18:0875(103)CA - INS, Eastern Regional Office (Burlington, VT) And National INS Council, AFGE -- 1985 FLRAdec CA



[ v18 p875 ]
18:0875(103)CA
The decision of the Authority follows:


 18 FLRA No. 103
 
 IMMIGRATION AND NATURALIZATION 
 SERVICE, EASTERN REGIONAL OFFICE 
 (BURLINGTON, VERMONT) 
 Respondent
 
 and 
 
 NATIONAL IMMIGRATION AND 
 NATURALIZATION SERVICE 
 COUNCIL, AFGE, AFL-CIO 
 Charging Party
 
                                            Case No. 1-CA-20278
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in the
 unfair labor practices alleged in the complaint, and recommending that
 it be ordered to cease and desist therefrom and take certain affirmative
 action.  Exceptions to the Judge's Decision were filed by the
 Respondent, and the General Counsel filed an opposition to the
 exceptions.
 
    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.
 
    The Judge found that in changing the term of reassignment with
 respect to the Respondent's upward mobility program, known as the
 Internal Reassignment Program (IRP), from a summer period to potentially
 a one-year period, and also expanding the coverage of the program to
 include positions GS-5 and above rather than only Immigration Inspector
 positions, it changed a past practice regarding conditions of employment
 without giving the Charging Party, the employees' exclusive
 representative, an opportunity to bargain concerning the impact and
 implementation of such changes.  In this connection, the Judge found
 that the Respondent violated its obligation to bargain when it refused
 to negotiate over these changes and, thus, Respondent violated section
 7116(a)(1) and (5) of the Statute.  /1/ and that a status quo ante
 remedy was warranted.
 
    The Authority agrees with the Judge's conclusion that the Respondent
 unilaterally made changes in its upward mobility program with respect to
 both the length of time of the reassignments and the positions covered
 by the program, thereby changing a past practice regarding conditions of
 employment.  The Authority further agrees with the Judge, contrary to
 the Respondent's contention, that such changes would have a reasonably
 foreseeable adverse impact on unit employees which is more than de
 minimis.  Thus, the revised upward mobility plan in effect extended the
 applicability of the program to additional categories within the unit
 and therefore to larger numbers of unit employees.  The employees thus
 affected are thereby subjected not only to possible reassignment, but
 also to a change in the nature and safety of their tasks.  Moreover, it
 is reasonably foreseeable that, by increasing the number of employees
 who might be considered for selection under the revised upward mobility
 plan, the opportunities for selection by those who had been previously
 eligible would be decreased.  Since the Judge in essence concluded that
 the Respondent violated the Statute based on its refusal to bargain over
 the impact and implementation proposals submitted by the Charging Party,
 the Authority must now determine whether those proposals, including
 proposals not specifically considered by the Judge, are within the
 Respondent's duty to bargain.
 
    The Authority determines that the following proposals are within the
 duty to bargain pursuant to section 7106(b)(2) of the Statute /2/ as
 they constitute negotiable procedures management would follow when
 exercising its rights under section 7106(a)(2) of the Statute:  /3/
 
          1.  The effective date for the implementation of the Internal
       Reassignment Program (IRP) will be the first pay period after
       November 15, 1982.
 
          13.  In choosing among otherwise qualified applicants whenever
       possible consideration shall be given to the selection of
       candidates who have not been previously selected to fill Internal
       Reassignment Plan positions in order to provide that the largest
       possible number of qualified applicants may be provided access to
       the training opportunities.
 
          14.  Whenever possible, in units and situations where field
       team work is involved volunteers shall be solicited to work with
       the Internal Reassignment Plan Selectee prior to their assignment
       to work with non-volunteer partners, and the desire of any officer
       not to work with the selectee shall not be construed to be
       disloyalty or uncooperativeness.
 
    Proposal 1 merely establishes the date for the Respondent's
 implementation of the IRP, i.e., the changes in the upward mobility
 program.  It is well established that procedures to be observed by
 management officials in the exercise of their statutory authority under
 section 7106 are within the duty to bargain unless, if adopted, they
 would deny such authority by preventing the agency from acting at all to
 exercise it.  American Federation of Government Employees, AFL-CIO,
 Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange,
 Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom. Department of
 Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir.
 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).  Under
 the circumstances herein, therefore, the proposal is within the duty to
 bargain under section 7106(b)(2) because although it would have delayed
 the Respondent's implementation of changes in the program, it would not
 have prevented management from acting at all to implement those changes
 pursuant to its rights under section 7106(a)(2) of the Statute.
 
    Proposal 13 urges but does not require selection of qualified
 candidates who have not previously been selected to fill IRP positions.
 Since the proposal does not restrict the Respondent's right to select
 any candidate or prevent it from considering other categories of
 candidates, Proposal 13 is not inconsistent with section 7106(a)(2)(C)
 and is within the duty to bargain.  Cf. American Federation of State,
 County and Municipal Employees, AFL-CIO, Local 2027 and Action,
 Washington, D.C., 12 FLRA 643 (1983) (Union Proposal 3) (proposal
 mandating selection of in-house applicants is outside the duty to
 bargain under section 7106(a)(2)(C) because it prevented the agency from
 soliciting and considering outside applicants).
 
    Proposal 14 provides that the Respondent will, whenever possible,
 solicit volunteers to work with the IRP selectees in units and
 situations where the Respondent has determined field team work is
 involved before assigning the selectee to work with a non-volunteer
 partner.  The Authority has held that where, in management's judgment,
 two or more employees are equally qualified and capable of performing
 the work, the selection of any one of those employees to perform the
 work would be consistent with management's exercise of its rights to
 assign employees under section 7106(a)(2)(A) and to assign work under
 section 7106(a)(2)(B) of the Statute.  Under such circumstances, the
 procedure by which employees previously judged by management to be
 equally qualified will be selected to perform the work is negotiable
 under section 7106(b)(2).  Laborers International Union of North
 America, AFL-CIO, Local 1276 and Veterans Administration, National
 Cemetery Office, San Francisco, California, 9 FLRA 703 (1982);  American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 83 (1981).  Based
 on the language of the proposal and the absence of Resp4ndent arguments
 in the record to the contrary, the Authority concludes the proposal
 involves the assignment of employees, who have been previously judged by
 management to be equally qualified and capable of performing the work,
 to work as partners with IRP selectees.  In this connection, the
 proposal obligates the Respondent to solicit volunteers only "whenever
 possible," i.e., only when, in management's judgement, there are
 employees equally qualified and capable of performing the work, prior to
 the Respondent assigning the work to a non-volunteer.  See generally
 American Federation of Government Employees, AFL-CIO, Local 1692 and
 Department of the Air Force, Mather Air Force Base, California, 8 FLRA
 194 (1982) (Provision 2).  Thus, if in management's judgment, employees
 are not equally qualified and capable, the proposal would permit
 management to select an employee for the assignment without reference to
 volunteers.  Moreover, since the proposal does not require that any
 volunteer be selected, it would permit management, after considering the
 volunteers, to select non-volunteers for the assignments.  Therefore,
 the proposal does not interfere with management's rights under section
 7106(a)(2)(A) and (a)(2)(B) of the Statute and is within the duty to
 bargain under section 7106(b)(2).  See also American Federation of
 Government Employees, Council of Social Security District Office Locals
 and Department of Health and Human Services, Social Security
 Administration, 11 FLRA 608 (1983) (Proposal 1).
 
    The following proposals are inconsistent with either section
 7106(a)(2) of the Statute and thus outside the duty to bargain, or with
 section 7106(b)(1) and negotiable only at the Respondent's election:
 
          3.  Employees selected for participation in the IRP (IRPs)
       shall successfully complete the Basic Officers Corps Training
       appropriate to the branch prior to entering on duty in the
       program.
 
          4.  IRPs shall be assigned to work with a career tenured
       officer who shall assist, advise, counsel, and evaluate the IRPs.
       Such evaluations shall be maintained in the IRPs training file as
       required in other training programs.  Acceptance, or declination
       of such a training role on the part of the training officer shall
       be voluntary, and shall not be the basis of any adverse or
       disciplinary action against an employee and shall not be construed
       to constitute disloyalty or uncooperativeness on the part of the
       training officer.
 
          5.  IRPs shall be assigned to work the same shift as their
       training officer.
 
          6.  The maximum duration of an IRP detail shall be three (3)
       months.
 
          7.  No IRPs shall be selected for more than one such training
       detail in any fiscal year, nor more than two (2) such details in
       his/her career.  No IRPs may serve more than one (1) detail in any
       branch, except that these limitations may be waived when the
       District Director and Local President concur that the pool of
       qualified candidates has been exhausted in that District.
 
          8.  The IRP is of a temporary and training nature and IRPs
       shall not, therefore, be eligible for overtime unless all
       permanent and WAE employees have been first offered the
       opportunity to work the overtime.
 
          9.  No more than five percent (5%) of the workforce in any
       given branch may be composed of IRPs.
 
          10.  No IRP shall be implemented in any District unless the
       branches to be involved are staffed at ninety-five percent (95%)
       of permanent allocated positions, except that for the purposes of
       this calculation WAEs shall not be considered to be occupying
       permanent positions.  No IRP shall be implemented unless there is
       a clear and demonstrated need for additional manpower in the
       branch.
 
          No WAE shall be scheduled to work less than forty (40) hours a
       week (except at their own request), nor be terminated for lack of
       work, while an IRP is in effect, or while negotiations are
       underway for the implementation of an IRP.
 
    With respect to these proposals, Proposal 3 requires that employees
 involved in an IRP complete specific formal training.  The Authority has
 found that proposals which would contractually obligate an agency to
 provide formal training and to assign employees to specific types of
 training programs are outside the duty to bargain because the assignment
 of training under such circumstances constitutes an assignment of work
 the negotiation of which is inconsistent with management's right to
 assign work under section 7106(a)(2)(B).  See generally International
 Brotherhood of Electrical Workers, AFL-CIO, Local 121 and U.S.
 Government Printing Office, Washington, D.C., 8 FLRA 188 (1982)
 (Proposal 1);  International Association of Fire Fighters, AFL-CIO, CLC,
 Local F-116 and Department of the Air Force, Vandenberg Air Force Base,
 California, 7 FLRA 752 (1982);  National Association of Air Traffic
 Specialists and Department of Transportation, Federal Aviation
 Administration, 6 FLRA 588 (1981) (Proposals I-III);  International
 Association of Fire Fighters, Local F-61 and Philadelphia Naval
 Shipyard, 3 FLRA 437, 439 (1980).  Thus, Proposal 3 is outside the duty
 to bargain under section 7106(a)(2)(B) because it requires the
 Respondent to assign employees to specific training programs.
 
    Proposal 4 requires the Respondent to assign career tenured officers
 to work with IRP selectees and to assign specified functions to the
 career tenured officers.  Thus, this would implicitly prevent assigning
 those functions to other personnel and, in this regard, is not
 materially different from section 8 of the union proposal before the
 Authority in Congressional Research Employees Association and The
 Liberty of Congress, 3 FLRA 737 (1980) (proposal which assigned specific
 duties to particular positions is held outside the duty to bargain).
 For the reasons detailed in that decision, the Authority finds Union
 Proposal 4 herein is outside the duty to bargain, in that it is
 inconsistent with management's right to "assign work" under section
 7106(a)(2)(B) of the Statute.  See American Federation of Government
 Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army
 Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (Union
 Proposal 2).
 
    Proposal 5 requires the Respondent to assign IRP selectees and their
 training officers to the same shift whether or not the Respondent would
 ordinarily make such assignment.  In the case where the Respondent would
 not ordinarily assign the IRP selectee to the same shift as his or her
 training officer, the proposal would directly affect and be
 determinative of both the numbers and the types of employees that the
 Respondent would assign to work projects or tours of duty and negotiable
 only at the election of the Respondent under section 7106(b)(1) of the
 Statute.  /4/ See American Federation of Government Employees, AFL-CIO,
 National Immigration & Naturalization Service Council and U.S.
 Department of Justice, Immigration & Naturalization Service, 8 FLRA 347
 (1982) (Union Proposal 15).
 
    Proposal 6 limits the duration of assignments under the IRP to 3
 months.  In this connection, proposals which seek to determine the
 duration of work assignments have been found to restrict the right to
 assign employees and thus are inconsistent with section 7106(a)(2)(A).
 See American Federation of Government Employees, AFL-CIO, Local 916 and
 Tinker Air Force Base, Oklahoma, 7 FLRA 292 (1981) (Provision II,
 Paragraph 3).  Proposal 6 therefore is outside the duty to bargain
 because it is inconsistent with section 7106(a)(2)(A) of the Statute.
 
    Proposal 7 places various limitations on the Respondent's ability to
 select specific employees for positions, referred to as "training
 details," under the IRP.  /5/ Section 7106(a)(2)(C) of the Statute
 reserves to management the right to make selections for appointments to
 positions from among properly ranked and certified candidates for
 promotion or from any other appropriate source.  The Authority has held
 that proposals which limit the consideration of types of applicants or
 prevent management from expanding the area of consideration or from
 selecting a candidate to fill a position from any other appropriate
 source to be inconsistent with section 7106(a)(2)(C).  Since Proposal 7
 would limit the Respondent's ability to select an employee for an
 appointment to an IRP position if the employee has already been selected
 during that fiscal year, it is outside the duty to bargain under section
 7106(a)(2)(C).  See generally American Federation of State, County and
 Municipal Employees, AFL-CIO, Local 2027 and Action, Washington, D.C.,
 12 FLRA 643 (1983) (Union Proposal 3).
 
    Proposal 8 places limitations on the Respondent's ability to assign
 overtime work to IRPs.  The Authority has held that proposals which
 limit management's discretion to determine which employees will receive
 particular work assignments directly interfere with the right to assign
 work under section 7106(a)(2)(B).  American Federation of Government
 Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
 Department of Agriculture, Food Safety and Quality Service, Washington,
 D.C., 9 FLRA 663 (1982) (Union Proposal 1);  American Federation of
 Government Employees, AFL-CIO, International Council of U.S. Marshals
 Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA
 672 (1983) (Union Proposals 2 and 3).  Thus, it is unnecessary to
 consider the Respondent's other contention that the proposal is outside
 its duty to bargain, since Proposal 8 is outside the duty to bargain
 under section 7106(a)(2)(B) of the Statute.
 
    Proposal 9 restricts the number of positions in a branch which can be
 filled under the IRP.  Thus, the proposal concerns both the number and
 types of positions to be reserved for filling through the upward
 mobility program.  The Authority has held that proposals requiring the
 agency to fill a certain percentage of positions through upward mobility
 are inconsistent with the agency's authority under section 7106(a)(2)(A)
 of the Statute to hire and assign employees.  See American Federation of
 Government Employees, AFL-CIO, Local 32 and Office of Personnel
 Management, Washington, D.C., 8 FLRA 460 (1982) (Proposal IV);  American
 Federation of Government Employees, AFL-CIO, Council of Prison Locals
 and Department of Justice, Bureau of Prisons, 11 FLRA 286 (1983)
 (Provision 1).  Thus, Proposal 9 is outside the duty to bargain under
 section 7106(a)(2)(A).
 
    The first paragraph of Proposal 10, as with Proposal 9, places
 percentage limitations on the Respondent's right to fill positions and,
 thus, is outside the duty to bargain under section 7106(a)(2)(A).  The
 second paragraph of the proposal, as with Proposal 8, limits the
 Respondent with respect to the types of employees to assign work and,
 thus, is outside the duty to bargain under section 7106(a)(2)(B).
 
    The Respondent did not specifically claim that Proposal 11,
 concerning the weight to be given different kinds of service when
 filling permanent appointments, and Proposal 12, limiting eligibility
 for IRP positions to employees within a district or commuting area, were
 nonnegotiable but refused the Union's request to bargain for other
 reasons.  With respect to these proposals, the Respondent claimed, in
 essence, that it was unnecessary to bargain over them because the
 matters proposed were granted by or covered by the current plan, and the
 Respondent's claim is not specifically disputed in the record.
 Therefore, it has not been established that the Respondent unlawfully
 refused to bargain over these two proposals and it is unnecessary to
 pass upon the negotiability thereof.
 
    Finally, with respect to another proposal, which concerned future
 negotiations, the Respondent based its defense to the refusal to bargain
 allegation, in part, on an assertion that it had made no change in the
 previous upward mobility program, known as the Summer Internal
 Reassignment Program.  The Authority has determined that this defense
 cannot be sustained in adopting the Judge's conclusion to the contrary,
 supra, p. 2.  Further, since this proposal concerns future negotiations
 and does not present definite matters for the Respondent to negotiate
 with the Union, it is unnecessary to pass upon the negotiability of such
 proposal at this time.
 
    The Judge, having concluded that the Respondent violated section
 7116(a)(1) and (5) of the Statute by its refusal to bargain on impact
 and implementation matters proffered by the Charging Party, also found
 that a status quo ante remedy was appropriate under the circumstances.
 The Authority agrees with the Judge that the Respondent's unilateral
 changes in the upward mobility program without affording the Charging
 Party an opportunity to bargain with respect to the impact and
 implementation of the decision constitutes a violation of section
 7116(a)(1) and (5) of the Statute.  However, upon consideration of the
 factors set forth in Federal Correctional Institution, 8 FLRA 604
 (1982), the Authority finds that it would not effectuate the purposes
 and policies of the Statute to issue a status quo ante order herein.  In
 this connection, the Respondent notified the Charging Party that it was
 modifying the upward mobility program, i.e., the changes were embodied
 in the IRP.  The Charging Party then made a request to bargain and
 submitted 14 proposals, all of which the Respondent contended to be
 outside its duty to bargain.  The Authority has sustained the Respondent
 as to 10 of the proposals.  Thus, it is not apparent that the Respondent
 wilfully failed to discharge its bargaining obligation under the
 Statute.  Moreover, the record does not indicate that, as of the date of
 the hearing, the Respondent made any reassignments pursuant to the IRP.
 Thus, since no actions were taken as a result of Respondent's unlawful
 implementation of the IRP, the Authority concludes that a prospective
 bargaining order will fully remedy the bargaining violation.
 
                                   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 Immigration and Naturalization Service, Eastern
 Regional Office (Burlington, Vermont), shall:
 
    1.  Cease and desist from:
 
    (a) Implementing changes in the upward mobility program known as the
 Internal Reassignment Program, without first notifying the National
 Immigration and Naturalization Council, AFGE, the exclusive
 representative of unit employees, and affording it the opportunity to
 negotiate concerning the impact and implementation of the program.
 
    (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:
 
    (a) Upon request of the National Immigration and Naturalization
 Council, AFGE, the exclusive representative of unit employees, negotiate
 to the extent consonant with law and regulation concerning the impact
 and implementation of the Internal Reassignment Program.
 
    (b) Post at its facility at Burlington, Vermont, 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
 Regional Commissioner, or his designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including bulletin boards and other places where notices to employees
 are customarily posted.  Reasonable steps shall be taken to insure that
 such Notices are not altered, defaced, or covered by any other material.
 
    (c) Notify the Regional Director, Region I, 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., June 28, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       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 implement any changes in the Internal Reassignment
 Program without first notifying the National Immigration and
 Naturalization Council, AFGE, the exclusive bargaining representative of
 unit employees, and affording it the opportunity to negotiate concerning
 the impact and implementation of the program.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of rights assured by the Federal
 Service Labor-Management Relations Statute.
 
    WE WILL upon request of the National Immigration and Naturalization
 Council, AFGE, the exclusive bargaining representative of unit
 employees, negotiate to the extent consonant with law and regulation
 concerning the impact and implementation of the Internal Reassignment
 Program.
                                       (Activity)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region I, Federal Labor Relations Authority, whose address is:
  441 Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone
 number is:  (617) 223-0920.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Joseph Mangiulli, Esq.
    Judith Dec
    For the Respondent
 
    Daniel Sutton, Esq.
    For the General Counsel
 
    Before:  WILLIAM NAIMARK, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding arises under the Federal Service Labor-Management
 Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute).
 It is based on a charge filed on June 21, 1982 by National Immigration
 and Naturalization Service Council, AFGE (AFL-CIO) (herein called the
 Union) against Immigration and Naturalization Service, Eastern Regional
 Office, Burlington, Vermont (herein called Respondent).
 
    Pursuant to a Complaint and Notice of Hearing issued on October 18,
 1982 by the Regional Director for the Federal Labor Relations Authority,
 Boston, Massachusetts, a hearing was held before the undersigned on
 December 15, 1982 at New York, New York.
 
    The Complaint alleged, in substance, that on or about October 1, 1982
 Respondent unilaterally changed conditions of employment by implementing
 an Internal Reassignment Program without affording the Union an
 opportunity to bargain concerning the impact and implementation
 thereof-- all in violation of Section 7116(a)(1) and (5) of the Statute.
 
    Respondent's Answer, dated November 10, 1982, denied the aforesaid
 allegation and the commission of any unfair labor practices.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein the Union has been, and still is,
 the exclusive representative of all its employees except those assigned
 to Border Patrol Sectors and those excluded from coverage by the Civil
 Service Reform Act.
 
    2.  The aforesaid unit employees have been, since June 13, 1979,
 covered by a collective bargaining agreement entered into on that date
 between U.S. Immigration and Naturalization Service and the Union
 herein.  /6/
 
    3.  Prior to 1978 Respondent had no reassignment program in respect
 to staffing its various locations.  The need for more inspectors at peak
 travel times, such as summer months, was fulfilled by hiring these
 employees as WAE's-- "when actually employed." The latter worked at
 Kennedy Airport or ports of entry.
 
    4.  In 1978 agency representatives discussed with the Union the idea
 of setting up a program to replace the WAE system.  Respondent undertook
 to develop a Summer Internal Reassignment Program (SIRP).  This program
 was considered by management to be an upward mobility plan for all
 employees holding positions with no promotional possibilities.  Under
 SIRP they would gain experience in career fields, and it was not
 addressed solely to Immigration Inspector positions.
 
    5.  Representatives of Respondent, including Judith Dec who was its
 labor relations specialist, met in early April, 1979 with several Union
 /7/ officials, including Paul Erdheim who was the Eastern Regional
 Vice-President for the Union.  Erdheim was informed that the SIRP was
 being drafted by Respondent's EEO Advisor.  Erdheim testified that,
 since WAE's are assigned only to the airport or ports of entry in peak
 periods, it was "assumed" the program would involve only inspection
 positions.  Further, that some discussion ensued re other office
 positions, as Deportation Officers and Criminal Investigators.
 Management mentioned that it would be impossible to put people in those
 positions since they are hazardous duty retirement positions;  that the
 regulars in these jobs have early retirement and a higher deduction on
 their retirement plan.  /8/
 
    6.  On April 30, 1979 Judith Dec /9/ sent a draft of the SIRP to
 Erdheim and requested the Union official to submit his written comments
 by May 13, 1979.  Erdheim responded by letter dated May 16, 1979 in
 which he posed several questions re such items as 'long distance
 reassignments', 'return to original positions upon completion of
 assignment', 'approval of training agreement by the Union', 'repromotion
 rights upon termination of SIRP', and 'effect of evaluations upon an
 employee's future'.  Respondent replied to Erdheim's letter in a letter
 dated May 30, 1979 which addressed the queries or matters raised.  It
 stated therein that the program would be implemented on June 4, 1979 and
 that the Union would be informed of any changes re its implementation.
 
    7.  The SIRP did not address specific positions to which the
 employees would be assigned.  Dec testified the purpose of the plan was
 to provide employees in 'dead' positions (not promotional) an
 opportunity to gain experience in career fields and faster upward
 mobility.  She averred that it was not intended to address persons
 solely going to Immigration Inspector positions;  that the Border Patrol
 Council was present at discussions since Respondent wanted to give
 employees experience in all fields, and the Border Patrol has no
 Immigration Inspectors.  Prior to the SIRP reassignments were made only
 to the position of Immigration Inspectors.
 
    8.  In a letter dated January 28, 1982 /10/ Respondent's Associate
 Regional Commissioner, Michael D. Mosbacher, advised Union official Carl
 Johnson of the agency's intention to extend the availability of SIRP to
 the districts and the sectors.  Further, Respondent planned to rename
 the program the "Internal Reassignment Program" (IRP).  Mosbacher also
 requested that Johnson notify the agency of any comments re the plan.
 
    9.  Johnson replied in a letter dated February 8, in which he asked
 for information re the program.  He inquired, inter alia, re the extent
 of the plans' availability, the grades eligible for reassignment, the
 positions to which reassignments would be made, the length of the
 reassignment, and the method of selection for participation therein.
 
    10.  Mosbacher responded by letter dated March 4 and answered
 Johnson's queries.  Respondent's official stated the information was
 being furnished concerning the Internal Reassignment Program changes.
 He mentioned, inter alia, that while Immigration Inspectors only have
 been utilized in the past, management would effect the plan for
 positions GS-5 and above, depending on district needs;  that the plan
 would be available to all districts region-wide;  that the maximum time
 of reassignment will not exceed one year;  and that the target date for
 implementing the plan is as soon as possible.
 
    11.  Union representative Charles Murphy wrote Mosbacher, in a letter
 dated March 19, that the IRP would impact negatively on some employees
 although benefiting others.  Murphy requested bargaining, on behalf of
 the Union, re the substance, impact and implementation of the IRP.  In
 addition, Murphy made specific proposals re the effective date for
 implementing the plan, the level at which negotiations should be
 conducted, and various proposals re the selection, training and
 assignment, of individuals under the IRP.
 
    12.  In a reply dated April 5, Mosbacher stated that the SIRP, which
 was implemented in 1979, was fully negotiated with the Union;  that the
 only change to the Plan proposed is its availability year round instead
 of just for the summer;  and that the only matters which are bargainable
 relate to year around utilization of the SIRP.  Further, Respondent
 stated that Murphy's comments re the provisions of the present Plan are
 not proper subjects for bargaining.  In respect to the Union's proposals
 re the Plan, Mosbacher declared they were either covered already or were
 non-negotiable matters.
 
    13.  The Union replied in a letter dated April 22 wherein it renewed
 its demand to bargain re the IRP.  It also added two new proposals:  (a)
 that consideration be given to selecting candidates not previously
 selected to fill IRP positions;  (b) volunteers be solicited to work
 with selectees prior to assigning the latter individuals to work.
 Murphy also stated it would not negotiate further via the mails.
 
    14.  In its letter of May 18 Respondent responded to the Union's
 demands re negotiations on its proposals.  With respect to the two new
 items, management asserted they interfered with its reserved rights and
 were non-negotiable.  Respondent also insisted there was no need to meet
 in person since all matters proposed by the Union were not bargainable.
 It also stated that implementation was planned for June 1.  Thereafter,
 on September 23, Mosbacher sent Murphy a copy of the IRP and advised him
 that it has been sent to the District Directors and Border Patrol Agents
 for immediate implementation if they deem appropriate.
 
                                Conclusions
 
    The principal issues for determination herein are as follows:  (1)
 did the IRP, instituted by Respondent in September, 1982, constitute a
 change in past practice re conditions of employment?; (2) assuming
 arguendo, that IRP effected a change re reassignments of employees, was
 Respondent required to bargain with the Union as to their impact and
 implementation?; (3) assuming arguendo Respondent has failed to bargain
 as required, is a status quo ante remedy appropriate herein?
 
    (1) It is asserted by Respondent that the 1982 IRP was the same plan
 as instituted in 1979 and known herein as SIRP.  The employer insists no
 change was effected by the IRP except that the reassignments were no
 longer restricted to summer, but were extended to a maximum of one year.
  As to said change, management maintains it notified the Union thereof
 and fulfilled its obligation in this regard.  In respect to the coverage
 of the IRP for "positions GS-5 and above", Respondent contends no change
 was effected;  that neither SIRP nor IRP limited its applicability to
 any one class of employees, and thus no change was effected by the 1982
 plan.  Thus, it argues, by extending the time period for the
 reassignment plan, and including thereunder the stated classification of
 employees, no violation occurred in re its obligation to bargain under
 the Statute.
 
    The foregoing argument, while seriously considered by the
 undersigned, is rejected.  The change in the Reassignment Plan from a
 summer period to one year is, in my opinion, substantial in nature.
 Since it prolongs the duration of the reassignment program, it
 conceivably affects the status of those in the upward mobility program
 as well as others who might apply therefor.  Certain individuals, who
 might otherwise be available for the training, would not be able to be
 included because of the extended duration.  This change in the Plan from
 a few months to a year could conceivably affect many who would otherwise
 enroll thereunder.  While Respondent claims it satisfied its obligation
 as to this change by notifying the Union thereof, I am constrained to
 conclude otherwise.  It is true that where adequate notice of a change
 is given by management, the labor organization is required to request
 negotiations in order to give rise to an obligation on the part of the
 agency to bargain.  See Internal Revenue Service (IRS) and Brooklyn
 District Office, IRS, 2 FLRA No. 76 (1980).  However, I am satisfied
 that after it received the notification from Respondent herein dated
 March 4, 1982 of the proposed one year reassignment, the Union fulfilled
 its obligation in that regard.  Thus, in its reply letter of March 19,
 1982 the Union stated "This Council demands to bargain regarding the
 substance, impact and implementation of your proposal." /11/ Such
 demand, encompassing the proposed extension of the Reassignment Plan
 from a summer period to one year, is sufficient to oblige the Respondent
 to bargain thereof.  cf. U.S. Department of Air Force, et al., Hanscom
 AFB, Massachusetts, 5 FLRA No. 88 (1981).
 
    In respect to the coverage of the IRP, the undersigned does not agree
 that the utilization of the plan for all GS-5 positions and above
 constitutes no change in past practice on the part of Respondent.
 Although it is true that neither SIRP or IRP bespeaks of particular
 classes of employees who are covered thereunder, the practice for
 several years limited the applicability of the plan to Immigration
 Inspectors.  This is reflected in Mosbacher's letter of March 4, 1982 to
 the Union Vice-President, Charles Murphy.  The management official
 stated therein as follows:
 
          "In the past only Immigration Inspectors have been utilized.
       However, depending on district needs, we would utilize this plan
       for positions GS-5 and above."
 
 Moreover, record facts indicate that no employee except an Immigration
 Inspector was reassigned under SIRP since 1979.
 
    While it may be argued that a contractual agreement (SIRP in this
 instance) should be determinative as to the coverage herein, a past
 practice between the parties may be controlling.  This may follow where
 conditions of employment are not specifically covered in an agreement or
 regardless of the contractual agreement.  In such an instance, the
 parties establish terms and conditions of employment by practice, which
 cannot be altered unilaterally except after good faith bargaining and a
 resultant impasse.  Internal Revenue Service, Brookhaven Service Center,
 6 FLRA No. 127 (1981).
 
    Turning to the case at bar, I am satisfied that the parties herein
 established a practice whereby only Immigration Inspectors were
 encompassed by the SIRP.  Accordingly, a term and condition of
 employment has been established in regard to the reassignment plan which
 limited its coverage to that classification of employees.  Moreover, the
 practice existed for a three year period, which I deem a sufficient
 length of time to ripen into an established term or condition of
 employment.  That it was changed, or intended to be altered, is evident
 from Mosbacher's letter of March 4, 1982 to Murphy, and subsequent
 communications from the Union reveal that the latter desired to bargain
 with respect thereto.
 
    (2) Respondent argues that it has met its responsibility under the
 Statute in respect to its obligation to negotiate with the Union.  It
 maintains that the duty to bargain was limited to the extension of the
 time coverage for the Program;  that it notified the Union thereof and
 satisfied any obligation in this regard;  and that no substantial impact
 existed in any event.  Moreover, it adverts to the written
 communications between the parties as reflective of "meaningful
 negotiations in this matter".
 
    It is clear that, under Section 7106 of the Statute, management has
 been vested with the right to assign work to employees in its
 discretion.  Thus, it cannot be disputed herein that Respondent may
 institute its Reassignment Program to cover the districts' employees.
 Nevertheless, upon the institution of its later Program in 1982, which
 effected changes as to time period and coverage, I conclude that the
 employer was required to fulfill certain obligations imposed by the
 Statute.  Thus, under Section 7106(b)(2) and (3) it was obliged to
 negotiate procedures to be observed by management in re the IRP, as well
 as appropriate arrangements for employees adversely affected thereby.
 /12/
 
    Respondent herein takes the position that no significant impact
 resulted from the institution of the IRP.  I disagree.  The Union may
 well be concerned as to the nature of the duty to which an employee is
 assigned, i.e. hazardous.  Since it was contemplated by management that,
 in addition to Immigration Inspectors, other employees would be subject
 to reassignments, the broadened utilization of IRP could impact upon
 those employees in respect to the nature and safety of their tasks.
 Further, in extending the applicability of the Program to all employees
 at GS-5 level and above, legitimate questions may arise re the selection
 of the applicants.  Thus, the Union was justifiably interested, and
 manifested said interest in its proposal, that employees be selected for
 reassignment who have not been previously considered.  See American
 Federation of Government Employees, AFL-CIO, Local 331, and Veterans
 Administration Hospital, Perry Point, Maryland, Case No. 0-NG-17, 2 FLRA
 No. 59 (1980) involving a proposal by the Union that consideration be
 given to unit employees in filling vacant positions.  This is likewise
 true regarding the Union's proposal that selectees in IRP complete the
 Basic Officer Corps Training appropriate to the branch before entering
 on duty in the program.  In my opinion, the extension or applicability
 of the IRP to a larger number of employees-- which I have concluded was
 embraced within the 1982 Plan as a change in past practice-- involves
 possible impact upon such employees.  They may well be adversely
 affected, and thus Respondent is required to negotiate both as to the
 procedures to be observed in implementing the program as well as
 appropriate arrangements for those adversely affected.  See Department
 of Treasury, Internal Revenue Service, Jacksonville District, 3 FLRA No.
 103 (1980).
 
    In sum, I conclude that the extension of IRP to a one year period, in
 place of limiting it to summer months, constituted a change in past
 practice.  Further, that extending applicability to all GS-5 employees
 and above, rather than confining it to Immigration Inspectors, was
 likewise such a change.  Both of these extensions, in my opinion, were
 significant and impacted upon employees in the district sufficiently to
 warrant bargaining as to procedures and arrangements for employees
 adversely affected.  I reject the contention that, as to the yearly
 period, Respondent had fulfilled its obligation to bargain;  in respect
 to the coverage of IRP, I am satisfied that it constituted a substantial
 change which required the employer to bargain thereon with the Union.
 Having failed to bargain as required regarding both changes in the
 reassignment program, Respondent violated Sections 7116(a)(1) and (5) of
 the Statute.
 
    Having concluded that Respondent by its conduct violated Section
 7116(a)(1) and (5) of the Statute, I recommend the Authority issue the
 following.
 
                                ORDER /13/
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Statute, the
 Authority hereby orders that the Immigration and Naturalization Service,
 Eastern Regional Office (Burlington, Vermont), shall:
 
    1.  Cease and desist from:
 
          (a) Instituting any change in the past practice of limiting
       reassignments to its Immigration Inspectors for the summer period,
       as under the Summer Internal Reassignment Program, and
       implementing an Internal Reassignment Program for all employees
 
 in
 
       GS-5 positions and above, as well as extending the reassignment
       period under such Program to one year, without first notifying the
       National Immigration and Naturalization Council, AFGE, the
       exclusive representative of unit employees, and affording it the
       opportunity to negotiate, to the extent consonant with law and
       regulation, concerning the procedures to be observed in
       implementing its Internal Reassignment Program and the
       arrangements for employees adversely affected thereby.
 
          (b) In any like or related manner inferfering with, restraining
       or coercing its employees in the exercise of rights assured by the
       Federal Service Labor-Management Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Rescind the instructions or directives issued under its
       Internal Reassignment Program which are not limited to Immigration
       Inspectors but cover all employees in GS-5 positions and above,
       and rescind all instructions or directives which extend the
       reassignment period under such Program from the summer to a full
       year.
 
          (b) Notify the National Immigration and Naturalization Council,
       AFGE, the exclusive representative of unit employees, of any
       intention to change its past practice of limiting reassignments to
       its Immigration Inspectors for the summer period, and its
       intentions to implement an Internal Reassignment Program for all
       employees in GS-5 positions and above for the full year, and, upon
       request, negotiate in good faith, to the extent consonant with law
       and regulations, with such representative concerning the
       procedures to be observed in implementing its Internal
       Reassignment Program and the arrangements for employees adversely
       affected thereby.
 
          (c) Post at its facility at Burlington, Vermont, 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 Regional Commissioner, and shall be
       posted and maintained by him for 60 consecutive days thereafter in
       conspicuous places, including all bulletin boards and places where
       notices to employees are customarily posted.  Reasonable steps
       shall be taken by the Regional Commissioner to insure that such
       notices are not altered, defaced, or covered by any other
       material.
 
          (d) Pursuant to Section 2423.20 of the Authority's Rules and
       Regulations, notify the Regional Director, Region I, 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.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  May 3, 1983
    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
 STATUTE We Hereby Notify Our Employees That:
 
    WE WILL not institute any change in the past practice of limiting
 reassignments to our Immigration Inspectors for the summer period, as
 existed under the Summer Internal Reassignment Program, and implementing
 an Internal Reassignment Program for all employees in GS-5 positions and
 above, as well as extending the reassignment period under such Program
 to one year, without first notifying the National Immigration and
 Naturalization Council, AFGE, the exclusive representative of unit
 employees, and affording it the opportunity to negotiate, to the extent
 consonant with law and regulation, concerning the procedures to be
 observed in implementing our Internal Reassignment Program and the
 arrangements for employees adversely affected thereby.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce our employees in the exercise of rights assured by the Federal
 Service Labor-Management Relations Statute.
 
    WE WILL rescind the instructions or directives issued under its
 Internal Reassignment Program which are not limited to Immigration
 Inspectors that cover all employees in GS-5 positions and above, and
 rescind all instructions or directives which extend the reassignment
 period under such Program from the summer to a full year.
 
    WE WILL Notify the National Immigration and Naturalization Council,
 AFGE, the exclusive representative of unit employees, of any intention
 to change our past practice of limiting reassignments to our Immigration
 Inspectors for the summer period, and our intentions to implement an
 Internal Reassignment Program for all employees in GS-5 positions and
 above for the full year, and, upon request, negotiate in good faith, to
 the extent consonant with law and regulations, with such representative
 concerning the procedures to be observed in implementing our Internal
 Reassignment Program and the arrangements for employees adversely
 affected thereby.
                                       (Agency or 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 any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region 1,
 whose address is:  441 Stuart Street, 9th Floor, Boston, Massachusetts,
 and whose telephone number is:  (617) 223-0920.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (5) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter(.)
 
                                  * * * *
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
 
 
    /2/ Section 7106(b)(2) provides:
 
          Sec. 7106.  Management rights
 
                                  * * * *
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
                                  * * * *
 
          (2) procedures which management officials of the agency will
       observe in exercising any authority under this section(.)
 
 
    /3/ Section 7106(a)(2) provides in relevant part:
 
          Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
 
                                  * * * *
 
          (2) in accordance with applicable laws--
 
          (A) to hire, assign, direct, layoff, and retain employees in
       the agency, or to suspend, remove, reduce in grade or pay, or take
       other disciplinary action against such employees;
 
          (B) to assign work, to make determinations with respect to
       contracting out, and to determine the personnel by which agency
       operations shall be conducted;
 
          (C) with respect to filling positions, to make selections for
       appointments from--
 
          (i) among properly ranked and certified candidates fpr
       promotion;  or
 
          (ii) any other appropriate source(.)
 
 
    /4/ Section 7106(b)(1) provides:
 
          Sec. 7106.  Management rights
 
                                  * * * *
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
          (1) at the election of the agency, on the numbers, types, and
       grades of employees or positions assigned to any organizational
       subdivision, work project, or tour of duty, or on the technology,
       methods, and means of performing work(.)
 
 
    /5/ Based on the record, the Respondent selects employees to fill
 positions under the IRP.  Thus, this program does not appear to involve
 the assignment of employees to "training details," although this
 language is used in several of the proposals, and it is unnecessary for
 the Authority to decide whether this proposal conflicts with the right
 to assign employees under section 7106(a)(2)(A) of the Statute.
 
 
    /6/ Under Article 3G of the agreement Respondent recognizes its
 obligation to advise the Union in writing of any changes it desires to
 make re working conditions.  Further, that this obligation exists at the
 National, Regional and District levels.
 
 
    /7/ The Border Patrol Council, which union represents a different
 unit, was also present at this meeting.  No immigration inspector
 positions are covered in its unit.
 
 
    /8/ Respondent's witness Judith Dec testified the discussion was in
 general terms;  that she was pretty sure there was no discussion of the
 positions but it was possible there could have been.  The undersigned
 credits Erdheim's version thereof based on its directness and the
 absence of certainty reflected in Dec's testimony.
 
 
    /9/ Certain exhibits refer to Judith Dec as Judith "Henry".  Since it
 is the same person, and to maintain uniformity, she will be designated
 as Judith Dec.
 
 
    /10/ Unless otherwise indicated all dates hereinafter mentioned occur
 in 1982.
 
 
    /11/ As heretofore indicated, the March 4 notification to the Union
 set forth other details re the IRP and its changes.
 
 
    /12/ Section 7106(b)(2) authorizes negotiating procedures except to
 the extent that such negotiations prevent agency management from acting
 at all.  See American Federation of Government