11:0090(27)CA - Justice, INS, Southern Region, El Paso, TX and AFGE, INS Council, Southern Region -- 1983 FLRAdec CA
[ v11 p90 ]
11:0090(27)CA
The decision of the Authority follows:
11 FLRA No. 27
UNITED STATES DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION SERVICE,
SOUTHERN REGION, EL PASO, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL,
SOUTHERN REGION
Charging Party
Case No. 6-CA-294
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action.
Exceptions to the Judge's Decision relating to the recommended remedy
were filed by the Charging Party.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, as modified herein.
For approximately 2 years prior to the events giving rise to the
unfair labor practice complaint herein, the announced policy and
practice at the Respondent's El Paso Detention and Deportation Center
(the Center) had been to transfer quickly to the county jail those
aliens considered disruptive to the security and safety of the Center.
Due to lack of funds, the Center had been told by its regional
headquarters to cut down on detention expenditures as much as possible,
and not to exceed allocated funds until it received authority to do so.
As a result, the Acting Director at the Center issued a memorandum to
detention officers which stated that, because of the shortage of funds,
no aliens would be transferred from the Center to the county jail for
the rest of the year without authorization of higher level supervisory
officials who would first determine whether funds were available for
such purpose. Accordingly, disruptive aliens were retained at the
Center for longer periods than previously was the practice.
The Judge correctly observed that the Respondent had no obligation to
bargain concerning the decision to effect the change announced in the
cited memorandum. He found, however, that Respondent did have an
obligation to give the employees' exclusive representative notice and a
reasonable opportunity to bargain concerning the impact and
implementation of the decision and that the failure to do so violated
section 7116(a)(1) and (5) of the Statute. /1A/
The Authority cannot adopt, however, the Judge's general conclusion
that a status quo ante remedy would not be warranted in cases where
there was a failure to negotiate impact and implementation. As the
Authority stated in a recent decision issued after the Judge's Decision
herein, Federal Correctional Institution, 8 FLRA No. 111, at 2-3 (1982):
(S)tatus quo ante remedies may be issued in certain refusal to
bargain cases even where the agency's decision itself was not
negotiable. . . . However, the appropriateness of a status quo
ante remedy must be determined on a case-by-case basis, carefully
balancing the nature and circumstances of the particular violation
against the degree of disruption in government operations that
would be caused by such a remedy. Accordingly, in determining
whether a status quo ante remedy would be appropriate in any
specific case involving a violation of the duty to bargain over
impact and implementation, the Authority considers, among other
things, (1) whether, and when, notice was given to the union by
the agency concerning the action or change decided upon; (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
willfulness 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. (Footnote omitted.)
In the instant case, the Authority finds that the Charging Party's
exception requesting a status quo ante remedy must be rejected. Thus,
balancing the nature and circumstances of the violation against the
degree of disruption in government operations that would be caused by
such a remedy, and taking into consideration the factors enumerated in
Federal Correctional Institution, the Authority concludes that a
prospective bargaining order, giving the employees' exclusive
representative an opportunity to present proposals concerning the impact
and implementation of the policy change, will fully remedy the violation
in this case and will effectuate the purposes and policies of the
Statute. In this regard, the Authority notes particularly that the
change in policy concerning the processing of disruptive aliens was
announced as a temporary measure precipitated by the Respondent's need
to have certain expenditures reviewed and approved in advance, on a
short-term basis in order to avoid exceeding allocated funds. The
Authority further notes that the Respondent's operations would be
significantly disrupted by an order requiring the reestablishment of the
previous policy. In this connection, such an order would require
Respondent to reinstate its prior practice of routinely sending certain
aliens to the county jail, without regard to authorization of higher
level supervisory officials who would first determine whether funds were
available.
Inasmuch as the violation herein may be adequately remedied by a
prospective bargaining order, which would require the parties to
negotiate concerning any possible impact of the change and its
implementation to the extent that employees in the bargaining unit may
be affected thereby; in view of the anticipated short duration of the
impact on unit employees caused by the change in policy; and in light
of the likelihood that a return to the status quo ante would disrupt or
impair the efficiency and effectiveness of the Respondent's operations,
the Authority will not order a status quo ante remedy in the
circumstances of this case.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the United States Department of Justice, Immigration
and Naturalization Service, Southern Region, El Paso, Texas shall:
1. Cease and desist from:
(a) Instituting any change in procedures for the detention of
dangerous aliens at its El Paso Detention Center without first notifying
the American Federation of Government Employees, AFL-CIO, Local Union
1210, and affording it the opportunity to negotiate concerning the
procedures to be observed in implementing such change and concerning the
impact such change will have on adversely affected employees.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify American Federation of Government Employees, AFL-CIO,
Local Union 1210, of any intended change in procedures for the detention
of dangerous aliens at the El Paso Detention Center and, upon request,
negotiate concerning the procedures to be observed in implementing such
change, and concerning the impact such change will have on adversely
affected employees.
(b) Upon request, negotiate with the American Federation of
Government Employees, Local 1210, concerning the impact and
implementation of the changes requiring authorization of higher level
supervisory officials before sending disruptive aliens to the county
jail.
(c) Post at the El Paso Detention Center, District 15 of the United
States Department of Justice, Immigration and Naturalization Service,
Southern Region, copies of the attached Notice on forms to be furnished
by the Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by the District Director of the United States
Department of Justice, Immigration and Naturalization Service, Southern
Region, El Paso, Texas, 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 said
Notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director, Region VI, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply herewith.
Issued, Washington, D.C., January 20, 1983
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
Opinion of Ronald W. Haughton, Chairman:
I concur with my colleagues that the unilateral change in the
processing of dangerous aliens, announced by the Respondent's El Paso
Detention and Deportation Center (the Center) in a memorandum, without
affording the employees' exclusive representative notice and a
reasonable opportunity to bargain concerning the impact and
implementation of the decision, violated section 7116(a)(1) and (5) of
the Statute.
However, I disagree with my colleagues insofar as they adopt the
Judge's conclusion that a status quo ante remedy is not warranted in
this case. Rather, I conclude, in agreement with the Charging Party's
exceptions, that a status quo ante remedy is warranted herein based upon
a careful balancing and consideration of the specific factors enumerated
by the Authority in Federal Correctional Institution, 8 FLRA No. 111
(1982). Thus, not only did the Center fail to give the exclusive
representative any notice of the change in policy, but the record
indicates that the unilaterally promulgated change in the processing of
dangerous aliens significantly increased the hazards to all detention
officers at the facility.
The Center instituted the change in practice in order to effectuate a
reduction in expenditures pursuant to a directive from regional
headquarters. However, the very nature of the requirement that the
exclusive representative of employees be afforded the opportunity to
negotiate the procedures concerning the implementation and impact of
such a change presumes that through the process of negotiation other
means might have been agreed upon as to how management would exercise
its discretion in meeting its goal. Thus, weighing the substantial
impact of the unilateral change on unit employees against the relatively
minimal degree of disruption in the Center's operations that would be
caused by requiring a return to the preexisting practice regarding the
detention or transfer of dangerous aliens, pending negotiations with the
exclusive bargaining representative, I conclude that a status quo ante
remedy is appropriate in order to effectuate the purposes and policies
of the Statute. See San Antonio Air Logistics Center (AFLC), Kelly Air
Force Base, Texas, 5 FLRA No. 22 (1981); Norfolk Naval Shipyard,
Portsmouth, Virginia, 6 FLRA No. 22 (1981).
Accordingly, I respectfully dissent from that portion of the decision
which rejects the request for a status quo ante remedy herein. Issued,
Washington, D.C., January 20, 1983
Ronald W. Haughton, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any change in procedures for the detention of
dangerous aliens at our El Paso Detention Center without first notifying
the American Federation of Government Employees, AFL-CIO, Local Union
1210, and affording it the opportunity to negotiate concerning the
procedures to be observed in implementing such change, and concerning
the impact such change will have on adversely affected employees.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL notify American Federation of Government Employees, AFL-CIO,
Local Union 1210 of any intended change in procedures for the detention
of dangerous aliens at the El Paso Detention Center and, upon request,
negotiate concerning the procedures to be observed in implementing such
change, and concerning the impact such change will have on adversely
affected employees.
(Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Federal Labor Relations Authority, Region VI, whose address
is: Bryan & Ervay Streets, Room 450, P.O. Box 2640, Dallas, Texas
75221, and whose telephone number is: (214) 729-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Irene Jackson, Esquire
For the General Counsel
Mr. Ramon Lopez
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.s.c.
section 7101, et seq., and the Rules and Regulations issued thereunder,
Fed. Reg., Vol. 45, No. 2, January 17, 1980, 5 C.F.R. CHAPTER XIV, PART
2411, ET SEQ.
Pursuant to a charge filed on October 26, 1979, by the American
Federation of Government Employees, AFL-CIO, Immigration and
Naturalization Service Control, Southern Region (hereinafter called the
"Union"), a Complaint and Notice of Hearing was issued on February 27,
1980, by the Regional Director for Region VI, Federal Labor Relations
Authority, Dallas, Texas. The Complaint alleges that the United States
Department of Justice, Immigration and Naturalization Service, Southern
Region, (hereinafter called the Respondent or Center), violated Sections
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (hereinafter called the Statute), by virtue of its actions in
unilaterally changing terms and conditions of employment by implementing
a policy of retaining dangerous illegal aliens at its El Paso Detention
Center without furnishing American Federation of Government Employees,
Local Union 1210, (hereinafter called the Union) an opportunity to
bargain over the change and/or the impact and implementation of the
change.
A hearing was held in the instant matter on May 21, 1980, in El Paso,
Texas. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing
on the issues herein. The General Counsel submitted a brief which has
been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendation.
Findings of Fact
The Union is the certified exclusive representative for all personnel
except those assigned to Border Patrol Sectors and others excluded
coverage by the Civil Service Reform Act throughout the United States.
Respondent and the Union are parties of a National Agreement covering
the above mentioned employees. The Union represents employees in the
Southern Region, including those at the El Paso, Texas Detention and
Deportation Center.
The National Agreement contains the following provisions:
Section 3E reads:
Representatives of the Service and the Union at the District
level shall have the opportunity to meet monthly or at any time at
the request of either party for the settlement of local problems
and for the improvement of communications, understanding, and
cooperation between the Service and units of the Union. Any
understanding reached at these meetings shall be recorded, signed
by the parties involved, and copies forwarded to the local
president or designated representative and the Regional
Commissioner. Such understanding will remain in effect until
amended or rescinded by mutual agreement.
Section 3 G reads:
The parties recognize that from time to time during the life of
the agreement, the need will arise for management to change
existing Service regulations covering personnel policies,
practices, and/or working conditions not covered by this
agreement. The Service shall present the changes it wishes to
make to existing rules, regulations, and existing practices to the
Union in writing. The Service recognizes that this obligation
exists at the national, Regional and District level when such
changes are to be made. The Union will present its views (which
must be responsive to either the proposed change or the impact of
the proposed change) within a set time after receiving notice from
management of the proposed change. The time will be:
22 Work Days at National Level
10 Work Days at Regional Level
10 Work Days at District Level
If disagreement exists, either the Service or the Union may
serve notice on the others of its interest to enter into formal
negotiations on the subject matter. The Union will request
negotiations within 5 work days of receipt of the Service
response. Such negotiations must begin within 5 work days of
receipt by the other party of a request to negotiate. Reasonable
extensions of these time limits may be granted on request.
The records shows that the National Agreement was negotiated between
the Commissioner of the Immigration and Naturalization Service and the
American Federation of Government Employees, INS Council which is
nationwide. The parties also entered agreements at the regional level
with regional representatives and at the local level with the various
District Directors. The record also established that Union officials
pursuant to Article 3E of the agreement have negotiated terms and
conditions of employment with the District Director, El Paso District.
In this regard, an October 10, 1979 agreement was entered into between
the parties involving safety and health.
The El Paso, Texas, Center is the headquarters for District 15, which
is responsible for sixteen counties in east Texas and New Mexico. The
District Director reports to the Regional Director in Dallas, Texas.
The function of the Center is to house illegal aliens apprehended in
Texas or brought to El Paso from other areas of the country, until such
time as they are made ready for either deportation or voluntary
departure. The alien comes either from the United States Marshall's
Office or from other internal immigration offices located throughout the
United States. When aliens arrive at the Center either by bus, plane,
or commercial aircraft, they are under arrest.
Immigration Detention Officers employed at the center have the
primary responsibility for preventing aliens from escaping. The
Immigration Detention Officer is also responsible for the health and
safety of the aliens and the maintenance of order in the camp and
general overseeing of aliens.
The Center is a large compound consisting of four barracks, split
into two sections of two barracks each. The isolation or maximum
security area at the Center is approximately 20x30x35 feet. It is
located in the main section of the front part of the compound, and next
to the Control Area, which usually is manned by one detention officer.
The isolation area contains four cells with wooden doors.
The Union contends that the prior practice for dealing with dangerous
aliens was established in December 1, 1977 by Charles Perzes, District
Director, El Paso District, in a memorandum which stated:
The area heretofore referred to as maximum security will be
called an isolation area, and only those people that should not be
mingled with the general population will be kept there, such as
homosexuals, people who are afraid for their safety, or persons
who are ill. Discipline cases or persons, who we believe are such
a high risk that they will disrupt the security and safety of the
facility, will be placed in the county jail.
The record reveals that an alien named Francisco Gurrola was
transferred from the county jail to the Center and remained there from
October 12 to October 16, 1979. Union Steward Manuel G. Bustamonte
testified that Gurrola, who was known to be a dangerous individual, was
brought in from back east, where he was apprehended and he was placed in
the county jail before being brought to the Center, but then was brought
to the Service Processing Center and kept there. Bustamonte protested
the detention of Gurralo to his supervisor Max Seyler. According to
Bustamonte, Seyler told him that this alien was not going to be kept
there long, that it was just a temporary situation, and that he would be
removed sometime that day to a U.S. Magistrate for further action.
On October 16, 1979, Robert E. Lally, Acting Director at the
Detention Center sent a memorandum to detention officers stating that:
Because of the shortage of funds between now and the end of the
year no aliens are to be transferred to the county jail from the
Service Processing Center.
In case a situation arises at night or during a week-end in
which an alien would originally be sent to county jail, he should
be held in isolation until office hours when Mr. Seyler or I can
review his case and determine if funds are available to pay for
his jail detention. /2/
Later Bustomante again talked with Lally about Gurrola. During this
conversation Lally stated that there was nothing he could do in regard
to this action, that it had come down from Region and that they just had
to obey by this. Mr. Lally testified that memorandum of October 16,
1979 was issued after a conversation with the Regional office in which
he was told to cut down on detention money as much as possible and not
to run over allocated funds until he received their authority.
According to Lally, the Center was very short of funds and had to make
sure that it was not committed to funds it did not have. He testified
that the Regional office allots so much money to the Center every month
with which it must feed prisoners, buy cleaning materials, gasoline for
vehicles, equipment, tools and maintenance supplies for the Center. In
addition to the above, the Center must pay the county jail $15.00 per
day for each alien housed there. Lally states that the October 16, 1979
memorandum merely said, "don't send them to jail until we check on the
funds to see if we can get the necessary funds to detain them."
Under the new system, as set out in the memorandum, the alien would
be housed longer in isolation and the detention officers would be
exposed to aliens for a longer period of time. According to Bustamonte
this exposure was in cells which were not really secured. The purpose
of the memorandum then according to Lally was to take away from a
supervisor the authority to jail aliens on his own initiative during
other than office hours.
Bustamonte testified that the actual policy at the time of isolation
of Gurralo was that if an alien were dangerous, he would be placed in
the county jail. /3/
Detention officers review the I-213 or "Report of a Deportable Alien"
of incoming aliens to determine their status. According to the
testimony of Bustamonte the detention officer who books the alien into
the Center makes everyone aware in cases where the alien is considered
dangerous. The individual detention officer would also make the
supervisor aware of the dangerous status of the individual alien and the
supervisor would make a determination as to whether or not an individual
would be kept in the county jail or at the Center. The Union
interpreted the December 1977 memorandum to mean that any alien who was
dangerous would be placed in the county jail. Mr. Lally testified that
the special procedures taken to isolate aliens depended on whether the
alien had recently been disruptive in jail or detention. The I-213 form
containing biographical data of the alien, the conditions of his
apprehension, location, time, and it also contains a narrative portion
on the bottom of the form on which the Investigator or Border Patrolman
states why the person is an illegal alien is reviewed. The detention
officer also has access to other enforcement agencies's records and is
able to obtain information concerning prior convictions for crimes or to
determine whether an alien has a history of violence.
According to Mr. Lally, once an alien has been researched, found to
have no weapons and if he is behaving himself, he is put into the
general camp population. Approximately 200 aliens are detained in the
center on a daily basis. The final decision as to whether or not an
alien will disrupt the operation of the camp is a management decision to
be made by the individual supervisor once information has been supplied
to him by the detention officers. Finally, Mr. Lally contends that the
basic consideration for determining how an individual will be held in
custody is "how the person behaved in the custody of the Border Patrol
and others holding him in custody before being brought to the Detention
Center." Also, the record shows that individual aliens who are
considered dangerous have been held in the Center before and after the
Gurrola incident of October 1979. The record testimony is that these
individuals have not caused any problems. However, according to the
testimony of Bustamonte holding of such individuals makes the detention
officers work more dangerous, principally because the individual officer
is exposed to the alien for a longer period of time.
Respondent introduced evidence to show that the detention officers
receive hazardous duty pay for the work performed at the center. The
officers are entitled to this pay and special credited service as law
enforcement officers which entitle them to retirement at age 50 or over
with 20 or more years of service.
Discussion and Conclusions
The cases are legion which state that prior to exercising a reserved
management right, an agency must give the Union adequate notice of its
decision so that a Union will have a meaningful opportunity to bargain
on impact and implementation prior to the actual effectuation of the
decision. Respondent takes the position that the Union has failed to
request negotiations. Where adequate notice is given, a union is
obligated to request negotiations in order to give rise to the agency's
obligation to bargain. Internal Revenue Service (IRS) and Brooklyn
District Office, IRS, 2 FLRA No. 76 (1980). It has also been held that
an agency must give specific notice to the union of any intended change.
Department of the Treasury, Internal Revenue Service, Indianapolis,
Indiana, 7 A/SLMR 844, A/SLMR No. 909 (1977). No notice was given in
this matter. Notwithstanding lack of notice, the Respondent has an
obligation to bargain. Here Respondent presented the Union with a fait
accompli, and it is not necessary for the Union, after the fact to
request bargaining.
Respondent's contention that there has been no demonstrable change in
working conditions of the detention officers is rejected. The record
reveals that the change in guidelines for the detention of known
dangerous aliens during other than work hours exposed detention officers
to hazardous work situations for a longer period of time and increased
the possibility of injury or loss of life or limb and clearly impacted
on their conditions of employment.
Respondent's contention that it has changed no conditions of
employment since detention officers already receive hazardous pay for
their work is also rejected. The fact that detention officers receive
such pay to perform hazardous work does not permit Respondent to
unilaterally impose new or additional hazardous duties or
responsibilities on the officers. Increasing the hazards of a job,
without bargaining with the exclusive representative is, in my view
violative of the Statute.
Upon inquiry the Union was told that there was nothing local
supervision at the detention center could do since "it had come down
from Region and (they) had to obey this." Given the fact that
contracting out is involved over which the Region had budgetary control,
I can readily believe that detention center supervision felt powerless
to take any action with the Union over this matter.
However, I find it is unnecessary to decide, as suggested by the
General Counsel that the bargaining level obligation must be established
in this matter. The question of whether or not the acts or conduct of
any agency management may provide the basis for finding an unfair labor
practice in the Federal sector at a lower organizational level has been
previously resolved. See Naval Air Rework Facility, Pensacola, Florida
and the Secretary of the Navy, Department of the Navy, Washington, D.C.,
6/ASLMR 68, A/SLMR No. 8; 6 FLRC 305 (FLRC No. 76A-37 (May 4, 1977)
Report No. 125; See also, Internal Revenue Service, Washington, D.C.
and Internal Revenue Service, Hardford District Office and National
Treasury Employees Union, 4 FLRA No. 77. Clearly there is an obligation
to bargain in this matter which could have been perfected at the
District level where the record established previous bargaining had
occurred.
Based on the foregoing, it is found that Respondent's unilateral
change in the processing of dangerous aliens, announced by the October
16, 1979 memorandum, without affording the exclusive representative a
reasonable opportunity to bargain is violative of Section 7116(a)(1) and
(5) of the Statute.
Since the Respondent had no obligation to meet and confer concerning
the decision to affect the change, a status quo remedy based on
Respondent's failure to negotiate the impact and implementation of the
decision would not be warranted. However, Respondent does have an
obligation to bargain upon request concerning impact and implementation
of the decision. Department of the Treasury, Internal Revenue Service,
Jacksonville District, Case No. 4-CA-50 (1), 3 FLRA No. 103 (July 17,
1980); Adjutant General's Office, Puerto Rico Air National Guard, 3
FLRA No. 55 (June 3, 1980); Department of the Air Force, 47th Flying
Training Wing, Laughlin Air Force Base, Texas, 2 FLRA No. 24.
Having found that the District Office of the Immigration and
Naturalization Service in El Paso, Texas has violated Sections
7116(a)(1) and (5) of the Statute, I recommend that the Authority issue
the following Order:
ORDER AND NOTICE
Pursuant to Sections 7118(a)(7)(A) of the Federal Labor Relations
Statute, 5 U.S.C. 7118(a)(7)(A), and Section 2423.29(b)(1) of the Rules
and Regulations, 5 C.F.R. 2423.29(b)(1), the Authority hereby orders
that the United States Department of Justice, Immigration and
Naturalization Service, Southern Region, El Paso, Texas shall:
1. Cease and desist from:
(a) Instituting any change in procedures for the detention of
dangerous aliens at its El Paso Detention center without first
notifying the American Federation of Government Employees,
AFL-CIO, Local Union 1210, and affording it the opportunity to
meet and confer, to the extent consonant with law and regulations,
concerning the procedures to be observed in implementing such
changes, and concerning the impact such change will have an
adversely affected employees.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, by American Federation of Government
Employees, AFL-CIO, Local Union 1210, meet and confer to the
extent consonant with law and regulations, concerning impact and
implementation of the changes of procedures for detaining
dangerous aliens on adversely affected employees.
(b) Post at the El Paso Detention Center, of District 15 of the
United States Department of Justice, Immigration and
Naturalization Service, Southern Region, copies of the attached
notice marked "Appendix" on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms they shall
be signed by the District Director of the United States Department
of Justice, Immigration and Naturalization Service, Southern
Region, El Paso, Texas, and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices are customarily
posted. Reasonable steps will be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Federal Labor Relations Authority in writing
within 30 days of this order as to what steps have been taken to
comply herewith.
ELI NASH, Jr.
Administrative Law Judge
Dated: November 25, 1980
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any change in procedures for the detention of
dangerous aliens without first notifying the American Federation of
Government Employees, AFL-CIO, Local Union 1210, and affording it an
opportunity to meet and confer, to the extent consonant with law and
regulations, concerning the procedures to be observed in implementing
such change, and concerning the impact such change will have on
adversely affected employees.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL upon request meet and negotiate with American Federation of
Government Employees, AFL-CIO, Local Union 1210, concerning the
procedures to be used in determining the detention of dangerous aliens
in the El Paso Detention Center and concerning the impact of such change
on adversely affected employees.
(Agency or Activity)
Dated: . . . By: . . .
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, Federal Labor Relations Authority, Region VI, whose
address is: Bryan & Ervay Street, Room 450, P.O. Box 2640, Dallas,
Texas 75221. Telephone number: (214) 729-4996.
/1A/ No exceptions were taken to these aspects of the Judge's
decision.
--------------- FOOTNOTES$ ---------------
/1/ The name appears as amended at the hearing.
/2/ The shifts at the Detention Center for Detention Officers are
8:00 a.m. to 4:00 p.m.; 4:00 p.m. to 12:00 p.m.; and 12:00 p.m. to 8:00
a.m. Mr. Lally testified that the other than office hours referred to
in the memo meant between the hours of 4:30 p.m. and 8:00 a.m. during
the week and from 4:30 p.m. Friday afternoon to 8:00 a.m. Monday
morning.
/3/ In December 1978, an alien who was apprehended for murder was
kept in the Detention isolation center from late December to early
January. At that time Bustamonte complained to Mr. Seyler, who told him
that he felt the Detention Center could do a better job in keeping this
alien and that he was afraid the El Paso County Jail might turn him
loose.