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55 FLRA No. 19
U.S. Immigration and Naturalization Service Washington, D.C. and National Border Patrol Council AFGE, AFL-CIO Case No. SF-CA-30165 (Decided January 12, 1999)
The complaint alleged that the Respondent violated section 7116(a)(1), (5) and (6) of Statute by its actions in implementing a new Air Operations Manual (Manual) after the Union had requested the assistance of the Federal Service Impasses Panel (the Panel). The Judge found that the Respondent violated the Statute, as alleged in the complaint. He recommended an order directing the Respondent to rescind the Manual, restore the status quo ante, and make whole any employee adversely affected by the Manual's implementation. The Authority adopted the Judge's findings, conclusions, and recommendations only to the extent consistent with this decision. The Authority, however, did not adopt the Judge's conclusion that the General Counsel established that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute. By so doing, the Authority modified the approach that it will follow for resolving complaints alleging such violations. The case was remanded to the Judge to apply the approach adopted by the Authority.
The Authority noted that under the modified framework, the Authority's approach to determining whether an agency's implementation of changes in conditions of employment violates section 7116(a)(5) of the Statute remained unchanged. The Authority further stated that an additional violation of section 7116(a)(6) will be found only where the agency's implementation fails to cooperate with an impasse procedure or decision.
The Authority noted that resolving the Respondent's exceptions required that the Authority determine what it means to "fail or refuse to cooperate in impasse procedures and decisions" under section 7116(a)(6). The question presented was whether the mere filing of a request for Panel assistance is sufficient to establish that an agency's failure to maintain the status quo constitutes an unfair labor practice under section 7116(a)(6). The Authority concluded that the General Counsel must establish more than the facts that implementation occurred at a time when a request for assistance was pending before the Panel: the General Counsel must establish that the implementation failed to cooperate with an impasse procedure or decision. In this case, the Authority concluded that it could not make such determinations from the record and remanded the case back to the Judge to apply the approach adopted by the Authority.