Number 136                    July 2000

COURT DECISIONS  |   FLRA   |   MSPB

Immigration and Naturalization Service, WA-CA-80124, May 5, 2000, 56 FLRA No. 50.

In finding that the agency committed an impact-and-implementation (I&I) ULP when it implemented changes in the agency's body search policy without responding to the union's bargaining request, the Authority rejected the agency's post-implementation statement that, in the absence of negotiable I&I proposals, the agency was free to implement the policy. "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." Immigration and Naturalization Service, WA-CA-80124, May 5, 2000, 56 FLRA No. 50.

The agency had notified the union of proposed changes in its body search policy and had met with it to discuss those changes. When it sent the union a revised draft of the policy, the union, on November 18, 1996, sent the agency its revised proposals and asked that the revised policy be held in abeyance pending completion of bargaining. The agency didn't respond to the union letter. On May 28, 1997, it sent a copy of the final body search policy to all its regional and district directors. On September 12, 1997, it sent a letter to the union, in which it said that it inadvertently sent the final policy to field offices before having notified the union of the agency's intent to implement the policy; but inasmuch as the union did not make any negotiable I&I proposals in its November 18, 1996, bargaining request, the agency was free to implement the policy. ULP proceedings followed and exceptions were filed to the ALJ's decision.

Condition-of-employment arguments rejected. The Authority rejected, among other things, the agency's claim that its body search policy is outside the duty to bargain because it doesn't concern conditions of employment. (The agency had argued that the policy is specifically provided for by the Immigration Act, which only incidentally affects conditions of employment.) The Authority noted that it had already rejected the argument that FLRA should recognize a limitation on collective bargaining that is similar to the limitation on grievances that was found by the D.C. Circuit in U. S. Customs Service v. FLRA, 43 F.3d 682 (1994) (where the court held that the negotiated grievance procedure could not be used to enforce laws that weren't primarily aimed at conditions of employment). And it also noted that it had already made clear in Bureau of Engraving and Printing, 50 FLRA No. 87, that mere reference to a matter in a statute is not sufficient to exclude it from the definition of conditions of employment.

[T]he 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. . . . 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.

Duty to bargain includes a duty to communicate. The Authority rejected the agency's contention that it was free to implement the policy because the union's proposals weren't negotiable. Before implementing a change in conditions of employment, the agency must give the union notice of the proposed change and afford it an opportunity to bargain. "This obligation," FLRA continued, "also includes, 'at a minimum, the requirement that a party respond to a bargaining request.' [McClellan AFB Exchange, 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."

FLRA further noted that, in unilateral change cases, the General Counsel doesn't have the burden of proving that a union submitted negotiable proposals. "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." Here, the agency didn't respond to the union's November 18, 1996, bargaining request by contending the proposals were nonnegotiable; it instead implemented the changes without responding to the proposals at all, thus not satisfying the aforementioned threshold requirement.

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 and 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. [Emphasis added.]

FLRA accordingly found that the agency violated the Statute "without regard to whether the proposals were negotiable."

The Authority split over the remedy. The ALJ decided against a status quo ante remedy on the ground that it would be disruptive. But the majority (Member Cabaniss dissenting) ordered such a remedy because, among other things, it found no record evidence indicating that such a remedy would be disruptive.

We report this case mainly because of FLRA's comments on bargaining conduct—specifically, on the need for on-going communication. In 56 FLRA No. 19, reported in Significant Cases No. 134, we noted in our comments that there is a burden on the agency to bring up any countervailing anti-disclosure interests in response to a union request for information in order that the union be given an opportunity to accommodate those concerns. In the case at bar, FLRA emphasizes the need to advise the union of the basis of the agency's belief that the union's proposals are nonnegotiable so that the union is given the opportunity to revise the proposals, or take other action. See, also, 54 FLRA No. 134, reported in Significant Cases No. 127, where Chairperson Segal said the following in a separate concurring opinion:

The obligation of an agency to bargain in good faith with a union requires that the agency must be willing to openly communicate with the union. Where the union has requested negotiations and the agency does not believe there is a duty to bargain, the agency should communicate to the union why the agency is refusing to honor the request to bargain. Such a response is necessary for both parties to determine whether, and when, negotiations should actually take place. . . . An agency that ignores a request to bargain acts at its peril[.]