in order to find that unit employees were adversely impacted by changes in conditions of employment. Cf. VAMC Prescott, 46 FLRA at 477 ("reasonably foreseeable" impact of change on employees supported status quo ante remedy).

[ v56 p362 ]

Office of Administrative Law Judges

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION

SERVICE WASHINGTON, D.C.

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, NATIONAL BORDER

PATROL COUNCIL

Charging Party

Case No. WA-CA-80124

Sharon K. Pendergast, Esquire

Edwin S. Campbell, Jr., Esquire

For the Respondent

Matthew B. Cohen, Esquire

Thomas F. Bianco, Esquire

For the General Counsel

Mr. T.J. Bonner

Deborah S. Wagner, Esquire

By Brief

For the Charging Party

Before: WILLIAM B. DEVANEY

Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq. [n1] , and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether Respondent implemented a policy entitled "Enforcement Standard: Body Searches" without providing the Charging Party an opportunity to review the document and bargain with respect thereto, as required by the Statute.

This case was initiated by a charge filed on November 25, 1997 (G.C. Exh. 1(a)) and the Complaint and Notice of Hearing issued on June 30, 1998 (G.C. Exh. 1(b)), setting the hearing for September 24, 1998. By Order dated August 14, 1998 (G.C. Exh. 1(h)), Respondent's Motion to postpone hearing was granted and the hearing was rescheduled for October 1, 1998; by Order dated August 18, 1998 (G.C. Exh. 1(i)), General Counsel's Motion to reschedule hearing was granted and the hearing was rescheduled for September 25, 1998; and by Order dated August 25, 1998, General Counsel's further motion to reschedule hearing was granted and the hearing was, again, rescheduled for October 1, 1998, pursuant to which, a hearing was duly held on October 1, 1998, in Washington, D.C., before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument, which each party waived. At the conclusion of the hearing, November 2, 1998, was fixed as the date for the mailing post-hearing briefs, which time subsequently was extended, on motion of Respondent, to which the other parties did not object, for good cause shown, to November 25, 1998, and Charging Party, Respondent and General Counsel each timely filed, or mailed, an excellent brief, received on, or before, November 30, 1998, which have been carefully considered. Upon the basis of the entire record, I make the following findings and conclusions:

Findings

1. Respondent, United States Department of Justice, Immigration and Naturalization Service (hereinafter, "INS"), has recognized the American Federation of Government Employees, AFL-CIO (hereinafter, "AFGE"), as the exclusive representative of a nationwide unit of all non-excluded personnel of the Immigration and Naturalization Service. The National Border Patrol Council (hereinafter, the "Union") is an agent of AFGE for the purpose of representing the approximately 8,000 employees of the National Border Patrol which is a component of INS (Tr. 30).

2. Border Patrol Officers are responsible for detecting, apprehending and processing those individuals who enter the United States illegally, and routinely search such individuals incident to their arrest because some who enter this country illegally conceal knives, razor blades, or other weapons in their clothing or on their persons. [n2] (Tr. 28).

3. According to the testimony of Ms. Lydia St. John-Mellado, Director of the Office of Investigations for INS, there had never been clear guidelines governing [ v56 p363 ] the performance of body searches by Officers in the field. Rather, there were a number of manuals and handbooks containing policy guidance, but not a single, clear and comprehensive statement of policy to govern all INS employees on the subject of body searches (Tr. 127-28, 131-32). Accordingly, in 1995, she began to put together a single policy on the subject which would help all INS employees to avoid personal liability as a result of lawsuits arising from allegedly improper body searches (Tr. 128-29, 132).

4. Her first draft of the policy statement on body searches was transmitted to T.J. Bonner for comment on February 6, 1995 (G.C. Exh. 2; Tr. 30-31, 134). Mr. Bonner responded with proposed changes on March 9, 1995 (G.C. Exh. 3; Tr. 32, 135). Thereafter, the parties met on a number of occasions to discuss the language of the draft body search policy but never reached complete agreement (Tr. 34, 136). After each meeting Ms. St. John-Mellado took the Union's proposed revisions to her legal advisor, INS Assistant General Counsel Peder Anderson, and incorporated the Union's suggestions into the draft policy whenever Mr. Anderson's review indicated that they were not inconsistent with the Constitution and federal law (Tr. 136, 171-72).

5. On October 8, 1996, Respondent circulated a revised draft policy on body searches to the Union, indicating in a cover letter that many, but not all, of the Union's prior suggestions had been incorporated and provided the Union a further opportunity to respond (G.C. Exh. 4; Tr. 32-33, 137-38).

6. The Union received the revised draft on October 17 and responded with a 9-page letter from Mr. Bonner dated November 18, 1996 (G.C. Exh. 5; Tr. 39). In its letter, the Union proposed specific revisions to the draft policy, including a narrower definition of "strip search" and a broader definition of "pat down." As explained by Mr. Bonner, and confirmed by both Ms. St. John-Mellado and Mr. Anderson, the revised draft policy on body searches would treat the removal or rearrangement of any clothing as a strip search requiring a Border Patrol Officer to have a reasonable and articulable level of suspicion that the detained or arrested individual was concealing a weapon or other contraband before such a search could be undertaken. By contrast, the Union proposed that a strip search be defined as the removal of clothing down to the underwear with the resultant exposure of skin surfaces not normally exposed to public view. Conversely, the Union proposed to expand the definition of a pat down to include the removal of outer layers of a suspect's clothing to search for concealed weapons or contraband without having a reasonable suspicion that such items were being concealed. As Mr. Bonner explained, suspects often enter the United States wearing multiple layers of heavy clothing, thereby making the detection of concealed weapons difficult, if not impossible, by the use of nothing more than a Border Patrol Officer's open hands to pat down the suspects' outer garments (G.C. Exh. 5; Tr. 36-37, 39, 44-52, 54-55, 154-56, 187-193). When Mr. Bonner brought these concerns about the draft policy to Ms. St. John-Mellado's attention, she referred Mr. Bonner to INS attorney Anderson for the legal explanation since she is not an attorney; Mr. Anderson met with Mr. Bonner thereafter and heard his concerns for the Border Patrol Officers' safety, but authorized no changes to the draft policy following that discussion (Tr. 138-39, 178-80). [n3]

The Union also proposed to modify the draft policy on body searches in several other respects: to search, incident to a lawful arrest, the area immediately surrounding and under the control of the suspect, which proposal Respondent rejected on the basis that such issues are dealt with in other policy statements and should not be included in the body search policy; to treat minors (under the age of 18) the same as other suspects by searching them for weapons and contraband without having a reasonable suspicion to do so, which proposal Respondent rejected as inconsistent with the requirements of law; and to guarantee that Border Patrol Officers would be represented by Department of Justice attorneys if they are sued as the result of conducting body searches under established INS policy (G.C. Exh. 5; Tr. 44, 62-64, 140-41, 142-43, 162, 193). Additionally, the Union objected to the draft policy's new requirement that all body searches conducted by Border Patrol Officers be accompanied by contemporaneous memoranda setting forth the grounds believed to justify such conduct, but Respondent deemed the new requirement necessary in order to defend against subsequently filed lawsuits (Tr. 92, 94, 141-42).

In its November 18, 1996, letter to management, referred to above, the Union again requested the opportunity to bargain and insisted that, "implementation of the proposed policy be held in abeyance pending the completion of all phases of bargaining, including the [ v56 p364 ] resolution of all attendant third party proceedings." (G.C. Exh. 5).

7. On May 28, 1997, INS Commissioner Doris Meissner issued the final policy entitled, "Enforcement Standard-Body Searches." In her cover memorandum, the Commissioner indicated that, "[i]mplementation of the Standard will include a transition period of 30 days from receipt." The documents were distributed to all Regional and District Directors, Chief Patrol Officers and training facilities within INS (G.C. Exh. 6). They were not sent to the Union (Id.; Tr. 39-41, 144-45). Mr. Bonner first learned in July, 1997, while attending a meeting at an INS training academy, that the final policy on body searches had been issued in May, 1997. He raised the matter with Respondent's Chief of Labor and Employee Relations, Mr. Edwin Campbell, and thereafter received a copy of the final policy through the mail with a cover letter from Mr. Campbell dated September 12, 1997 (G.C. Exh. 7; Tr. 40-41).

In his cover letter, Mr. Campbell acknowledged that the, "final revision," accompanied by the Commissioner's May 28 memo, "was inadvertently transmitted to the field offices prior to having notified you of the Service's intent to implement." Mr. Campbell referred to the Union's letter dated November 18, 1996, and indicated that all of the Union's proposed revisions had been incorporated into the final policy except those which the INS's Office of General Counsel advised were, "outside of the mandatory scope of collective bargaining either because they are inconsistent with Federal law or because they contravene reserved statutory management rights, or both. In the absence of negotiable proposals concerning the implementation and impact of the body search policy, the INS was free to implement that policy." The letter concluded with a statement of regret that a mutually agreeable policy could not be worked out despite lengthy attempts to do so, but that INS concluded it was, "essential, in both the public interest and that of INS employees, to proceed with implementation of this much-needed policy." (G.C. Exh. 7).

8. There was conflicting testimony concerning whether the final policy on body searches changed the Border Patrol Officers' conditions of employment. Mr. Bonner testified that the new policy, as implemented, made two big changes in the way that body searches are to be conducted: the definition of pat down and strip search (referred to above), and the level of suspicion needed before a search may be conducted (Tr. 70-71). Under the old practice, as under the new policy, a Border Patrol Officer needed reasonable suspicion to pat down or to strip search a detained or stopped person. Once arrested, however, according to Mr. Bonner, no reasonable suspicion was needed in order to conduct a pat down or a strip search; an Officer could use his, or her, discretion and common sense for self-protection in determining what action, if any, to take and how such action should be taken. In the latter regard, for example, Mr. Bonner indicated that, for obvious reasons, strip searches would not be conducted next to a highway and that, except in extraordinary circumstances, cross-gender strip searches would not be performed (Tr. 72-74). Under the new policy, following an arrest, an Officer may not remove or rearrange any of the suspect's clothing without considering such action a strip search requiring reasonable suspicion and the completion of forms documenting why the search was deemed necessary (Tr. 74-75).

Mr. John Esquivel, Respondent's Assistant Chief of Border Patrol, testified that he was a supervisory Border Patrol Officer in the El Paso sector at the time that the new policy was issued, and that in his opinion the only change was that the new policy was in writing but made no change in how field operations were conducted (Tr. 166-68). Mr. Esquivel further testified that he received the new policy through the chain of command in July, 1997, and was promoted to his current position in December 1997 (Tr. 168-69).

I credit the specific and thorough testimony of Mr. Bonner with respect to how the re-definition of pat down and strip search changed the way that Border Patrol Officers were required to interact with persons in the field, and the extent to which searches that involved the removal or rearrangement of any article of a suspect's clothing required written justification, over the general and conclusory testimony of Mr. Esquivel.

CONCLUSIONS

A. Jurisdiction

I conclude, contrary to Respondent's contention, that the Authority has jurisdiction over the instant proceeding. More particularly, I find that Respondent's reliance on the D.C. Circuit's decision, in United States Department of Treasury, U.S. Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994), is misplaced. In Customs Service, the court held that an arbitrator and the Authority both lacked jurisdiction over a union grievance which alleged that an agency misinterpreted and misapplied a provision in a Federal law the agency had been authorized by Congress to administer because the law in question governed international trade rather than being directed toward employee working conditions. 43 F.2d at 689. [n4] The Authority, acquiesced in the D.C. Circuit's [ v56 p365 ] conclusion that the Federal law in question did not affect conditions of employment but, rather, governed international trade. U.S. Department of the Treasury, U.S. Customs Service, Pacific Region and National Treasury Employees Union, 50 FLRA 656, 659 (1995). In a subsequent case involving a different Federal law, the Authority distinguished Customs Service and found that the arbitrator had jurisdiction over the grievance. U.S. Department of Justice, Federal Bureau of Prisons, Medical Facility for Federal Prisons and American Federation of Government Employees, Local 1612, 51 FLRA 1126 (1996). In short, I do not read the court's decision in Customs Service to preclude the Authority from exercising jurisdiction in an unfair labor practice case when an agency raises a Federal law as an affirmative defense to an alleged refusal to bargain in good faith.

Moreover, I reject Respondent's further argument that the Immigration Act of 1990 removed from the scope of the term, "conditions of employment", the entire area of body searches conducted by Immigration Officers. Section 503 of that law, relied on by Respondent, codifies and expands the authority of Immigration Officers to carry weapons, make arrests, and use deadly force pursuant to regulations promulgated by the Attorney General. Nothing in the language of that law ,or its legislative history, compels the conclusion that Congress specifically dealt with body searches, much less how body searches were to be conducted; nor is there any indication that discretion to regulate concerning body searches should be solely and exclusively exercised by the Attorney General. Indeed, the manner in which Respondent approached its decision to revise the existing practice of conducting body searches undercuts the idea that the change had no effect on established conditions of employment, or that only the Attorney General can regulate on that subject. Thus, Respondent's proposed draft of the revised body search policy was sent to the Union for review and comments; the Union made proposals and sought to negotiate; some Union proposals were incorporated into the revised policy; the draft policy was re-circulated for further Union proposals; and the parties met on several occasions to address their differences. All of which is consistent with Respondent's understanding that it had an obligation to bargain with respect to the impact and implementation of its decision to change how and when the bargaining unit employees conduct body searches. Accordingly, I find that the complaint in this case is properly before me.

B. The Body Search Policy

Respondent has the right under § 6(a)(1) of the Statute to determine its internal security practices, and it exercised that right when it promulgated its body search policy. That is, the body search policy was a plan to secure or safeguard its personnel, physical property and/or operations against internal and external risks by issuing a formal policy designed to protect INS employees from physical harm and financial liability by prescribing when and how they should conduct body searches of individuals suspected of illegal entry into the United States. Respondent also was acting to protect its operations from lawsuits against INS for alleged violations of individuals' constitutional rights arising from their detention and body searches. Respondent has established a reasonable connection between the goal of safeguarding its personnel and operations and the practice designed to implement that goal, even though it might be argued that some other plan would have been more effective. See Fraternal Order of Police, Lodge 1-F and U.S. Department of Veterans Affairs, Providence Medical Center, 51 FLRA 143, 144-45 (1995); American Federation of Government Employees, Local 1920 and U.S. Department of Defense, Army and Air Force Exchange Service, Fort Hood Exchange, Fort Hood, Texas, 47 FLRA 340, 348-49 (1993). General Counsel and the Union concede the foregoing.

Nevertheless, when an agency exercises a reserved right of management under § 6(a) of the Statute, it is obligated to notify and negotiate with the exclusive representative of its employees, under §§ 6(b)(2) and (3) of the Statute, over the implementation and impact of the change in working conditions as long as such change is more than de minimis. Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee, 50 FLRA 220, 222 (1995); United States Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 43 FLRA 642, 658-63 (1991)(INS, San Diego), enforced, 12 F.3d 882 (9th Cir. 1993); U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Hartford District Office, Hartford, Connecticut, 41 FLRA 1309, 1317 (1991). In this case, there is no dispute that Respondent's decision to issue a body search policy would change working conditions for bargaining unit employees not only in terms of when, where, and how body searches were to be conducted [ v56 p366 ] but also in terms of the written reports that Officers would be required to prepare whenever a body search was conducted. In addition, failure to follow the policy could subject employees to discipline. There is also no dispute that these changes would have more than a de minimis effect on the unit employees.

The allegations of the Complaint were shown by the testimony and evidence to be quite untrue, or very misleading, in several respects. For example, the allegation of Paragraph 24 of the Complaint that before 1997, ". . . the Charging Party did not have a policy concerning body searches . . . ." (G.C. Exh. 1(b), Par. 24), presumably should have asserted that before 1997, Respondent did not have a policy concerning body searches; but it did have policies for body searches which were set forth in Officer's Handbooks (G.C. Exh. 2; Tr. 108, 109, 110, 111, 128). The allegation of Paragraph 27 that Respondent, ". . . did not give the Charging Party . . . an opportunity to bargain in connection with the document. . . .", is correct but very misleading as to bargaining about the policy on body searches. As the Compliant itself shows, the policy on body searches was sent to the Union on February 6, 1995 (G.C. Exh. 1(b), Pars. 11, 12); the Union responded with counterproposals (id., Par. 13); Respondent submitted a revised document on May 6, 1996 (id., Pars. 13, 14, 15, 16); and the Union, on June 19, 1996, submitted counter proposals and a request that bargaining be completed before implementation (id., Par. 17); on October 8, 1996, Respondent submitted to the Union a further revision (id., Pars. 18, 19); and on November 18, 1996, the Union submitted proposals and renewed its proposal that bargaining be completed before implementation (id., Par. 20).

What this case really concerns is Respondent's implementation of the body search policy before completion of bargaining on I & I. That Respondent unilaterally implemented the body search policy on May 28, 1997, was conceded by Respondent and its defense is that, ". . . there were no negotiable [Union] proposals pending at the time of implementation." (Respondent's Brief, p. 13 n.5).

The standard for determining whether a proposal is within the duty to bargain as an "appropriate arrangement" under § 6(b)(3) of the Statute is set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986)(KANG). The Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 539, 545-46 (1997), citing United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992).

The claimed arrangement must also be sufficiently "tailored" to compensate or benefit employees suffering adverse effects attributable to the exercise of management's right(s). As the Authority reaffirmed, relying on United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), § 6(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996). That section of the Statute does not bring within the duty to bargain proposals that are so broad in their sweep that the "balm" would be applied to employees indiscriminately without regard to whether the group as a whole is likely to suffer, or has suffered, adverse effects as a consequence of management action under § 6. Id. In this case, the Union's proposed revisions to the new body search policy would apply to all of the employees in the bargaining unit and therefore would apply "balm" only to the group which is likely to suffer or which has suffered adverse effects due to management's action under § 6(a)(1) of the Statute. Respondent does not contend otherwise.

If the proposal is an arrangement that is sufficiently tailored, the Authority then determines whether it is "appropriate,"or whether it is inappropriate because it excessively interferes with the relevant management right(s). KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. Id.

I conclude that the Union's proposed revisions to the new body search policy, which sought to re-define the terms, "strip search", and, "pat down", and which sought to modify the language in other provisions of the policy to reflect those re-definitions, were all intended as "arrangements" for adversely affected employees. In other words, the Union intended the proposed revisions to preserve the established practice under which Border Patrol Officers who stopped, detained and arrested suspected illegal aliens would be permitted to pat them down and, if deemed necessary, strip search them. The proposed revisions constitute arrangements because [ v56 p367 ] they are intended to protect the safety of bargaining unit employees by permitting them to search for concealed weapons in a far more meaningful way than Respondent's body search policy would allow. More specifically, the Union's re-definition of "pat down" and related provisions would permit an Officer to remove a series of bulky outer layers of clothing worn by suspected illegal aliens and "feel" rather than merely "touch" such articles of clothing individually before returning them to the suspect if the Officer's search would otherwise be "hampered" (rather than "prevented" as Respondent's policy would require) without having engaged in a "strip search." In addition, it would permit the Officer to pat down the suspect without removing the lighter-weight underlayers of clothing, thus providing a better opportunity for discovery of hidden weapons located close to the suspect's body without requiring the removal of all the suspect's clothing. Conversely, Respondent's policy would deem the removal or even the rearrangement of any article of clothing to constitute a "strip search" requiring the Officer conducting the "search" to have reasonable cause to believe that the suspect is concealing weapons on his or her person and to justify such action by preparing a detailed written report of the incident. The Union's proposed revisions to the new body search policy were intended to permit Officers in the field to protect themselves against the dangers of concealed weapons by taking reasonable steps to detect them. [n5]

The Union's proposed arrangements are "appropriate". I conclude that the proposed arrangements are appropriate in that they would afford employees considerably more protection against the inherent danger of weapons concealed in the clothing or on the person of individuals who have been detained as suspected illegal aliens. The magnitude of the danger to such Officers if they are unable to remove outer layers of heavy clothing and manipulate them in order to detect hidden weapons, and then to pat down the suspect(s) with their hands before returning the outer garments to the suspect(s) is great, and the corresponding benefits to the affected employees, if they are able to take the foregoing steps, is substantial.

Conversely, the proposed arrangements would not excessively intrude on the exercise of Respondent's right to determine its internal security practices. That is, Respondent's decision to promulgate one clear and comprehensive body search policy to guide its employees' conduct and thereby protect the employees against financial liability, the suspects against unreasonable searches, and its operations against criticism, is still inviolate. Moreover, Respondent has not demonstrated that it has been criticized or held liable -- financially or otherwise -- for unreasonable searches committed by its Border Patrol Officers in the past. Indeed, the length of time that Respondent devoted to the development of its new body search policy -- approximately 28 months from Respondent's transmittal of the first draft policy to the Union until its issuance of the final enforcement standard--suggests that there was no urgency to replace the existing practices, particularly since the field Officers were given training periodically on new developments in Federal law governing proper body searches. [n6]

Similarly, I am not persuaded that the established body search practices were unlawful or that the Union's proposed revisions to the new policy are contrary to law. I note that the Union was never informed by Respondent why any of its proposals was unlawful. As previously found, Ms. St. John-Mellado -- the author of Respondent's body search policy -- could not explain to Mr. Bonner why some of the Union's proposed revisions to the policy were legally unacceptable because she is not an attorney; and her legal advisor --Respondent's Assistant General Counsel, Mr. Anderson -- admitted that he neither explained his legal objections to Mr. Bonner nor provided the Union with any supporting legal precedent in writing. Moreover, I have examined the cases cited by Respondent in its post-hearing brief to support the [ v56 p368 ] claim that the Union's rejected proposals were contrary to law and remain unpersuaded that Respondent's assertions are well-founded. In my view, consistent with Ms. St. John-Mellado's testimony that her main objective in drafting the new body search policy was to shield INS employees and the agency itself from financial liability in connection with the performance of body searches, Respondent chose to be very conservative in its directives. I find nothing in the case law cited by Respondent which compels the conclusion that the removal or rearrangement of any article of a suspect's clothing--even a hat--constitutes a "strip search" which must be supported by a reasonable suspicion that the suspect is concealing weapons. On the other hand, as Mr. Bonner stated, ". . . suspicion was required in all instances for a lawful stop." (Tr. 112-113) and a "pat down," could be undertaken by a field Officer to protect against concealed weapons without the same degree of suspicion as required for a true "strip search."

With regard to the Union's proposals to retain the practice of conducting strip searches routinely in Detention facilities, including body searches of minors, again I conclude that the proposals are intended as arrangements in order to enhance the safety of bargaining unit employees. However, these proposals excessively interfere with Respondent's right to determine its internal security practices. Unlike the previous proposals which would govern Border Patrol Officers in the field where the dangers to their safety are highest, sometimes involving the detention of many suspects simultaneously at night, these proposals would apply after the suspects have been patted down and/or strip searched in the field and have been transported to one of Respondent's Detention facilities for incarceration. At this point, the environment is (or is capable of being) far more controlled. Each suspect can be processed individually; the facility is (or can be) well-lighted; and the arresting Officer is (or can be) performing detention-related duties with other Officers nearby. In these circumstances, with the reduced risks to the employees' safety and the heightened responsibility of INS given that a suspect is being detained in a Federal facility operated by Respondent, coupled with the fact that the Union's proposals would authorize "strip" searches under the narrow definition of that term (i.e., exposure of skin surfaces not ordinarily seen in public) with no requirement for reasonable suspicion that weapons are being concealed, the Union's proposals would interfere excessively with Respondent's right to determine its internal security practices. This is equally true for adults and minors who have been detained.

The Union's proposal is to permit body cavity searches without warrants if qualified medical personnel decide that immediate action is necessary. The Union contends that the exception it proposes to the general rule that a warrant is necessary before a body cavity search may be performed is justified because, otherwise, for example, a suspect in custody could swallow drugs in his possession in order to destroy evidence and die as a result, which death would be blamed on the custodial Officer. Unlike the Union's other proposals discussed above, this one is not designed to protect the employees' safety but, rather, is directed toward preventing perceived financial or disciplinary exposure. Nevertheless, it is proffered in order to insulate bargaining unit employees against foreseeable adverse effects arising from Respondent's issuance of its new body search policy. Accordingly, I conclude that the proposal was intended as an arrangement. However, I further conclude that the proposal excessively interferes with Respondent's reserved management rights. First, the proposal inferentially would require Respondent to employ or retain medical personnel at or near each of its Detention facilities to authorize body cavity searches in emergency situations, although there is no record evidence that such medical personnel are currently employed and deployed as the Union's proposal would require. Second, if the proposal were adopted, Respondent's medical personnel would be forced to make split-second decisions based on incomplete facts or speculation whether to authorize the most invasive and embarrassing type of body search without the legal protection of a telephonic judicially-issued warrant. The proposal thus would shift liability from the custodial Officer to the medical personnel in question. Finally, in my judgment, if the hypothetical situation envisaged by the Union were to happen, and the responsible Officer were following the terms of Respondent's policy, the employee's conduct thereby would be insulated against personal financial liability or against disciplinary action. [n7] On balance, I conclude that the Union's proposed arrangement would excessively interfere with management's rights in this instance.

In terms of protecting unit employees from liability arising from lawsuits brought against them in connection with allegedly unreasonable searches, the Union proposed to modify Respondent's policy in two respects. First, it would limit an Officer's liability for [ v56 p369 ] searches which are conducted in "deliberate disregard for" INS policy rather than searches conducted "contrary to" it. The literal language of the proposal would protect Officers even if they failed to follow the terms of the policy unless it could be proven that they acted wilfully -- i.e., with the specific intent to disregard the policy's directives. While I conclude that the proposal is intended as an arrangement by shielding employees from liability for conducting searches in violation of the policy's terms, I find that it would excessively interfere with management's right to require compliance with the policy by removing liability unless wilful defiance could be demonstrated.

The Union's second proposed modification would require INS to "ensure" rather than merely "recommend" that if an employee were sued despite conducting a search in accordance with the policy, a Department of Justice attorney would be appointed to represent the employee's interests. This proposal has the attributes of an arrangement, but it goes beyond Respondent's ability to perform. As Respondent notes, there are Government-wide regulations which apply in determining when Department of Justice attorneys will be appointed to represent Federal employees in lawsuits arising out of their performance of official duties. Under 28 CFR § 50.15(a), a Federal employee may be provided representation when the actions for which the representation is requested reasonably appear to have been performed within the scope of the employee's employment, "and where the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States." (Emphasis added.) Procedurally, § 50.15(a)(1) requires the employee's "employing federal agency" to submit, unless deemed clearly unwarranted, "a statement containing its findings as to whether the employee was acting within the scope of his employment and its recommendation for or against providing representation," and § 50.15(a)(2) provides that upon receipt of the employee's request for counsel, "the litigating division shall determine whether the employee's actions reasonably appear to have been performed within the scope of his employment and whether providing representation would be in the interest of the United States." (Emphasis added.) The clear language of the foregoing regulations indicates that INS (as the employing federal agency) may recommend that legal representation be provided to one of its employees, but that only the Attorney General or her, or his, designee is empowered to decide whether providing such representation would be in the interest of the United States. By requiring the INS to guarantee what the Attorney General has the sole discretion to provide, the Union's proposal is inconsistent with a Government-wide regulation. [n8] To the extent the Union contends that its proposal would require INS (rather than the Justice Department) to provide an attorney, the Union's stated intent is facially inconsistent with the terms of its proposal. That is, the proposal would require INS to ensure the appointment of a Department of Justice attorney to represent unit employees in lawsuits arising from the performance of body search duties.

Having examined the Union proposals that were pending when Respondent implemented its final enforcement standard concerning body searches on May 28, 1997, and which the parties have disputed in this proceeding, I conclude that several proposals pertaining to the definitions of "pat down" and "strip search" are within the duty to bargain. Accordingly, I further conclude that Respondent, by implementing the final body search policy while negotiable proposals were still on the bargaining table, violated § 16(a)(5) and (1) of the Statute. The next and final question is what should constitute an appropriate remedy.

C. Remedy

General Counsel and the Union urge that, in addition to a cease and desist order and nationwide posting, Respondent should be required to rescind its final body search policy and restore the pre-existing practice until the bargaining process has been completed. Both assert that a status quo ante remedy is appropriate by applying the factors identified by the Authority in FCI, 8 FLRA at 606. Respondent agrees that the FCI factors should be applied, but contends that an analysis of those factors compels a conclusion that status quo ante relief is not warranted in this case.

In FCI, the Authority identified the following as being at least some of the factors to be considered in determining whether a status quo ante remedy is appropriate in a given case to remedy an agency's failure to fulfill its statutory duty to bargain over the impact and implementation of its decision to exercise under § 6(a) of the Statute a reserved management right which changes unit employees' conditions of employment: (1) whether, and when, notice was given to the union by the agency concerning the action or change decided upon; [ v56 p370 ] (2) whether, and when, the union requested bargaining on the procedures to be observed by the agency in implementing such action or change and/or concerning appropriate arrangements for employees adversely affected by such action or change; (3) the wilfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations.

With respect to the first factor, it is undisputed that Respondent notified the Union early in February, 1995, that it intended to issue a new body search policy and provided the Union a copy of the draft policy for review and comment. It is also undisputed that Respondent repeated the foregoing process on subsequent occasions whenever the language of a prior draft was modified either by incorporating revisions proposed by the Union or refinements initiated by management.

Second, it is equally clear and uncontested that the Union responded with requests to negotiate over the draft body search policy whenever Respondent provided copies of draft language to the Union for review and comment.

Third, although I have found that Respondent violated its duty to bargain in good faith by implementing the final body search policy before negotiations had been completed, I further conclude that such bargaining violation was not wilful. In this regard, I again note that Respondent not only gave the Union notice of the draft body search policy and an opportunity to offer proposed modifications, but incorporated into the policy whatever Union proposals were deemed consistent with law by Respondent's legal advisor. Additionally, while the bases for Respondent's legal objections were not articulated to the Union, the parties met on at least 3 or 4 occasions to discuss the language of disputed provisions in the draft policy. [n9] Finally, I conclude that issuance of the final enforcement standard on body searches was not in deliberate defiance of Respondent's duty to bargain in good faith under the Statute. Thus, I credit Ms. St. John-Mellado's testimony that nobody was more surprised than she was to learn that the INS Commissioner had signed and issued the final policy without responding to the Union's last proposals submitted on November 18, 1996, or even notifying the Union of the action that was about to be taken, and that the reason for the breakdown was the replacement of key personnel within INS who were knowledgeable concerning the status of the parties' negotiations with individuals who had had no prior involvement in the process. For all of these reasons, I conclude that there was no wilfulness to Respondent's bargaining violation.

Fourth, I have found that Respondent's new body search policy adversely affected the thousands of bargaining unit employees by increasing the danger to them from concealed weapons remaining undetected under the more restrictive rules governing pat downs and strip searches, and by requiring unit employees to prepare lengthy reports articulating their reasonable suspicion supporting strip searches under Respondent's expansive definition of that term. [n10] However, neither the General Counsel nor the Union submitted any evidence at the hearing or argument in their post-hearing briefs that the new body search policy, which went into effect in June, 1997, had resulted in actual injury to any bargaining unit employee by means of concealed weapons or otherwise. Nor did the General Counsel or the Union provide any evidence concerning the number of reports submitted and the amount of time it took to prepare them.

Finally, in terms of the degree of disruption that a status quo ante remedy would have on Respondent's operation, I find that rescission of the body search policy would significantly impair its effectiveness. I note that issuance of the new policy was designed to replace a fragmented and confusing group of management [ v56 p371 ] guidelines with a comprehensive and unitary directive to INS Officers in an area of central importance to accomplishing the agency's mission. Moreover, it appears that most of the provisions contained in the new policy are no longer in dispute. Ordering rescission of the policy, which has been in effect for nearly two years might, indeed, would, cause more confusion than permitting the policy to remain in effect while the parties negotiate over the few negotiable proposals still at issue.

On balance, particularly since Respondent notified and bargained with the Union over the contents of the new body search policy; incorporated many Union proposals into the policy; prematurely issued the new policy more out of inadvertence than wilfulness; and since there was no evidence presented of injury or other actual adverse effects experienced by unit employees; I conclude that a status quo ante order should not be issued to remedy the unfair labor practice found to have been committed in this case. However, consistent with remedial orders issued in similar cases, I shall order Respondent to cease and desist from such unlawful conduct and to post a notice signed by the Commissioner of INS nationwide wherever bargaining unit employees are located. [n11]

ORDER

Pursuant to § 2423.41 of the Authority's Rules and Regulations, 5 C.F.R. § 2423.41, and § 18 of the Statute, 5 U.S.C. § 7118, it is hereby ordered that the United States Department of Justice, Immigration and Naturalization Service, Washington, D.C., shall:

1. Cease and desist from:

(a) Issuing a final policy governing the performance of body searches by Border Patrol Officers without completion of bargaining with the American Federation of Government Employees, National Border Patrol Council, the exclusive representative of a nationwide bargaining unit of its employees, to the extent consistent with law and regulations, concerning the procedures to be observed in implementing that policy and appropriate arrangements for employees adversely affected by that policy.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured them by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Upon request of the American Federation of Government Employees, National Border Patrol Council, the exclusive representative of a nationwide unit of its employees, bargain to the extent consistent with law and regulations, concerning the procedures to be observed in implementing that policy and appropriate arrangements for employees adversely affected by that policy.

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

(c) Pursuant to § 2423.41(e) of the Authority's Rules and Regulations, 5 C.F.R. § 2423.41(e), notify the Regional Director of the Washington Region, Federal Labor Relations Authority, Tech World Plaza, 800 K Street, NW., Suite 910, Washington, D.C. 20001, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

_________

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: April 15, 1999

Washington, DC [ v56 p372 ]

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

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

WE HEREBY NOTIFY OUR EMPLOYEES NATIONWIDE THAT:

WE WILL NOT issue a final policy governing the performance of body searches by Border Patrol Officers without completion of bargaining with the American Federation of Government Employees, National Border Patrol Council, the exclusive representative of a nationwide bargaining unit of our employees, to the extent consistent with law and regulations, concerning the procedures to be observed in implementing that policy and appropriate arrangements for employees adversely affected by that policy.

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

WE WILL, upon request of the American Federation of Government Employees, National Border Patrol Council, the exclusive representative of a nationwide unit of our employees, bargain to the extent consistent with law and regulations concerning the procedures to be observed in implementing that policy and appropriate arrangements for employees adversely affected by that policy.

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

Date: __ By: ______

Commissioner

Washington, D.C.

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

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Region, Tech World Plaza, 800 K Street, NW., Suite 910, Washington, D.C. 20001, and whose telephone number is: (202) 482-6700.

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

File 2: ALJ's Decision

Footnote # 1 for
56 FLRA No. 50

• ALJ's Decision

For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., section 7116(a)(5) will be referred to, simply, as "§ 16(a)(5)".

Footnote # 2 for
56 FLRA No. 50

• ALJ's Decision

Mr. T.J. Bonner, who has served as the Union's president since 1989, and has been a Border Patrol Officer since 1978, testified that he had conducted approximately 10,000 body searches in his career, although none during the past four years while he has been on 100% official time representing the unit employees' interests as Union president (Tr. 29, 105-06).

Footnote # 3 for
56 FLRA No. 50

• ALJ's Decision

Mr. Anderson explained that he made no changes to the policy after meeting with Mr. Bonner because his subsequent research into federal case law persuaded him that the Union's position was legally untenable. However, he never communicated these conclusions to the Union, either verbally or in writing, and, therefore, I excluded the legal memorandum he later drafted which Respondent attempted to introduce as an exhibit at the hearing (Res. Exh. 8 (rejected); Tr. 180-84).

Footnote # 4 for
56 FLRA No. 50

• ALJ's Decision

The Ninth Circuit subsequently declined to follow the D.C. Circuit's decision in Customs Service, holding, instead, that it lacked jurisdiction under the Statute to review the Authority's decision in an arbitration case which involved an alleged violation of the same Federal law at issue in Customs Service. See National Treasury Employees Union v. FLRA, 112 F.3d 402, 404-05 (9th Cir. 1997).

Footnote # 5 for
56 FLRA No. 50

• ALJ's Decision

Similarly, I find that the Union's proposal to authorize Officers to search the immediate area under the control of a detained suspect is intended as an arrangement to protect employees against the danger of weapons being retrieved and used by the suspect under detention. Respondent does not contend otherwise, but instead rejected the proposal as extraneous to the subject of body searches. I do not find Respondent's reason for refusing to bargain over inclusion of the Union's proposal to be persuasive. In my view, searching the immediate area is sufficiently related to the subject of body searches that such a provision contained in the final policy -- even if duplicative of guidance set forth elsewhere -- would provide useful guidance to the affected employees. Since one of the stated purposes for issuing the body search policy was to create a comprehensive and unified set of instructions for its employees, Respondent's objection to this proposal on the basis of over-inclusiveness would appear to be inconsistent with that stated goal. As support for its position, Respondent relies on an Authority decision cited at 23 FLRA 502. No such decision is reported at that citation, and with due diligence I have been unable to find the decision. Thus, I am unable to consider or comment on it.

Footnote # 6 for
56 FLRA No. 50

• ALJ's Decision

To the extent that Respondent now contends that some Union proposals were rejected because their placement might cause confusion, such as putting a statement concerning the purpose(s) of the body search policy into the section defining the term "pat down," I find that the real reason for their rejection was the content and not the location of the language and that Respondent made no effort to reach agreement with the Union on a different location for the proposed language. Moreover, Respondent's asserted justification, merely underscores the fact that bargaining had not been completed.

Footnote # 7 for
56 FLRA No. 50

• ALJ's Decision

Moreover, Respondent apparently concedes that an exception already exists which would justify searching a suspect's mouth for weapons or contraband (such as drugs) without first obtaining a warrant. If so, the Union's hypothetical example to support its proposal breaks down.

Footnote # 8 for
56 FLRA No. 50

• ALJ's Decision

28 CFR § 50.15, by its terms, applies to Federal employees, defined in subsection (a) to include, "present and former Federal officials and employees." The mere fact that the "federal employing agency", in this case INS, is a component of the Justice Department, does not alter the fact that in deciding whether to provide legal representation to a Border Patrol Officer, the Attorney General would be applying a standard applicable to all employees of the Federal government rather than an internal regulation applicable only to employees within the Department of Justice.

Footnote # 9 for
56 FLRA No. 50

• ALJ's Decision

The Union asserts that Respondent was not represented at these negotiations by individuals authorized to reach an agreement, and that such failure is indicative of bad faith which should be considered as a factor in deciding whether a status quo ante remedy is appropriate. Without passing upon whether an agency's demonstrated bad faith during negotiations--e.g., "surface bargaining"-
-is a separate factor to consider, I find that the Union's contention in this case is unsupported by the record. Thus, the undisputed evidence shows that Ms. St. John-Mellado, the driving force behind and author of the body search policy, was present during the negotiations. It would be improper to conflate the parties' failure to resolve their disagreements during those bargaining sessions with the absence of authority on the part of Respondent's representatives to reach an agreement.

Footnote # 10 for
56 FLRA No. 50

• ALJ's Decision

As I understand the Union's position, there is no proposal seeking to eliminate the reporting requirement. If there had been, I would have found such a proposal to excessively interfere with management's right to protect its operations by having employees create contemporaneous records articulating their reasonable suspicions justifying the decisions to conduct strip searches. That is, the reports would allow Border Patrol Officers to refresh their recollections about the particular reasons why they strip searched suspects in the event of lawsuits filed against them and INS years later. Rather, the Union's approach would minimize the adverse effects of the reporting requirement by re-defining when such reports are required. In other words, by permitting the removal and tactile inspection of a suspect's outer layers of clothing without considering such action to be a strip search, the Union would indirectly eliminate the need for a report justifying why a strip search was deemed necessary.

Footnote # 11 for
56 FLRA No. 50

• ALJ's Decision

I specifically find a nationwide posting to be warranted since the new policy was issued by the Commissioner and was applicable to all the employees in the nationwide bargaining unit.