24:0786(77)CA - INS and AFGE Local 1917 -- 1986 FLRAdec CA



[ v24 p786 ]
24:0786(77)CA
The decision of the Authority follows:


 24 FLRA No. 77
 
 U.S. IMMIGRATION AND
 NATURALIZATION SERVICE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1917, AFL-CIO
 Charging Party
 
                                            Case Nos. 2-CA-1151
                                                      2-CA-20037
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    These consolidated unfair labor practice cases are before the
 Authority on exceptions to the attached Administrative Law Judge's
 Decision filed by the Respondent.  The General Counsel alleged that the
 Respondent had violated section 7116(a)(1) and (5) of the Federal
 Service Labor-Management Relations Statute (the Statute) in both cases,
 and the Judge sustained those charges.
 
                              II.  Background
 
    The parties stipulated that the American Federation of Government
 Employees, AFL-CIO, through its Nationsl Immigration and Naturalization
 Service Council, is the exclusive representative for a nationwide unit
 of U.S. Immigration and Naturalization Service (INS) personnel, and that
 the parties operated under a nationwide collective bargaining agreement
 during the time period in question.  The parties stipulated further that
 the Respondent recognized American Federaltion of Government Employees,
 Local 1917, AFL-CIO (Local 1917), as the agent of the exclusive
 representative and as the bargaining representative of its employees in
 the New York District.  Article 34 of the national agreement expressly
 provided for the negotiation of supplemental local agreements to cover
 matters of local concerns.  The national agreement also provided a
 mechanism for management to initiate interim changes in terms and
 conditions of employment when required.  /1/
 
    Under the provisions of the national agreement, Local 1917 and the
 Respondent's New York District Office executed local agreements
 characterized as memoranda of understanding.  Those memoranda concerned
 the processing of applications for the adjustment of immigrant status,
 training procedures, and other matters.
 
    Several months after the memoranda of understanding were executed,
 the Respondent's Acting Director of the New York District Office
 notified Local 1917 that certain provisions of the memoranda of
 understanding had been rendered moot by the passage of time and by
 altered methods of operation, and that other provisions required changes
 in order to facilitate production.  The Acting District Director
 indicated that the Respondent intended to replace the memoranda of
 understanding with one document, and explained in some detail the
 changes it wished to effectuate.  The notice regarding the proposed
 changes closed with a specific reference to the Respondent's alleged
 right to effectuate modifications "of this agreement" in accordance with
 Article 3, Section G of the national agreement.  /2/ In response, Local
 1917 advised management that it had no right to rescind the three
 memoranda of understanding unilaterally, challenged management's
 characterization of provisions of the memoranda as "moot," and suggested
 that the memoranda should remain in effect or, alternatively, that the
 parties begin negotiations under Article 3, Section G.  The Respondent
 replied with a detailed analysis of the memoranda and its position on
 each provision.  The Respondent contended, essentially, that some
 matters contained in the previously negotiated memoranda were not
 negotiable, that some provisions had been rendered moot by changed
 conditions, and that some of the original provisions were acceptable
 upon reconsideration.  Local 1917, in turn, replied by demanding
 negotiations pursuant to Article 3, Section G of the national agreement.
 
    The parties met to begin negotiations but, when Local 1917 proposed
 ground rules which contained provisions that had the effect of
 precluding the Respondent from effectuating the proposed changes or
 procedures until complete agreement had been reached, the Respondent
 rejected the proposed ground rules and the parties reached impasse.
 Local 1917 invoked the assistance of the Federal Mediation and
 Conciliation Service but, despite the assistance of an assigned
 mediator, the parties remained at impasse.
 
    One week after the abortive bargaining session which resulted in
 impasse over ground rules, the Respondent notified Local 1917 that it
 would implement its proposed procedures to replace the three memoranda
 of understanding in two weeks, and invited bargaining during that
 two-week period.  Local 1917 did not submit any bargaining proposals.
 The Respondent then implemented its plan for changes.  Subsequently,
 Local 1917 formally requested assistance from the Federal Service
 Impasses Panel (FSIP) concerning the impasse over ground rules, but the
 FSIP declined jurisdiction on the ground that there was a threshold
 question concerning management's obligation to bargain over the proposed
 ground rules which had to be resolved before the FSIP would assert
 jurisdiction.  These circumstances led to the Union's charge in Case No.
 2-CA-1151.
 
    The original local memoranda of understanding provided, in part,that
 employees would be required to perform 10 case interviews each day, and
 that unit employees would not be required to perform cashier duties on
 the 10th floor of the RespondentS New York District Office, which had no
 bulletproof booths with silent alarm systems, before any were installed.
  The Respondent's proposed changes, which led to the invocation of
 bargaining entitlement under Article 3, Section G of the national
 agreement, included no mention of either of these provisions.  Later,
 however, the Respondent unilaterally increased the number of daily case
 interviews required from 10 to 15, and began to assign unit employees to
 10th floor cashier duty despite the absence of a silent alarm system,
 with neither prior notice to Local 1917 nor an opportunity for the
 latter to request negotiations concerning procedures and appropriate
 arrangements for adversely affected unit employees.  These circumstances
 led to the Union's charge in Case No. 2-CA-20037.
 
                         III.  Case No. 2-CA-1151
 
               A.  Decision of the Administrative Law Judge
 
    The Judge found that the Respondent had abrogated or repudiated three
 previously negotiated memoranda of understanding in their entirety, and
 substituted one of its own, without bargaining with the exclusive
 representative as required.  On the basis, he found that the Respondent
 had violated section 7116(a)(1) and (5) of the Statute.
 
                       B.  Positions of the Parties
 
    In this case, the Respondent argues that the Judge erred in finding
 that it failed to afford the Union advance notice and an opportunity to
 negotiate with regard to proposed changes in the provisions of memoranda
 of understanding discussed in general terms above.  The Respondent
 argues further that the Judge erroneously found the memoranda of
 understanding to constitute, in effect, a complete collective bargaining
 agreement which could not be changed without violating the national
 agreement, and that he erred in failing to rule on the negotiability of
 the terms of the memoranda and the Union's proposal.
 
    The other parties made no submissions regarding the Judge's decision
 in this case.
 
                               C.  Analysis
 
    We find that the Respondent satisfied any bargaining obligation it
 may have had under the circumstances of this case before implementing
 revised procedures for the New York District Office.  The Respondent
 first gave Local 1917 notice of its intention to revise the three
 memoranda of understanding by replacing them with one document, and then
 provided Local 1917 with a detailed description of the changes it
 proposed to make, together with an explanation of its reasons for such
 changes.  Additionally, the Respondent agreed to meet and negotiate with
 Local 1917, consistent with Article 3, Section G of the national
 agreement, and in fact did so.  /3/ When negotiations began, the Union's
 only proposals would have precluded the Respondent from effectuating any
 change until complete agreement had been reached.  See Division of
 Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA
 307, 320 (1982).
 
    The Respondent then delayed implementation of the revised provisions
 for three weeks.  During that time, it invited Local 1917 to submit
 bargaining proposals, but the Union never did so.  The Respondent also
 participated in efforts by the Federal Mediation and Conciliation
 Service to resolve the parties' impasse over Local 1917's ground rules
 demands.  Finally, consistent with its two weeks' advance notice to
 Local 1917, and in the absence of either proposals from or invocation of
 FSIP'S processes by Local 1917 during that period, the Respondent
 implemented its revised procedures.
 
    Assuming without deciding that the Respondent had a duty to bargain
 with Local 1917, the authorized and recognized agent of the exclusive
 representative at the national level concerning the negotiation of local
 supplemental agreements covering employees in the New York District
 Office, the Authority concludes that, under the circumstances, the
 Respondent satisfied any such bargaining obligation before implementing
 the revised procedures for its New York District Office.  Accordingly,
 the Authority cannot find that the Respondent violated section
 7116(a)(1) and (5) of the Statute, as alleged by the General Counsel.
 See, for example, Department of Defense, Department of the Navy, Naval
 Ordance Station, Louisville, Kentucky, 17 FLRA 896 (1986), and the cases
 it cites.  The complaint in Case No. 2-CA-1151 must therefore be
 dismissed.  /4/
 
                         IV.  Case No. 2-CA-20037
 
               A.  Decision of the Administrative Law Judge
 
    In Case No. 2-CA-20037, the Judge found that the Respondent assigned
 unit employees to cashier duties in an area of its New York District
 Office unsecured by bullet proof booths with silent alarm systems, and
 increased the number of required interviews to be performed by unit
 employees each day from 10 to 15.  In both instances the Respondent
 acted without affording the exclusive representative notice and an
 opportunity to bargain concerning procedures and appropraite
 arrangements for unit employees adversely affected by these unilateral
 changes to their memoranda of understanding.  On that basis, he found
 that the Respondent had violated section 7116(a)(1) and (5) of the
 Statute in this case, too.
 
                       B.  Positions of the Parties
 
    In this case, the Respondent argues that the Judge erred in finding
 that the Respondent failed to afford the Union notice of its proposed
 action to terminate certain specific provisions of the memoranda
 involving rights not reserved to management by section 7106(a) of the
 Statute.  It also argues, in the alternative, that the Judge erred in
 finding that the three memoranda constituted a complete collective
 bargaining agreement which could not be changed.
 
    The other parties made no submissions regarding the Judge's decision
 in this case either.
 
                               C.  Analysis
 
    The General Counsel's charge in this case relates to the Respondent's
 alleged failure to give 'local 1917 notice and an opportunity to bargain
 concerning the impact and implementation of its unilateral decisions to
 change the number of required daily interviews from 10 to 15 and to
 require cashier duty on the 10th floor despite the absence of
 bulletproof booths with silent alarm systems.  The Authority agrees with
 the Judge's conclusion that the Respondent's unilateral changes were
 violative of the Statute.
 
    The Authority has recently reassessed and modified the standard
 previously used to identify changes in conditions of employment which
 require bargaining.  In Department of Health and Human Services, Social
 Security Administration, 24 FLRA No. 42 (1986), we said:
 
          In order to determine whether a change in conditions of
       employment requires bargaining . . ., the pertinent facts and
       circumstances presented in each case will be carefully examined.
       In examining the record, we will place principal emphasis on such
       general areas of consideration as the nature and extent of the
       effect or reasonably foreseeable effect of the change on
       conditions of employment of bargaining unit employees. Equitable
       considerations will also be taken into account in balancing the
       various interest involved.
 
          As to the number of employees involved, this factor will not be
       a controlling consideration.  It will be applied primarily to
       expand rather than limit the number of situations where bargaining
       will be required.  For example, we may find that a change does not
       require bargaining.  However, a similar change involving hundreds
       of employees could, in appropriate circumstances, give rise to a
       bargaining obligation.  The parties' bargaining history will be
       subject to similar limited application.  As to the size of the
       bargaining unit, this factor will no longer be applied.
 
    Applying the revised standard to this case, we find based on the
 facts and circumstances that the nature and extent of the changes gave
 rise to a duty to bargain.  The Respondent unilaterally increased the
 performance standard of bargaining unit employees by fifty percent and
 assigned other unit employees to an unsecured work site, thereby
 abrogating the terms of the preexisting local agreements.  The duration
 of these unilateral changes was permanent, and the impact on the
 affected unit employees was immediate and significant.  In addition, as
 noted by the Judge, the employees assigned to the unsecured work site
 had legitimate concerns for their safety in view of the fact that they
 handled large sums of money as cashiers and several employees of the
 Respondent had been robbed in the building where the unsecured work site
 was located.  Therefore, we find that the Respondent violated section
 7116(a)(1) and (5) of the Statute, as alleged by the General Counsel and
 found by the Judge in Case No. 2-CA-20037.  /5/
 
                              V.  Conclusion
 
    Based on the considerations and analysis set forth above, the
 Authority concludes that the record in Case No. 2-CA-1151 does not
 establish that the Respondent violated section 7116(a)(1) and (5), as
 alleged in the complaint.  The Authority concludes further, however, in
 agreement with the Judge, that the record in Case No. 2-CA-20037 does
 establish that the Respondent violated section 7116(a)(1) and (5) of the
 Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority orders the U.S.
 Immigration and Naturalization Service to do as follows:
 
    1.  Cease and desist from:
 
    (a) Unilaterally implementing changes in the working conditions of
 unit employees without first notifying the American Federation of
 Government Employees, Local 1917, AFL-CIO, the designated agent of the
 employees' exclusive representative, and affording it the opportunity to
 negotiate concerning the changes themselves and/or the procedures and
 appropriate arrangements for employees adversely affected by such
 changes, as required by the Statute.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its 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) Upon request of the American Federation of Government Employees,
 Local 1917, AFL-CIO, the designated agent of the employees' exclusive
 representative, negotiate concerning procedures and appropriate
 arrangements for employees who have been or may be adversely affected by
 the unilateral changes in their performance standards and/or work
 locations.
 
    (b) Post at its New York District Office 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
 Respondent's New York District Director, 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 ensure that
 such Notices are not altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply.
 
    IT IS FURTHER ORDERED that the allegations of the complaint in Case
 No. 2-CA-1151 are dismissed.
 
    Issued, Washington, D.C., December 23, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, 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 unilaterally implement changes in the working conditions
 of unit employees without first notifying the American Federation of
 Government Employees.  Local 1917, AFL-CIO, the designated agent of the
 employees' exclusive representative, and affording it the opportunity to
 negotiate concerning the changes themselves and/or the procedures and
 appropriate arrangements for employees adversely affected by such
 changes, as required by law.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights under the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request of the American Federation of Government
 Employees, Local 1917, AFL-CIO, the designated agent of the employees'
 exclusive representative, negotiate concerning procedures and
 appropriate arrangements for employees who have been or may be adversely
 affected by the unilateral changes in their performance standards and/or
 work locations.
                                       . . . . . (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 II, Federal Labor Relations Authority, whose address
 is:  26 Federal Plaza, Room 3700, New York 10278 and whose telephone
 number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case nos.: 2-CA-1151
               2-CA-20037
 
    U.S. IMMIGRATION AND NATURALIZATION
    SERVICE
         Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, LOCAL 1917, AFL-CIO
         Charging Party
 
    Lee Mingledorff, Esq.
    For the General Counsel
 
    Sheldon Dorn
    For the Charging Party
 
    Carol D. Chasse and
    William D. Tedrick, Esq.
    For the Respondent
 
    Before:  ELI NASH, JR.
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute (hereinafter referred to as the Statute), Chapter 71
 of the Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq.
 
    The original charge in Case No. 2-CA-1151 was filed by the American
 Federation of Government Employees, Local 1917, AFL-CIO (hereinafter
 referred to as the Union or the Charging Party) against the U.S.
 Immigration and Naturalization Service (hereinafter referred to as
 Respondent or Management) on August 6, 1981 and amended on October 23,
 1981.  The original charge in Case No. 2-CA-20037 was filed by the Union
 against Respondent on October 15, 1981.  On November 24, 1981 the
 Regional Director, Federal Labor Relations Authority, issued an Order
 Consolidating Cases, Complaint and Notice of Hearing with respect to
 Case Nos. 2-CA-1119 and 2-CA-1151.  On December 2, 1981 the Regional
 Director, Region II issued an order amending said Complaint.  On
 December 18, 1981 Respondent filed its Answer denying the commission of
 an unfair labor practice.  On January 19, 1982 Respondent filed an
 addendum to its Answer denying the commission of a section 7116)a)(5)
 violation.  On January 12, 1982, the Regional Director issued an Order
 Severing Case No. 2-CA-1151 based upon the parties agreement to pursue a
 stipulated record in the matter.  On July 28, 1982, the Regional
 Director issued a Complaint and Notice of Hearing in Case No.
 2-CA-20037.  On August 20, 1982, Respondent filed its Answer to the July
 28, 1982 Complaint, denying the commission of an unfair labor practice.
 On Cotber 6, 1982, the Acting Regional Director issued an Order
 Consolidating Cases with respect to Case Nos. 2-CA-1151 and 2-CA-20037.
 On March 17, 1983 the Regional Director issued an Order Scheduling Cases
 for Hearing.
 
    The Complaints in this matter allege that Respondent unilaterally
 changed "Walk-In One Step" procedures by assigning unit employees to
 work as cashiers on the tenth floor and increased the number of case
 interviews which unit employees would be required to complete each work
 day without affording the Union the opportunity to negotiate concerning
 the impact and implementation of the changes;  and, that Respondent and
 the Union negotiated and became parties to three (3) written agreements
 concerning, inter alia procedures for processing certain applications in
 the Travel Control Branch, which procedures are negotiable as to
 consistence and negotiable within the meaning of section 7106(b)(1) and
 (2) of the Statute;  that Respondent unilaterally implemented changes in
 procedures which were inconsistent with the negotiated procedures;  and
 that the changes were implemented without good faith negotiations
 concerning the desire to alter the terms of the agreements.
 
    A hearing was conducted on May 19, 1983 in New York, New York, at
 which time all parties were represented and afforded full opportunity to
 adduce evidence, call, examine, and cross-examine witnesses, and argue
 orally.  Briefs were filed by Respondent and Counsel for the General
 Counsel.
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following findings of fact, conclusions of law, and
 recommendation:
 
                             Findings of Fact
 
    The basic facts in this matter were stipulated by the parties.  In
 addition to that stipulation certain findings of fact not contained in
 that stipulation were deemed necessary by the undersigned.  Those
 findings are included herein.
 
    1(a).  At all time material herein, the American Federation of
 Government Employees, AFL-CIO, through the National Immigration and
 Naturalization Service Council has been and is now the exclusive
 bargaining representative for a nationwide unit of all personnel of the
 Immigration and Naturalization Service excluding from coverage by the
 Civil Service Reform Act.
 
    1(b).  At all times material herein, Respondent has recognized the
 Charging Party as the agent of the exclusive representative and as
 bargaining representative for its employees in the New York District,
 Immigration and Naturalization Service.
 
    2.  At all times material herein, the parties have been operating
 under a nationwide collective bargaining agreement, executed on June 13,
 1979 and extending for a three (3) year period.  The provisions of the
 agreement have been continued in effect by the parties pending
 negotiations for a new agreement.
 
    3.  The Travel Control Branch of the New York District, Immigration
 and Naturalization Service was comprised, at all times material herein,
 of four (4) major examination units:  The I-130 unit;  the I-140 unit;
 the 245 unit;  and the Non-Immigrant unit.  The I-130 unit processed
 petitions involving relatives in the US;  the I-140 unit processed
 petitions involving work in the US;  the 245 unit processed combined
 applications involving both I-130 and I-140 petitions plus an I-485
 adjustment of immigrant status petition;  and the Non-Immigrant unit
 processed petitions for short-term stays which did not require an
 adjustment of status.
 
    4.  The 245 unit combined application procedure, referred to above
 involved either pre-scheduled, calendared interviews or "one-step"
 applicants who were walk-ins without pre-scheduled interviews.  This
 "one-step" procedure was initially implemented on or about December 1,
 1980.  Prior to that time, only pre-scheduled interviews were handled by
 the 245 unit.
 
    On or about May 10, 1980, Charging Party and Respondent negotiated
 and entered an agreement entitled "Memorandum Of Understanding" which
 concerned various procedures to be used in the Travel Control Branch.
 These included inter alia, certain 245 unit procedures, /6/ provisions
 for temporary rotation of other employees into the 245 unit, /7/ and
 cross training of employees in work done by other units.  /8/
 
    6.  In or about September, 1980, the parties negotiated and entered
 into an agreement entitled "Training Agreement Travel Control Branch New
 York District" which covered various aspects of employee training
 including the cross training noted above.
 
    7.  On or about November 5, 1980, Henry Dogin, then New York District
 Director, issued a memorandum concerning implementation of the new
 "one-step" procedure referred to above.  On or about November 24, 1980,
 the parties negotiated and entered an agreement entitled "Negotiated
 Agreement on 'One-Step' Examination in New York District." This
 agreement pertained to the 245 unit and the new combined "one-step"
 application procedure being implemented there.
 
    8.  By letter dated June 9, 1981, Respondent's Acting Director, New
 York District, John J. Gaffrey, notified the Union that it felt certain
 provisions of the three (3) previously negotiated agreements, which
 included:  the May 10, 1980 memorandum of understanding;  the one step
 procedure and training were moot and other provisions needed change in
 order to facilitate production in Travel Control.  Respondent stated its
 intent to replace the three (3) agreements and to rescind the Dogin's
 letter of November 15, 1980 and replace these memoranda with one
 document.  Respondent enclosed its proposals for consideration.  They
 were, in pertinent part,as follows:
 
          "2.  All officers assigned to the Travel Control Section of the
       New York District Office will be expected to participate in the
       processing of combined applications on an as needed basis.
 
          "3.  Cases will be calendared and/or interviews conducted on
       the basis of a four day week (Monday through Thursday).  Friday
       will be a non-interview and/or calendar day enabling officers to
       work on back logs and pending cases.
 
          "4.  Every effort will be made to insure that Travel Control
       officers who have no experience in adjudicating combined
       applications be trained in the proper procedures relative to
       combined processing.
 
          "5.  New duties assigned to applications clerks as a
       consequence of one-step should be listed by Travel Control
       supervisors and forwarded to the Regional Office for review by
       classifications.
 
          "6.  Premature status report requests (prior to published
       processing periods) from outside the federal government need only
       be filed.
 
          "7.  A one-step, walk-in applicant will be directed from the
       Information Unit on the first floor to Room 10-104 of the Ravel
       Control.  An application clerk will review the application, for
       completeness.  If not complete, the applicant will be informed of
       deficiencies and told to return with all documentation.  If
       complete, the application will be receipted and placed in
       chronological order.
 
          "8.  An immediate search of MIRAC will be made to ascertain the
       existence of an "A" file.  If none exists, a file will be created
       through a block of "A" numbers issued to Travel Control by RAIS.
       If a file exists, a check will be made of the file shelf for file
       locations.  If the file is in the file room, it will immediately
       be charged to Travel Control.  If in an operating unit, a search
       for the file will commence immediately by the designated
       "One-Step" file clerk.  If the file is in another Service office,
       a request for the file transfer will be made via MIRAC.  The
       interview will proceed through the creation of a work folder.  If
       the file is in the Federal Records Center, the interview will
       proceed through the creation of a work folder.  In all cases where
       the file is not readily available (FRC, other Service office, etc)
       a MIRAC print out with pertinent biographical data will be
       included in the work folder.
 
          "9.  Applicants will be referred to the third floor for
       acceptance of fees until a secure area for acceptance of fees is
       provided on the tenth floor.
 
          "10.  It is understood by the parties that the provisions of
       this agreement may be modified by Management in accordance witt
       (sic) Article 3, Section G /9/ of the National Agreement."
 
    9.  By correspondence dated June 17, 1981, the Union responded as
 follows:
 
          "IF YOU WISH TO MEET INFORMALLY TO INFORM US OF YOUR
 REASONS
       FOR REQUESTING THESE CHANGES BE ADVISED THAT I WILL
 ACCOMMODATE
       ANY GOOD FAITH ATTEMPT AT RESOLVING OUR DIFFERENCES.
 
          "IN THE MEANTIME BE ADVISED THAT YOU DO NOT HAVE THE
 AUTHORITY
       TO UNILATERALLY RESCIND ANY MEMORANDUM OF UNDERSTANDING
 REACHED
       WITH THIS LOCAL AND UNTIL SUCH TIME AS THESE MEMORANDA ARE
 CHANGED
       THROUGH GOOD FAITH NEGOTIATIONS, THEY WILL REMAIN IN EFFECT.
 
          "IT IS NOTED THAT YOU REFER TO MANY OF THE PROVISIONS
 CONTAINED
       IN THE REFERENCED THREE MEMORANDA OF UNDERSTANDING as
 "MOOT".  MY
       DEFINITION of "MOOT" IS A SITUATION THAT IS NO LONGER APPLICABLE
       AND I HAVE SEARCHED THE THREE DOCUMENTS IN VAIN FOR
 PROVISIONS
       THAT ARE "MOOT." IT WOULD BE HELPFUL IF YOU COULD SPECIFY THE
       PROVISIONS YOU ARE REFERRING TO SO THAT YOUR CLAIM COULD BE
       EXAMINED.
 
          "IN REVIEWING THE THREE DOCUMENT I FIND THAT THEY ARE AS
 WELL
       SUITED TO THE NEEDS OF OUR EMPLOYEES IN TRAVEL CONTROL AS
 THEY
       WERE ON THE DAY THEY WERE ADOPTED.  THERE IS NO INDICATION IN
 YOUR
       LETTER OF ANY CHANGE THAT WOULD NECESSITATE REVIEW OF
 THESE
       MEMORANDA BUT I AM NONETHELESS PREPARED TO LISTEN TO YOUR
 REASONS
       FOR REMOVING ITEMS AND CHANGING OTHERS.
 
          "IN THE ABSENCE FN ANY JUSTIFICATION FOR THE DRASTIC
 CHANGES
       YOU SUGGEST I PROPOSE THAT THE THREE MEMORANDA OF
 UNDERSTANDING
       REMAIN IN FORCE AS THEY MORE ADEQUATELY ADDRESS THE NEEDS
 OF
       EMPLOYEES IN TRAVEL CONTROL THAN DOES YOUR NEW PROPOSAL.
 
          "IF THIS IS UNACCEPTABLE TO YOU I SUGGEST THAT WE COMMENCE
       NEGOTIATIONS WITHIN FIVE DAYS AS PER ARTICLE 3(G). . ."
 
    10.  In a subsequent, undated correspondence, Respondent specifically
 stated its position with respect to each item contained in the three (3)
 prior agreements.  It denoted which items Respondent agreed to retain,
 which it felt were not moot, and which it felt were non-negotiable as
 either managements rights under Section 7106(a) of the Statute or
 permissive subjects of bargaining under Section 7106(b)(1) of the
 Statute.  The correspondence included new management proposals to
 replace the provisions contained in the prior agreements.  It reads as
 follows:
 
          "Item One (1) from the Memorandum of Understanding transmitted
       by Nathan Cohen on May 10, 1980, remains unchanged and was item
       one (1) on the proposals of June 9, 1981.
 
          "Item Two (2) from the Memorandum of Understanding transmitted
       by Nathan Cohen on May 10, 1980, is moot.  Under the one-step
       program, Travel Control Officers are presented with an application
       before the file is necessarily completed and organized.  Agreement
       on this item would make it virtually impossible to refer an
       applicant for interview in Travel Control when an "A" file on the
       alien is not readily available.  Therefore, this interferes with
       Management's ability to assign work and is non-negotiable pursuant
       to 5 USC 7106(a)-(2)-(B).  Finally this item conflicts with item
       two (2) of District Director Dolgin's memorandum of November 5,
       1980, agreed to by you in item one (1) of the November 24, 1980,
       Memorandum of Understanding, and which is now item eight (8) of
       the proposals submitted on June 9, 1981.
 
          "Item three (3) of the May 10, 1980, Memorandum of
       Understanding was incorporated into the June 9th proposals as item
       six (6).
 
          "Item four (4) of the May 10, 1980, Memorandum of Understanding
       has been deleted altogether and, in my view is moot.  This item
       was agreed to when cases were being calendared on the basis of
       1000/month.  Cases are no longer being calendared at this rate and
       by fall, it is anticipated that the calendar will be done away
       with altogether.  In the meantime, Travel Control officers will be
       expected to process walk-in applicants under the one-step program.
        As such, the Service will not know from one day to the next how
       many applicants will appear for interviews and cannot schedule
       interviews in advance.  In any event, this item interferes with
       Management's right to assign work.
 
          "Item five (5) of the May 10, 1980 Memorandum of Understanding
       is essentially the same as 'item three (3) of the June 9, 1981
       proposals.  In the fall, all reference to calendars will be
       deleted as moot.
 
          "Item six (6), the first sentence of the May 10, 1980
       Memorandum of Understanding has proven to limit Management in
       assigning sufficient Travel Control personnel to do the work of
       that unit.  This item, therefore, is non-negotiable pursuant to 5
       USC 7106(a)(1), 2(A) and 5 USC 7106(b)(1).  In order that
       Management's rights not be restricted is this regard, item two (2)
       of the June 9, 1981 proposals is intended to replace this item to
       gain the desired flexibility for Management.  I have reconsidered
       my position with respect to the second and third sentences of item
       six (6) of the May 10, 1980 Memorandum of Understanding and agree
       with your position that they are still applicable.  Therefore,
       item two (2) of the proposals of June 9, 1981, is amended as
       follows:
 
          "'All officers assigned to the Travel Control Section of the
       New York District office will be expected to participate in the
       processing of combined applications.  To the extent possible,
       designation of officers will be made on the effected morning and
       the chosen officer(s) assigned for the duration of the day.
       Consistent with the needs of the Service, rotation of officers to
       adjudicate combined applications will be equitable.'
 
          "I have reconsidered my position with respect to item seven (7)
       of the May 10, 1980 Memorandum of Understanding and agree with you
       that it still has application to the New York District Travel
       Control Section.  Therefore, item seven (7) of the May 10
       Memorandum of Understanding will be incorporated into my June 9,
       1981 proposals.
 
          "I have also reconsidered my position with respect to item
       eight (8) of the May 10, 1980 Memorandum of Understanding and
       agree with (sic) you that it still has application.  Therefore, it
       will be incorporated into the June 9, 1981, proposals.
 
          "The first and second sentences of item nine (9) of the May 10,
       1981 (sic) Memorandum of Understanding have been accomplished and
       are, therefore, moot.  The specific training proposals which were
       agreed to by the parties will be addressed later in this letter.
       The third sentence of item nine (9) restricts Management's ability
       to assign work and personnel and limits Management's ability to
       determine the number of employees assigned to a particular unit.
       Therefore, this sentence is non-negotiable pursuant to 5 USC
       (a)(2)(A) and (B) as well as 5 USC 7106(b)(1).  In addition, I
       have reconsidered my position with respect to the last sentence of
       item nine (9) and agree with you that it still has application.  I
       will, therefore, incorporate it into the June 9, 1981 proposals.
 
          "Item ten (10) of the May 10, 1980, Memorandum of Understanding
       limits Management's ability to determine which personnel will do
       which types of work. . . .
 
          "With respect to the last two (2) paragraphs of the May 10,
       1980 Memorandum of Understanding, the agency's position with
       respect to unit structure was sustained by the Federal Labor
       Relations Authority, and, the last paragraph was included in the
       June 9, 1981 proposals as item ten (10).
 
          "Item one (1) and two (2) of District Director Dogin's
       memorandum of November 5, 1980, were incorporated into the June 9,
       1981 proposals as items seven (7) and eight (8).
 
          "Item three (3) of Dogin's memorandum of November 5, 1980 was
       incorporated as item nine (9) of the June 9, 1981 proposals with
       the exception of the date because, to date, the required secure
       area has not yet been provided on the tenth floor.
 
          "Item four (4) of District Director Dogin's memorandum of
       November 5, 1980, has been accomplished and is, therefore, moot.
 
          "Item five (5) of District Director Dogin's memorandum of
       November 5, 1980, is essentially the same as item four (4) of the
       May 10, 1980 Memorandum of Understanding and would interfere with
       Management's ability to assign work and direct personnel.  This
       item is, therefore, non-negotiable pursuant to 5 USC 7106(a)(2)
       (S) and (B).
 
          "Item six (6) of Mr. Dogin's November 5, 1980 memorandum limits
       Management's discretion with respect to directing employees,
       assigning work, and determining the number of employees assigned
       to a work unit.  This item is, therefore, non-negotiable pursuant
       to 5 USC 7106(a)(2)(A) and (B) as well as 5 USC 7106(b)(1).
 
          "Item seven (7) of Mr. Dogin's November 5, 1980 memorandum was
       incorporated into the June 9, 1981 proposals as item three (3).
 
          "Item one (1)(a) of the one-step agreement carrying a typed
       date of November 24, 1980, was included as item nine (9) of the
       June 9, 1981 proposals.  Where a secure area will be provided,
       whether it be composed of bullet-proof glass and include a silent
       alarm to the Federal Protective Service, is concerned with the
       budget of the Agency and its internal security practices.  Such
       determinations are to be made by Management and are, therefore,
       non-negotiable pursuant to 5 USC 7106(a)(1).
 
          "Item one (1)(b) of the November 24, 1980 agreement was
       incorporated into the June 9, 1981 proposals as items five (5)
       slightly changed.  First-line supervisors must certify in writing
       to the Regional Personnel Office, any new duties to be included in
       position descriptions.  The District Director cannot initiate a
       request for inclusion of the new duties in position descriptions
       without the written certification by first-line supervision.  In
       addition, once the supervisory certification has been initiated,
       they will be forwarded through channels to the Regional
       Classification Section.
 
          "Item one (1)(c) of the November 24, 1980 agreement conflicts
       with . . . the national agreement.
 
          "Item one (1)(d) of the November 24, 1980 agreement, restricts
       Management's ability to assign work and to direct personnel.  This
       item is, therefore, non-negotiable pursuant to 5 USC 7106(a)(2)(A)
       and (B).
 
          "Item one (1)(3) has been accomplished and is, therefore, moot.
 
          "I have reconsidered my position with respect to item one
       (1)(f) and item one (1)(g) of the November 24, 1980 agreement and
       with additional clarification, agree that they still have
       application.  Therefore, the following will be incorporated into
       the June 9, 1981 proposals.
 
          "'In the event fraud is suspected, an Immigration Examiner may,
       with the approval of Travel Control Supervisor, limit combined
       processing applications to an immediate 245 interview and,
       consistent with II Handbook guidelines and related criteria, refer
       the I-130 or I-140 portion of the application with the file to the
       I-130 or I-140 Unit for further processing and the scheduling of
       an interview for determination of fraud.
 
          "'Consistent with the availability of Investigators, and
       Immigration Examiner may, with the approval of a Travel Control
       Supervisor, transfer a file to Investigations for a marriage fraud
       or employment fraud investigation.  The 245 portion of the
       interview is to be completed but no formal I-130 or I-140
       interview need be conducted.  Such referrals shall be consistent
       with II Handbook guidelines and related criteria.'
 
          "With respect to item one (1)(h), each provision of the
       training agreement will be addressed separately later in this
       letter.  However, the statement that 'a 10-hour course in 245
       examinations shall suffice to permit assignment of non-245
       Examiners on a standby basis for "one-step" examinations'
       restricts Management's ability to assign personnel and work and
       is, therefore, non-negotiable pursuant to 5 USC 7106 (2)(A) and
       (B).
 
          "Item one (1)(i) of the November 24, 1980 agreement has been
       incorporated into the June 9, 1981 at item two (2).
 
          "Item one (1)(j) is moot.  However, I agree that the following
       language would still apply:
 
          "'This Memorandum of Understanding is not intended to abolish,
       solely because of exclusion here from, any practices which have
       been mutually acceptable in the New York District Travel Control
       Section.'
 
          "Item one (1)(k) of the November 24, 1980 agreement interferes
       with Management's right to determine the internal security
       practices of the agency as well as Management's ability to assign
       personnel to do certain types of work and is therefore,
       non-negotiable pursuant to 5 USC 7106(a)(1) and 5 USC
       7106(a)(2)(A) and (B). . . .
 
          "Proposal one (1) of the Training Agreement conflicts
       Management's position (which has been upheld by the Federal Labor
       Relations Authority) with respect to unit structure.  All
       Immigration Examiner is not assigned to a unit, but rather
       Management assigns a certain type of work from within the position
       description, to the Immigration Examiner.  The duties within the
       position description may be called I-140, I-130 or 245 work, but
       the employee is an Immigration Examiner, not an I-140 Examiner or
       an I-130 Examiner.  This proposal is, therefore, non-negotiable
       pursuant to 5 USC 7106(a)(1) & (2)(A) &(B).
 
          "Proposal two (2) of the training agreement is non-negotiable
       for the same reasons as stated above.  It restricts Management's
       ability to determine the organization of the agency, and
       interferes with Management's ability to assign work and personnel.
 
          "The first sentence of proposal three (3) and the first
       sentence of proposal four (4) of the training agreement will be
       incorporated into the June 9, 1981 proposals by adding the
       following to item four (4):
 
          "'Cross training will be an ongoing effort.  Training will be
       equitably distributed and based on need.'
 
          "The remaining sentences of proposals three (3) and four (4) of
       the training agreement are non-negotiable as they restrict
       Management's ability to determine what training will be given and
       to whom (assignment of work and personnel), as well as the type of
       work an employee is assigned while in a "training program".
       Proposal five (5) purports to establish training positions and is
       determinative of the type of work the training positions will be
       assigned.  Therefore, these matters are all non-negotiable
       pursuant to 5 USC 7106(a)(2)(A) & (B) and 5 USC 7106(b)(1).
 
          "Proposal number six (6) interferes with Management's right to
       assign work and personnel and is non-negotiable pursuant to 5 USC
       7106(a)(2)(A) & (B).
 
          "I have reconsidered my position with respect to proposals
       seven (7), proposal ten (10) (which follows proposal seven (7),
       proposal nine (9) and proposal ten (10), and will incorporate them
       into the June 9, 1981, proposals as follows:
 
          "'To the extent possible, Immigration Examiners will be
       furnished a complete and current set of the laws, regulations and
       O. I.'s, as well as all transmittal memoranda changing the laws,
       regulations, O. I's and the Handbook.
 
          "'To the extent possible, every unit will maintain a current
       and complete set of BIA decisions, and will maintain subject
       folders containing BIA decisions, and will maintain subject
       folders containing BIA decisions and unit decisions on that
       subject.
 
          "'The New York District Office will encourage training. . . .
       If an employee wishes to enroll in an outside training program,
       Management will consider a request for a change in shift, if
       necessary, and if consistent with the needs of the unit.  To the
       extent possible, the New York District will afford Immigration
       Examiners the opportunity to attend the Journeyman Examiner
       Course.'
 
          "1.  The Service and the Union agree that the terms of this
       agreement and the changes in procedure addressed herein are not to
       be construed as encouraging adjudicating officers to approve
       questionsable cases or to short cut fraud investigations.  The
       Service and the Union agree that it is essential to maintain the
       quality of adjudications and will preserve the current level of
       discretion vested in Immigration Examiners.
 
          "2.  All officers assigned to the Travel Control Section of the
       New York District Office will be expected to participate in the
       processing of combined applications on an as needed basis.  To the
       extent possible, designation of officers will be made on the
       effected morning and the chosen officer(s) assigned for the
       duration of the day.  Consistent with the needs of the Service,
       rotation of officers to adjudicate combined applications will be
       equitable.
 
          "3.  Except in unforeseen circumstances, the Service and the
       Union agree that no officer not belonging to or specifically
       assigned that day to Section 245 will be removed from him normal
       range of duties to perform Section 245 work.
 
          "4.  The Service and the Union agree that an officer
       adjudicating Section 245 cases may in his discretion swear in an
       applicant and have him attest to the validity of his statements,
       instead of reviewing each and every item on the I-485 application.
 
          "5.  In the event fraud is suspected, Immigration Examiners
       may, with the approval of Travel Control Supervisor, limit
       combined processing applications to an immediate 245 interview and
       consistent with Ii Handbook guidelines and related criteria, refer
       the I-130 or 140 portion of the application with the file to the
       I-130 or I-140 Unit for further processing and the scheduling of
       an interview for determination of fraud.
 
          "6.  Consistent with the availability of Investigators, an
       Immigration Examiner may, with the approval of a Travel Control
       Supervisor, transfer a file to Investigations for a marriage fraud
       or employment fraud investigation.  The 245 portion of the
       interview is to be completed but no formal I-130 or I-140
       interview need be conducted.  Such referrals shall be consistent
       with Ii Handbook guidelines and related criteria.
 
          "7.  Cases will be calendared and/or interviews conducted on
       the basis of a four day week (Monday through Thursday).  Friday
       will be a non-interview day enabling officers to work on back logs
       and pending cases.
 
          "8.  Premature status report requests (prior to published
       processing periods) from outside the federal government need only
       be filed.
 
          "9.  Every effort will be made to insure the Travel Control
       officers who have no experience in adjudicating combined
       applications be trained in the proper procedures relative to
       combined processing.  Where cross-training will be an on-going
       effort, it is understood that Immigration Examiners will
       experience in certain travel control duties shall considered
       cross-trained in these types of duties.  Training will be
       equitably distributed and based on need.
 
          "10.  To the extent possible Immigration Examiners will be
       furnished a complete and current set of the laws, regulations and
       O.I.'s as well as all transmittal memoranda changing the laws,
       regulations, O.I.'s and the Handbook.
 
          "11.  To the extent possible every unit will maintain a current
       and complete set of BIA decisions, and will maintain subject
       folders containing BIA decisions and court decisions on that
       subject.
 
          "12.  The New York District Office will encourage training by
       exercising diligence informing employees to the extent possible of
       all available training programs, training material including
       language tapes), and tuition assistance programs.  If an employee
       wishes to enroll in an outside training program, management will
       consider a request for a change in shift, if necessary, and if
       consistent with the needs of the unit.
 
          "13.  To the extent possible, the New York District will afford
       Immigration Examiners the opportunity to attend the Journeyman
       Examiner Course.
 
          "14.  New duties assigned to applications clerks as a
       consequence of one-step should be listed by Travel Control
       supervisors and forwarded to the Regional Office for review by
       classification.
 
          "15.  A one-step, walk-in applicant will be directed from the
       Information Unit on the first floor to Room 10-104 of Travel
       Control.  An application clerk will review the application for
       completeness.  If not complete, the applicant will be informed of
       deficiencies and told to return with all documentation.  If
       complete, the application will be receipted and placed in
       chronological order.
 
          "16.  An immediate search of MIRAC will be made to ascertain
       the existence of an 'A' file.  If none exists, a file will be
       created through a block of 'A' numbers issued to Travel Control by
       RAIS.  If a file exists, a check will be made of the file shelf
       for file location.  If the file is in the file room, it will
       immediately be charged to Travel Control.  If in an operating
       unit, a search for the file will commence immediately by the
       designated 'One-step' file clerk.  If the file is in another
       Service office, a request for the file transfer will be made via
       MIRAC.  The interview will proceed through the creation of a work
       folder.  If the file is in the Federal Records center, the
       interview will proceed through the creation of a work folder.  In
       all cases where the file is not readily available (FRC, other
       Service office, etc) a MIRAC print out with pertinent biographical
       data will be included in the work folder.
 
          "17.  Applicants will be referred to the third floor for
       acceptance of fees until a secure area for acceptance of fees is
       provided on the tenth floor.
 
          "18.  The Memorandum (sic) of Understanding is not intended to
       abolish, solely because of exclusion here from, any practics (sic)
       which have been mutually acceptable in the New York District
       Travel Control Section."
 
    11.  By letter dated July 1, 1981 the Charging Party replied to the
 above undated correspondence specifically responding to each of the 19
 items proposed by Respondent in the correspondence noted above.  It
 accepted certain of the proposals which were left unchanged from the
 previous agreements;  but stated that it (sic) either did not agree, or
 wished further negotiations, over others.  Charging Party also invoked
 its right, under Article 3, section G of the parties' contract, to
 negotiate over the proposed changes.  The Charging Party's letter
 stated:
 
          "This 8-page missive was literally more than we requested.
       While we appreciate your reconsideration of immediate unilateral
       recission of past agreements (not a good idea) as stated by the
       departed Acting District Director in his letter of June 9, the
       information provided in this letter is premature and irrelevant to
       the issue at hand.  We did not request Ms. Dec to provide us with
       her opinions as to the negotiability of each issue at this time.
       She and her colleagues as management's chief negotiators at prior
       negotiations permitted bargaining on the subjects listed and gave
       their approval to implementation of the proposed items.  While
       they may be declared non-negotiable at the bargaining table, they
       may not be declared non-negotiable prior to renewed bargaining.
       It is the published intent of the Congress of the United States
       while debating approval of the Civil Service Reform Act of 1978
       that all items, even those management feels should be
       non-negotiable, must be discussed at the bargaining table and a
       good faith effort made to resolve the items in a negotiable
       context.  Declaration of our proposals as non-negotiable prior to
       commencement of negotiations would be a clear Unfair Labor
       Practice, a unilateral change in working conditions not bargained
       in good faith.
 
          "In order to assist your preparation for bargaining I would
       like to review your proposals and make suggestions for changing
       them and for including new proposals.
 
          "Your proposal 1 is an unchanged version of Item 1 of the May
       10 Agreement and is acceptable
 
          "Your proposal 2 is not acceptable.  We propose substituting
       Item 6 of the May 10 Agreement and Item 1 (I) of the November 24
       Agreement.
 
          "Your proposal 3 is an unchanged version of Item 7 of the May
       10 Agreement and is acceptable.
 
          "Your proposal 4 is an unchanged version of Item 8 of the May
       10 Agreement and is acceptable.
 
          "Your proposal 5 is an unchanged version of Item 1(f)of the
       November 24 Agreement and is acceptable.
 
          "Your proposal 6 is an unchanged version of Item 1(g) of the
       November 24 Agreement and is acceptable.
 
          "Your proposal 7 is a modified version of Item 5 of the May 10
       Agreement and is acceptable.
 
          "Your proposal 8 is an unchanged version of Item 3 of the May
       10 Agreement and is acceptable.
 
          "Your proposal 9 is not acceptable.  We propose substituting
       Proposals Two through Six of the District Training Agreement and
       Item 9 of the May 10 Agreement.
 
          "Your proposal 10 is an unchanged version of Item 7 of the
       District Training Agreement and is acceptable.
 
          "Your proposal 11 is not acceptable.  We propose substituting
       Proposal 8 of the District Training Agreement.
 
          "Your proposal 12 is unchanged version of Proposal Nine of the
       District Training Agreement and is acceptable.
 
          "Your proposal 13 is a modified version of Proposal Ten of the
       District Training Agreement and is acceptable.
 
          "Your proposal 14 is a modified version of Item 1(b) of the
       November 24 Agreement and is acceptable.
 
          "Your proposals (sic) 15 appears to be acceptable but we would
       want to discuss procedures for increasing efficiency at the table
       and will not sign off at present.
 
          "Your proposal 16 falls into the same category proposal 15.
 
          "Your proposal 17 is acceptable with inclusion of Item 1(a) of
       the November 24 Agreement.
 
          "Your proposal 18 is acceptable.
 
          "Your proposal 19 is acceptable.
 
          "While proposal 2 of the May 10 Agreement may be too confining
       from large-scale 1-stop operations, it is certainly "moot" and we
       are interested in your proposals to change this section.
 
          "Proposal 4 of the May 10 Agreement concerns the conduct of
       interviews, a practice continuing with the institution of 1-step
       adjudications.  As the practice is not "moot" we propose the
       continuation of this item.
 
          "Item 10 of the May 10 Agreement will be moot upon compliance
       with Article 9 of the May 10 Agreement.
 
          "Item 1(c) of the Agreement continues to be valid and does not
       conflict with the National Agreement as it still places the burden
       for seeking a Desk Audit on the individual employee.  The District
       may at to expedite that request only after an individual employee
       submits it.
 
          "Item 1(d) is redundant and may be deleted as its provisions
       are covered in the May 10 Agreement.
 
          "Item 1(h) was agreed to in order to expedite 245 training at
       the behest of management.  If management does not want this
       assistance it is withdrawn and may be considered subject entirely
       to provisions of the Training Agreement which is still included in
       our proposals (see above).
 
          "Item 1(k) is satisfied pursuant to your stipulation that a
       Contract Guard has been hired and will be employed for crowd
       control and security purposes on the tenth floor.
 
          "Proposal One of the Training Agreement concerns definition for
       the purposes of training and is not used for the vague malignant
       purposes you allege.  We propose continuation of the definition.
 
          "Considering your failure to provide agreeable solutions to all
       of the issues involved, we invoke our right under contract Article
       3(g) to commence negotiations within five workdays, or a
       reasonable time thereafter, on your proposed change in working
       conditions."
 
    12.  The parties agreed to commence negotiations on July 19, 1981.
 On that date the parties met and Charging Party submitted proposals for
 ground rules to cover the negotiations.  The parties agreed to all items
 except items 12 and 13 of the Charging Party's proposals on which an
 impasse was reached.  Said proposals stated as follows:
 
          "12.  The parties recognize that no change in practices and
       procedures will be implemented until conclusion of an Agreement.
 
          "13.  No provisions of this Agreement will go into effect prior
       to completion of negotiations."
 
    Although the parties met with a mediator from the Federal Mediation
 and Conciliation Service on July 30, the ground rules impasse could not
 be resolved.
 
    13.  By letter dated August 5, 1981, Respondent, by James Jasey,
 Acting District Director, notified the Charging Party that the changes
 in Travel Control Branch procedures would be implemented on August 17,
 1981.  It stated that the Union's proposed ground rules would
 indefinitely limit management's ability to take actions protected by
 Section 7106 of the Statute and were, therefore, non-negotiable.  The
 letter again reviewed, item by item, the provisions of the three prior
 agreements and denoted which provisions were being retained at which
 were modified and which were not being retained.  The correspondence
 included the procedures which would be implemented on August 17 and
 invited impact and implementation proposals prior to that date.  The
 Charging Party did not submit impact and implementation proposals.  The
 letter stated:
 
          "Reference is made to the District Director's letter of June 9,
       1981, advising you fo the District's intent to change Travel
       Control procedures as addressed in (1) the Memorandum of
       Understanding transmitted to the parties by Nathan Cohen on May
       10, 1980, (2) District Director Dogin's memorandum of November 5,
       1980, (3) the Memorandum of Understanding, and (4) the Travel
       Control Branch Training Agreement.  You responded to the proposed
       changes by letter dated June 17, 1981, requesting additional
       information with respect to the changes as well as negotiations on
       the proposed changes.  Thereafter, you were provided (in writing),
       Management's full position on all of the items contained in the
       above referenced documents, including but not limited to the
       Agency's position with respect to negotiability.  In addition, you
       were provided nineteen (19) new proposals for consideration.  By
       letter dated July 1, 1981, you responded to the agency's nineteen
       (19) new proposals.  Because your letter of July 1, 1981,
       contained some matter dealing with the impact and implementation
       of Management's proposals, a date for negotiations was scheduled
       for July 29, 1981.  On July 29, 1981, you presented Management
       with a set of proposed ground rules.  The ground rules were
       acceptable with the exception of the following two items:
 
          "'The parties recognize that no change in practices and
       procedures will be implemented until conclusion of an agreement.
 
          "'No provision of this Agreement will go into effect prior to
       completion of negotiations.'
 
          "Your stated position with respect to these items was that
       Management would be precluded from implementing items which it
       considered to be an exercise of a reserved Management right until
       a third party rendered a decision sustaining the Agency's
       non-negotiability determination.  We were unable to resolve our
       differences before a Federal Mediator.  Therefore, this is to
       advise you that it is the Agency's position that the above cited
       Union proposals for ground rules would indefinitely limit
       Management's ability to take action protected by 5 USC 7106.
       Hence, your proposals would restrict the exercise of rights
       reserved to Management by law and as such, the proposals are
       non-negotiable pursuant to 5 USC 7106.
 
          "In addition, this is to advise you that implementation of all
       items agreed to by the Union as well as those items which are not
       negotiable will be implemented August 17, 1981.  Specifically, our
       position on each item is as follows:
 
  "Memorandum of Understanding transmitted by Nathan Cohen on May 10,
 1980.
 
          "Item one (1) was agreed to by the Union and is included as
       Item (1) of the attached document.
 
          "Item two (2) interferes with Management's ability to assign
       work.  In addition, this item purports to determine whether files
       will be used, how they will be used and is determinative of the
       methods and means of performing work.  This item is, therefore,
       non-negotiable pursuant to 5 USC 7106 (a)(2)(3), and 5 USC
       7106(b)(1).
 
          "Item three (3) was agreed to by the Union and is included as
       item two (2) of the attached document.
 
          "Item four (4), the first sentence, restricts Management's
       ability to assign work and personnel and is non-negotiable
       pursuant to 5 USC 7106(a)(2)(3).  The second sentence is included
       as item three (3) of the attached document.
 
          "Item five (5) was agreed to by the Union and is included as
       item four (4) of the attached document.
 
          "Item six (6), the first two (2) sentences, limit Management's
       ability to assign work and personnel, and are not negotiable
       pursuant to 5 USC 7106(a)(A) & (B).  The third sentence requires
       Management to rotate all Examiners and eliminates Management
       discretion to determine which employees will do certain duties.
       It is, therefore, non-negotiable pursuant to 5 USC 7106(a)(2)(A) &
       (B).
 
          "Item seven (7) places a condition on the exercise of
       Management's reserved right to assign work and personnel and would
       personnel and would eliminate Management's ability to assign work
       under certain circumstances and is, therefore, non-negotiable
       pursuant to 5 USC 7106(a)(2)(A) & (B) ability to assign work under
       certain circumstances and is, therefore, non-negotiable pursuant
       to 5 USC 7106 (a)(2)(A) & (B).
 
          "Item eight (8) was accepted by the Union and is included as
       item five (5) on the attached document.
 
          "With respect to item nine (9), a training agreement was
       negotiated and its provisions will be addressed herein.  However,
       the requirement that all Immigration Examiners complete a
       cross-training program interferes with Management's reserved right
       to assign work and personnel and is, therefore, non-negotiable
       pursuant to 5 USC 7106 (a)(2)(A) & (B).  The third sentence
       restricts Management's ability to assign work and personnel and
       limit Management's ability to assign work and personnel and limit
       Management's ability to determine the number of employees assigned
       to a particular unit, and is non-negotiable pursuant to 5 USC
       7106(a)(2)(A) & (B) as well as 5 USC 7106(b)(1).  The last
       sentence is included as item six (6) of the attached document.
 
          "Item ten (10) of the May 10, 1980, Memorandum of Understanding
       limits Management's ability to determine which personnel will do
       which types of work and interferes with Management's right to
       assign work and to direct employees.  It is, therefore,
       non-negotiable pursuant to 5 USC 7106(a)(2)(A) & (B).
 
          "The last paragraph was agreed to by the Union and is included
       as the last item of the attached document.
 
        "District Director Dogin's memorandum of November 5, 1980.
 
          "With respect to items one (1) and two (2), no change was
       proposed by Management.  Therefore, there is no obligation to
       negotiate.  These items are, therefore, included on the attached
       document as item seven (7).
 
          "Item three (3) is determinative of Management's reserved right
       to assign work and personnel and is non-negotiable pursuant to 5
       USC 7106(a)(2)(A) & (B).  In addition, matters dealing with the
       security of the tenth floor cash receipt booth (sic) deal with the
       internal security practices of the Agency as well as the methods
       and means of performing work and are, therefore, non-negotiable
       pursuant to 5 USC 7106 (a)(1) and 5 USC 7106(b)(1).
 
          "Item four (4) has been accomplished.  However, determination
       with respect to the assignment of training duties deal with the
       assignment of work and personnel and is a matter not subject to
       negotiations pursuant to 5 USC 7106(a)(2)(A) & (B).
 
          "Item five (5) places severe limitations on Management's
       ability to assign work and to direct employees.  This item is
       non-negotiable pursuant to 5 USC 7106(a)(2)(A) & (B).
 
          "Item six (6) limits Management's discretion with respect to
       directing employees, assigning work, and determining the number of
       employees assigned to a work unit.  As such, this item is
       non-negotiable pursuant to 5 USC 7106(a)(2)(A) & (B) as well as 5
       USC 7106(b)(1).
 
          "Item seven (7) has been included as item four (4) of the
       attached document.
 
                "One-step Agreement dated November 24, 1981
 
          "Item 1(a) restricts Management's ability to assign work and
       direct personnel and is non-negotiable (sic) pursuant to 5 USC
       7106(a)(2)(A) & (B).  In addition, it deals with the internal
       security practices of the agency and is non-negotiable pursuant to
       5USC 7106(a)(1).
 
          "Item 1(b) is included as item eight (8) of the attached
       document.
 
          "Item 1(c) is included as item nine (9) of the attached
       document.
 
          "Item 1(b) places a limit of two (2) on the number of employees
       the District Director may place on stand-by duty.  Therefore, this
       item interferes with Management's right to assign work, director
       employees and is determinative of the number of employees
       assigned. . . .
 
          "Item 1(e) has been accomplished.
 
          "Item 1(f) and 1(g) were accepted by the Union and are included
       as items ten (10) and eleven (11) of the attached document.
 
          "Item 1(h) restricts Management's ability to direct employees
       and to assign work and is non-negotiable pursuant to 5 USC
       7106(a)(2)(A) & (B).
 
          "The first part of item 1(i) is included on the attached
       document as item twelve (12).  The second part requires Management
       to assign all officers to 245 Standby duty which eliminates
       Management's discretion to determine which personnel will do
       certain duties and is, therefore, non-negotiable pursuant to 5 USC
       7106(a)(2)(A) & (B).
 
          "Item 1(j) was amended by Management and accepted by the Union
       by letter dated July 1, 1981.  The agreed upon item is included on
       the attached document as item sixteen (16).
 
          "Item 1(k) interferes with Management's right to determine the
       internal security practices of the agency as well as Management's
       ability to assign personnel to do certain types of work and is,
       therefore, non-negotiable pursuant to 5 USC 7106(a)(1) and 5 USC
       7106(a)(2)(A) & (B).
 
       "Training Agreement, Travel Control Branch, New York District
 
          "Proposal 1 is determinative of the organization of the Agency
       and is non-negotiable pursuant to 5 USC 7106(a)(1).
 
          "Proposal 2 is also determinative of the organization of the
       Agency and would require Management to assign certain training
       duties at specified times in violation of Management's right to
       assign work and direct employees.  This proposal is, therefore,
       non-negotiable pursuant to 5 USC 7106(a)(1), and 5 USC
       7106(a)(2)(A) & (B).
 
          "Proposal 3 conflicts with Management's right to assign work by
       requiring that there be a cross-training program.  In addition,
       the second two (2) sentences of the proposal place limitations on
       Management's discretion to direct employees and assign work and
       employees unless certain conditions are met with respect to
       training in violation of 5 USC 7106(a)(2)(A) & (B).  For these
       reasons, this proposal is non-negotiable.
 
          "Proposal four (4) places a condition on which employees will
       be assigned training duties as it would require all Examiners to
       be rotated if there exists a need to rotate them or not.  In
       addition, this proposal eliminates Management's discretion to
       determine that there will or will not be a cross-training schedule
       for presentation to the Union in violation of Management's right
       to assign work.  This proposal is non-negotiable pursuant to 5 USC
       7106(a)(2)(B).
 
          "Proposal five (5) negates Management's discretion with
       response to determining the organization of the Agency in that it
       purports to establish a training position as well as the type of
       work assigned to a position.  This proposal is, therefore,
       non-negotiable pursuant to 5 USC 7106(a)(1) and 5 USC
       7106(a)(2)(A).  Proposal six (6) interferes with Management's
       ability to assign work and personnel and is, therefore,
       non-negotiable pursuant to 5 USC 7106(a)(2)(A) & (B).
 
          "Proposal seven (7) was accepted by the Union as written in
       proposal ten (10) of Acting District Director Foster's letter
       which you responded to on July 1, 1981, and is included as item
       thirteen (13) of the attached document.
 
          "Proposal eight (8) would require the Agency to furnish certain
       tools for the performance of work and interferes with Management's
       choice of the means of performing work and is, therefore, excepted
       from Management's obligation to bargain pursuant to 5 USC
       7106(b)(1).
 
          "The Agency's proposal to change proposal nine (9) was accepted
       by the Union by letter dated July 1, 1981, and is included as item
       fourteen (14) on the attached document.
 
          "The Agency's proposal to change proposal ten (10) was accepted
       by the Union by letter dated July 1, 1981, and is included as item
       fifteen (15) on the attached document.
 
          "In the event you would like to present any impact or
       implementation matter for my consideration, please do so prior to
       the August 17, 1981 implementation date.
 
          "1.  The Service and the Union agree that the terms of this
       Agreement and the changes in procedure addressed herein are not to
       be construed as encouraging adjudicating officers to approve
       questionable cases or to short cut fraud investigations.  The
       Service and the Union agree that it is essential to maintain the
       quality of adjudications in this office and will preserve the
       current level of discretion vested in Immigration.
 
          "2.  Premature status report requests (prior to published
       processing periods) from outside the Federal Goverment need only
       be filed.
 
          "3.  Family groups represent one interview.
 
          "4.  Cases will be calendared for interviews conducted on the
       basis of a four day week (Monday through Friday).  One day will be
       a non-interview day enabling officers to work on backlog and
       pending cases.
 
          "5.  The Service and the Union agree that an officer
       adjudicating Section 245 cases may in his discretion, swear in an
       applicant and have him attest to the validity of his statements,
       instead of reviewing each and every item on the 485 application.
 
          "6.  It is understood that Immigration Examiners with
       experience in other Travel Control Sections shall be considered
       cross-trained in those sections.
 
          "7.  A one-step applicant will be directed from the Information
       Unit (first floor) to room 10-104 of Travel Control.  An
       application clerk (trained by Contact Representatives) will review
       the application for completeness.  If not complete, the applicant
       will be informed of deficiencies and told to return with all
       documentation.  If complete, the application will be receipted and
       placed in chronological order.  An immediate search of MIRAC will
       be made to ascertain the existence of an "A" file.  If none exists
       a file will be created through a block of "A" numbers issued to
       Travel Control by ARIS.  If a file exists, a check will be made of
       the file shelf for file location.  If the file is in the file
       room, it will immediately be charged to Travel Control.  If in an
       operating unit, a search for the file will commence immediately by
       the designated "One-Step" file clerk.  If the file is in another
       Service office, a request for the file transfer will be made via
       MIRAC.  If the file is in the Federal Records Center, the
       interview will proceed through the creation of a work folder.  In
       all cases where the file is not readily available (FRC, other
       Service office, etc) a MIRAC print out with pertinent biographical
       data will be included in the work folder.
 
          "8.  The District will initiate a request for inclusion of
       newly assigned duties and functions in the position descriptions
       of Application Clerks.
 
          "9.  The District will attempt to expedite desk audits
       requested by Service personnel who feel that their positions
       should be upgraded due to newly assigned duties and functions
       related to "One-Step".
 
          "10.  In the event fraud is suspected, Immigration Examiners
       only, with the approval of Travel Control Supervisor, limit the
       combined processing of an application to an immediate 245
       interview and consistent with II Handbook guidelines and related
       criteria, refer the I-130 or I-140 portion of the application with
       the file to the I-130 or -140 Unit for further processing and the
       scheduling of an interview for determination of fraud.
 
          "11.  Consistent with the availability of Investigators, an
       Immigration Examiner may, with the approval of a Travel Control
       Supervisor, transfer a file to Investigations for a marriage fraud
       or employment fraud investigation.  The 245 portion of the
       interview is to be completed but no formal I-130 or I-140
       interview need be conducted.  Such referrals shall be consistent
       with II Handbook guidelines and related criteria.
 
          "12.  Assignments to 245 Examinations are to be equitable.
 
          "13.  To the extent possible Immigration Examiners will be
       furnished a complete and current set of the laws, regulations, and
       O.I.'s as well as all transmittal memoranda changing the laws,
       regulations, (sic) O.I.'s and the Handbook.
 
          "14.  The New York District Office will encourage training be
       exercising diligence in informing employees to the extent possible
       of all available training programs, training material including
       language tapes, and tuition assistance programs.  If an employee
       wishes to enroll in an outside training program, Management will
       consider a request for a change in shift.  If necessary, and if
       consistent with the needs of the Unit.
 
          "15.  To the extent possible, the New York District will afford
       Immigration Examiners the opportunity to attend the Journeyman
       Examiners Course.
 
          "16.  Except as otherwise provided in this letter, there is no
       intent to abolish, solely because of exclusion (sic) here from,
       any practices which have been mutually acceptable in the New York
       District Travel Control Section.
 
          "17.  It is understood by the parties that these provisions may
       be modified by Management in accordance with Article 3, Section G
       of the National Agreement."
 
    On or about August 17, 1981 the three prior agreements were replaced
 by the procedures contained in the August 5 correspondence.  On August
 26, 1981, the Charging Party formally requested Federal Service Impasse
 Panel (herein called FSIP) assistance with respect to the impasse over
 ground rules.  The FSIP subsequently declined jurisdiction over the
 August 26 request for assistance.  This denial was based on the fact
 that there was a threshhold question concerning the Employer's
 obligation to bargain over the union's ground rules proposals which had
 to be resolved before the Panel would assert jurisdiction.
 
    14.  Among the provisions of the May 10, 1980 Memorandum of
 Understanding (paragraph 4) referred to above was the following:  "The
 Service and the Union agree that the interviewing of Section 245
 applicants shall be based on an average of 10 interviews per officer per
 day.  Family groups represent one interview." This was one of the items
 declared non-negotiable.  The procedures implemented on August 17, 1981
 were silent with respect to any fixed number of interviews an officer
 would be expected to take per day.
 
    15.  Among the provisions of the November 24, 1980 Negotiated
 Agreement on "One-Step" Examinations referred to above in paragraph 20
 was the following:  (paragraph 1(a)) "A Cash Clerk will not be stationed
 on the Tenth Floor prior to completion of a bullet proof booth with
 silent alarm extension to the Federal Protective Service." This is
 another of the items which was declared non-negotiable.  The procedures
 implemented on August 17, 1981 were silent with respect to this issued.
 
    16.  On or about October 5, 1981, Respondent servied the Charging
 Party with a copy of an October 2 intra-management memorandum.  The
 Union responded to this memorandum on October 5, 1981.  Management
 responded on October 8 and 21.  The Union responded to these letters on
 October 14 and October 21, respectively.
 
    In addition to the stipulation the parties introduced testimony at
 the hearing.  That testimony indicates that the procedures implemented
 on August 17, 1981 were silent with respect to any fixed number of
 interviews an officer would be expected to take per day.  This figure
 had not been formally increased until the October memorandum.  Several
 employees established through their testimony that effective November 2
 management increased the number of required interviews from 10
 interviews to 15.  The impact of change was increased pressure on
 employees to work harder and faster, resulting in stress and a lowering
 of morale and the need for some employees to often work beyond their
 normal duty hours in order to keep with their new daily case
 requirements.  Employees are also unable to work off their backlogs and
 sometimes are criticized on evaluations in this respect.
 
    With regard to the assignment of a cashier to the tenth floor, on of
 the provisions of the November 24, 1980 negotiated agreement between the
 Respondent and the Union was the floowing provision:  "A Cash Clerk will
 not be stationed on the Tenth Floor prior to the completion of a bullet
 proof booth with silent alarm extension to the Federal Protective
 Service." This provision was one of the items declared to be
 non-negotiable by Respondent when it terminated the three negotiated
 agreements in August of 1981.  The new procedures Respondent implemented
 on August 17 were silent with respect to this issue.  The evidence
 introduced at the hearing established that while a booth with bullet
 proof glass was set up for the cash clerk, on the tenth floor, no silent
 alarm was ever installed.  No notification was given to the Union of
 management's intention to assign cash clerks to the tenth floor until
 the October memorandum.  The need for a silent alarm and employee
 concerns with regard to having to perform this duty is indicated by the
 fact that Respondent's cash clerks in other locations within the same
 building have been the victims of at least two armed robberies.
 
    The parties urged that the issues presented herein are as follows:
 
          "A) Did Respondent violate Section 7116(a)(1) and (5) of the
       Statute when, on August 17, 1981, it implemented at Travel Control
       Branch procedures, which did not contain some of the provisions
       contained in the three previously negotiated agreements?
 
          "B) Did Respondent violate Section 7116(a)(1) and (5) of the
       Statute when, it began assigning unit employees to work as
       cashiers on the Tenth Floor without installing a silent alarm
       system?
 
          "C) Did Respondent violate Section 7116(a)(1) and (5) of the
       Statute when, on or about October 2, 1981, it effectively
       implemented an increase in the number of case interviews unit
       employees were required to conduct each work day without affording
       the Charging Party an opportunity to negotiate concerning the
       impact and implementation of the change?"
 
                                Conclusions
 
                               (a) 2-CA-1151
 
    Respondent suggests that this matter is one for invocation of the
 parties negotiated grievance procedure.  The General Counsel presented a
 prima facie case of abrogation of three (3) memoranda agreed to by the
 parties, but ignores the above argument.  Such previously agreed to
 memoranda, even under general law, are an extension of the contract.
 Further, "a collective bargaining agreement is not an ordinary contract.
  '. . .(I)t is a generalized code to govern a myriad of cases which the
 draftsmen cannot wholly anticipate. . . .  The collective agreement
 covers the whole employment relationship.  It calls into being a new
 common law -- the common law of a particular industry or of a particular
 plant.'" John Wiley and Sons v. Livingston, 376 U.S. 543, 550 (1964).
 In order to modify or change that agreement, good faith negotiations
 must occur under the Statute.  Contrary to Respondent's proposition,
 this is not a case where the existence of the unfair labor practice
 turns on the interpretation ofthe parties collective bargaining
 agreement or whether or not that agreement had been breached, but
 rather, it is a case where the Authority must consider whether the
 Respondent's abrogation of the agreed upon memoranda, which had become
 part of its collective bargaining, constituted the violation of a
 statutory right.
 
    In short, the real issue in this matter is whether Respondent gave
 the Union an opportunity to negotiate concerning its proposed action to
 terminate the three (3) memoranda which concerned conditions of
 employment in a unit of employees it represented.
 
    Resolution of that issue does not require the Authority to interpret
 Article 3, Section G of the National Agreement.  Nor does it require, as
 Respondent advocates, an analysis as to whether a patent or flagrant
 breach of the agreement exists.  Moreover, it is not a case where the
 breach of the agreement exists.  Moreover, it is not a case where the
 Authority would be divested of jurisdiction to decide the matter, even
 if a construction of Article 3, Section G was necessary to decide
 whether the Statute had been violated.  Determination requires only a
 finding of whether Respondent gave notice of its proposed action to
 terminate the three (3) memoranda and an opportunity to negotiate.  It
 did not.
 
    A bare assertion that the resolution of this matter should be made
 through the grievance machinery of the parties unfortunately does not
 make it so.  Such a contention requires examination of the clause in
 question.  After such an examination, it is my belief that Respondent's
 efforts to invoke the negotiated grievance machinery is wholly untenable
 and must fall in view of the plain and unambiguous language of that
 Article.  Inasmuch as the Article manifestly does not sanction the
 changing of previously agreed upon memoranda without good faith
 negotiations, it is found that Respondent's action in abrogating those
 agreements was a modification of the collective bargaining agreement
 between the parties which gave rise, not to an arbitrable matter of
 contract interpretation, but to an unfair labor practice.  My
 conclusion, therefore, must be that Respondent violated section
 7116(a)(1) and (5) when it abrogated or repudiated the three (3)
 memoranda, by substituting on August 5, 1981 one memoranda of its own
 without bargaining with the exclusive representative.
 
    Respondent acknowledges confusion as to the General Counsel's
 position in this matter.  Indeed there is difficulty with that analysis
 which relies, it appears almost exclusively, on establishing the
 negotiability of the matters terminated.  A review of the proposals
 asserted by the General Counsel to be negotiable demonstrates that at
 least some of the proposals had been previously determined by the
 Authority to be negotiable prior to the hearing in this matter, while
 others were determined to be negotiable by the Authority after the
 Respondent submitted its position of nonnegotiability.  In any event,
 case law now clearly enjoins that an assertion of nonnegotiability as
 the basis for revoking a previous agreement, and actions taken in
 repudiation of that agreement constitute a repudiation of the agreed
 upon matter or matters in violation of section 7116(a)(1) and (5) of the
 Statute, if the Authority has previously determined that essentially
 identical proposals are negotiable.  See Department of Treasury,
 Internal Revenue Service, Memphis Service Center, 15 FLRA No. 159
 (1984);  see also Department of the Air Florce, U.S. Air Force Academy,
 6 FLRA 548 (1981), aff'd 717 F2d 1314 (16th Cir. 1983).  See also
 Veterans Administration, Veterans Administration Regional Office
 (Buffalo, New York), 10 FLRA 167 (1982);  Great Lakes Program Service
 Center, Social Security Administration, Department of Health and Human
 Services, Chicago, Illinois, 9 FLRA 499 (1982), and cases cited therein.
  In such circumstances, I deem it unnecessary to decide whether a
 particular provision was or was not negotiable, but conlude that the
 General Counsel's showing that some matters contained in the three (3)
 memoranda which were declared by Respondent to be nonnegotiable had
 previously been determined by the Authority to be negotiable and is
 sufficient to meet its burden of proof requirements for establishing an
 abrogation or repudiation of existing agreements between the parties.
 
    Implicit in the above findtng is a rejection of Respondent's argument
 that the Nation Agreement is controlling herein.
 
                              (b) 2-CA-20037
 
    Respondent admits that it "technically" changed the November 24, 1980
 agreement involving whether or not it would provide bullet proof glass
 and a guard on the 10th floor for the cashier.  Its defense is that the
 impact of such a change was insubstantial and, in essence, unworthy of
 consideration as a violation of the Statute by the Authority.
 
    It also admits deleting certain provisions from the collective
 bargaining agreement concerning calendar procedures for scheduling
 interviews, but contends that this provision was inherent in its right
 to assign work under section 7106(a)(2)(A) and (B) of the Statute and
 thereby its right to determine the quantity of work to be performed by
 employees.  Assuming it had an obligation to bargain, management asserts
 that the General Counsel failed to establish any adverse impact of this
 change.
 
    With respect to the former issue of management rights, it is clear
 from the record that what is involved here are aspects of procedures by
 which Respondent would schedule interviews and not an infringement on
 its right to assign such work.  In those circumstances section
 7106(b)(2) /10/ cannot be ignored.  It is concluded that the Union had a
 statutory right to bargain over those procedures.  Moreover, case law
 has clearly established that an opportunity to bargain concerning impact
 and implementation must be offered to the union even where management
 rights are involved.  Internal Revenue Service, Jacksonville District, 3
 FLRA 630 (1980);  Internal Revenue Service, Washington, D.C., 4 FLRA 488
 (1980).
 
    Concerning the latter issue, it is plain from the record that
 cashiers handled large sums of money and several robberies had occured,
 thereby, making employees apprehensive about their safety when working
 the tenth floor cashier without adequate security for their safety.
 Notwithstanding that Respondent sees little impact, It find that this
 change had more than an insubstantial impact on employees working
 conditions, thereby rejecting Respondent's argument that the matter is
 de minimus.  It must, therefore, be concluded that the "technical"
 change without negotiations is violative of section 7116(a)(1) and (5)
 of the Statute.
 
    Accordingly, it is concluded that Respondent violated section
 7116(a)(1) and (5) of the Statute by unilaterally implementing changes
 in October 1981 concerning the tenth floor cashier and by implementing
 an increase in the number of case interviews unit employees were
 required to conduct each work day without affording the Union an
 opportunity to negotiate concerning the impact and implementation of the
 changes.
 
                                The Remedy
 
    Having found that Respondent did engage in conduct violative of
 section 7116(a)(1) and (5) of the Statute it is recommended that an
 Order issue requiring it to cease and desist therefrom and take certain
 affirmative actions designed to effectuate the policies of the Statute.
 
    The General Counsel requests that Respondent be required to
 reinstitute the negotiated agreement provisions which were unilaterally
 terminated by Respondent in violation of section 7116(a)(1) and (5) of
 the Statute.  I agree that such agreements should be reinstated and
 Respondent required to honor said agreements until such time as they are
 changed or terminated through good faith negotiations.
 
    With regard to Respondent's failure to install a silent alarm system
 in the cash clerks booth and the scheduling of interviews the General
 Counsel also requests a status quo ante remedy notwithstanding the fact
 that only impact and implementation negotiations would be appropriate.
 
    At the hearing, Respondent argues that any status quo ante
 requirement which would require it to reduce employee management
 production for any period of time, would be severely disruptive of its
 operation, create a backlog of interviews and, thereby impair the
 efficiency and effectiveness of the Agency's operations.  Significantly,
 the General Counsel did not respond directly to this argument either at
 the hearing or in its brief.  While I do not deem Respondent's
 declaration that its operations would be disrupted by such a remedy as
 evidence of such disruption.  I must note the Authority's recent
 decision in Department of the Treasury, Internal Revenue Service,
 Jacksonville District, Jacksonville, Florida, 15 FLRA No. 187.  There
 the Authority found that a mere claim in a post hearing brief was
 sufficient to establish that returning to old methods would cause
 substantial disruption of government operations.  Unlike that case, the
 General Counsel here had an opportunity to establish, on the record,
 that such disruption would not have been caused.  If the Authority found
 the statement sufficient in the IRS, Jacksonville District case, it is
 plain, that here where the General Counsel had the opportunity to rebut
 Respondent's claim that a status quo ante remedy would be unwarranted.
 
    Therefore, it is concluded, that a status quo ante remedy is not
 warranted in the instant matter.  Accordingly, it is recommended that
 the Authority adopt the following:
 
                                   ORDER
 
    Pursuant to 5 U.S.C. Section 7118(a)(7) and Section 2423.29 of the
 Final Rules and Regulations of the Federal Labor Relations Authority,
 U.S. Fed. Reg. 3842, 3510 (1980), it is hereby ordered that U.S.
 Immigration and Naturalization Service shall:
 
    1.  Cease and desist from:
 
          (a) Rescinding or abrogating agreements made with American
       Federation of Government Employees, Local 1917, AFL-CIO, without
       affording it the opportunity to bargain concerning proposed
       changes.
 
          (b) Unilaterally implementing changes in working conditions of
       employees in an appropriate unit without first notifying the
       American Federation of Government Employees, Local 1917, AFL-CIO,
       and affording it the opportunity to negotiate, to the extent
       consonant with law and regulations, concerning the impact and
       implementation of such changes.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute:
 
          (a) Rescind the memorandum of August 5, 1981 concerning the
       abrogation of three (3) previously agreed to memoranda and
       reinstate those three (3) memoranda.
 
          (b) Upon request of the American Federation of Government
       Employees, Local 1917, AFL-CIO, negotiate conerning the changes to
       be implemented which would change the three (3) previously
       negotiated memoranda.
 
          (c) Upon request of the American Federation of Government
       Employees, Local 1917, AFL-CIO, negotiate concerning the impact
       and implementation of the new calendar procedure and the silent
       alarm system on the 10th floor conerning appropriate arrangements
       for employees who have been on may be adversely affected by such
       changes.
 
          (d) Post at the U.S. Immigration and Naturalization Service
       facility at the New York District Office 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 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.  The District Director shall
       take reasonable steps to insure that such notices are not altered,
       defaced, or covered by any other material.
 
          (3) Pursuant to Section 2423,30 of the Final Rules and
       Regulations, 45 Fed. Reg. at 3511, notify the Regional Director of
       Region 2, 26 Federal Plaza, Room 24-102, New York, New York 10278,
       in writing, within thirty days from the date of this Order, as to
       what steps have been taken to comply herewith.
 
                                       /s/ ELI NASH, JR.
                                       Administrative Law Judge
 
    Dated:  September 24, 1984
    Washington, DC
 
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) ARTICLE 3 -- Union Relations at the National, Regional and
 
    Local Levels
 
    G.  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
 levels 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 other 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 or receipt by the other party of a request to
 negotiate.  Reasonable extensions of these time limits may be granted on
 request.
 
    (2) See footnote 1 above.
 
    (3) There is no dispute, and in the Authority's view it is
 unnecessary to determine, whether the Respondent properly could have
 effected the change it desired under the terms of the collective
 bargaining agreement then at mid-term, since both parties held
 themselves bound by Article 3, Section G of that contract.
 
    (4) We see no merit in the Respondent's argument that the Judge erred
 in finding that the memoranda of understanding constitute, in effect, a
 complete collective bargaining agreement which could not be changed
 without violating the national agreement.  The Judge specifically
 rejected the Respondent's earlier, opposite contention that he should
 make such a finding.  He found instead that abrogation of the memoranda
 constituted the violation of a statutory right.  In any event, we
 disagree with the Judge and find no violation of the Statute by the
 Respondent as alleged in this case.
 
    We also see no merit in the Respondent's contention that the Judge
 should have rules on the negotiability of the terms of the memoranda and
 the Union's proposal.  As the Judge noted, the "real issue" in this case
 is whether the Respondent gave the Union notice of its proposed changes
 and an opportunity to negotiate.  He found that neither was given.
 Since we have found, to the contrary, that the Respondent did not fail
 to give notice or negotiate, it is unnecessary to make individual
 negotiability determinations here.
 
    (5) The Respondent's alternate argument, namely, that the Judge erred
 in finding that the three memoranda of understanding constituted a
 complete collective bargaining agreement which could not be changed,
 lacks any merit in Case No. 2-CA-20037 for the same reasons as in Case
 No. 2-CA-1151, discussed in footnote 4 above.  Moreover, regardless of
 whether the Judge made such an error in this case, we can discern no
 reason to find it to be reversible error in view of our finding that the
 Respondent did violate section 7116(a)(1) and (5) of the Statute by not
 affording Local 1917 its notice-and-opportunity-to-negotiate rights with
 respect to the two specific provisions discussed in the text above.
 
    (6) The specific procedures the parties are referring to are not
 readily apparent from the record.
 
    (7) 6) reads, in pertinent part, as follows:  ". . . no examiner who
 is not permanently assigned to the Section 245 Unit will be assigned to
 work in Section 245 more than one day a week. . . .  All Immigration
 Examiners shall be rotated equitably into the Section 245 Unit.
 
    (8) 9) reads as follows:  ". . . agree that all Immigration Examiners
 shall complete a cross training program that will be negotiated within
 60 days. . . ."
 
    (9) Article 3, Section G of the National agreement reads as follows:
 
          "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. . . .
 
          "If the disagreement exists, either the service or the Union
       may serve notice on the other 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. . .
 
          "Nothing in the foregoing shall require either party to
       negotiate on any matter it is not obligated to negotiate under
       applicable law."
 
    (10) Section 7106(b)(2) reads as follows:
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating --
 
          "(2)