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The decision of the Authority follows:
16 FLRA No. 20 IMMIGRATION AND NATURALIZATION SERVICE Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL Charging Party Case No. 3-CA-20590 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record, including the parties' stipulation of facts, accompanying exhibits, and briefs submitted by the Respondent, Charging Party and the General Counsel, the Authority finds: /1/ The complaint herein alleges that the Immigration and Naturalization Service (the Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /2/ when during April, 1982, it refused, and continues to refuse, to enter into negotiations with the American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council (INS Council), the Charging Party, over a merit promotion and reassignment plan. The INS Council since 1968 has been the exclusively recognized collective bargaining representative for a unit consisting of all personnel of the Immigration and Naturalization Service, except those assigned to Border Patrol Sectors, professional employees, and those excluded from coverage by the Statute. There is a separately recognized unit of the Respondent's non-supervisory, non-professional Border Patrol personnel who have been exclusively represented by the American Federation of Government Employees, AFL-CIO, National Border Patrol Council (Border Patrol Council) since on or about June 12, 1967. Both unions were granted exclusive recognition by the Respondent in the separate units noted under the provisions of Executive Order 10988. /3/ Currently and at all times relevant herein, the Border Patrol unit is involved in a proceeding before the Authority which raises a question concerning representation (qcr) therein. /4/ The American Federation of Government Employees, AFL-CIO (AFGE) and the Respondent have had a history of multi-unit negotiations since shortly after both separate bargaining units were granted exclusive recognition. Based on a memorandum of understanding signed by the Respondent and the AFGE in 1970, the Respondent and the AFGE negotiated a merit promotion plan, also known as Administration Manual 2265, covering both bargaining units. The merit promotion plan is an agreement separate from the parties' master collective bargaining agreement. This multi-unit merit promotion plan remains in effect. The plan presently encompasses the promotion and reassignment procedures for employees represented by the INS Council and the Border Patrol Council. In November 1972, the Respondent and the AFGE signed a memorandum of understanding regarding the negotiation of a new merit promotion and reassignment plan. There have been various attempts since that time to negotiate certain changes in the plan and, in December 1977, the parties negotiated changes in certain procedures of the plan. Those changes in the plan were signed by a representative of the Respondent and a representative of AFGE. In April 1978, the Respondent and AFGE began negotiations for a new joint merit promotion and reassignment plan. In September 1978, separate negotiations began on a new master agreement, also historically negotiated on a multi-unit basis. The parties agreed to table negotiations over a new merit promotion and reassignment plan until after the completion of the negotiations for the master collective bargaining agreement. However, on December 15, 1978, the Respondent wrote AFGE requesting resumption of negotiations for a new merit promotion and reassignment plan. During the continuation of negotiations over the master agreement in January 1979, the INS Council began negotiations over a master agreement not including the Border Patrol Council, because a petition had been filed in the Border Patrol unit raising a QCR. Because of that petition, negotiations over a new master collective bargaining agreement with the Border Patrol Council ceased on January 22, 1979. The INS Council and the Respondent reached agreement on a new master collective bargaining agreement to be in effect for a period of three years from its June 13, 1979 execution date. Only the employees in the INS Council's unit are covered by this contract. It superseded an earlier expired multi-unit master agreement which was executed on September 30, 1976 covering both units. In part, the June 13, 1979 agreement states: Article 36-- Merit Promotion Plan I The Merit Promotion Plan presently in negotiation will become part of this agreement as Appendix I, when approved by both parties. Appendix I Merit Promotion Plan I Merit Promotion Plan I, when negotiated, will be published as Appendix I of this agreement, in accordance with Article 36. By letter dated June 11, 1979, the AFGE requested that negotiations on a merit promotion plan be reconvened. The Respondent answered by letter dated June 25, 1979, stating that it was looking into its own proposals in light of the Civil Service Reform Act and, that it would contact AFGE when it was ready to resume negotiations. Thereafter, by letter dated September 24, 1980, the president of the INS Council requested that negotiations on merit promotion be renewed as soon as possible and that all correspondence regarding proposals be addressed to him. The Respondent by letter dated October 14, 1980, to the INS Council president stated, in part, that: Although we too would like to renegotiate the promotion plan provisions, we do not believe such negotiations are possible at this time. As you are aware, a question exists concerning the recognition of the American Federation of Government Employees, National Border Patrol Council, as the representative for eligible INS employees assigned to sectors; and we are unable to negotiate with the American Federation of Government Employees regarding the conditions of employment for the employees in the bargaining unit in question. The merit promotion plan in existence was negotiated by both the National INS Council and National Border Patrol Council, and covers bargaining unit employees represented by both those organizations. Inasmuch as any changes initiated through negotiation with the National INS Council would also change the conditions of employment for employees represented by the National Border Patrol Council, we are unable to enter into such negotiations at this time. Therefore, we plan to hold your request in abeyance pending resolution of the recognition dispute. The Respondent was informed by the National Border Patrol Council on March 19, 1981, that it would consider any change in the merit promotion plan to constitute a change in working conditions in its bargaining unit and would thereby require bargaining. On December 9, 1982, pursuant to the terms of the parties' 1979 negotiated agreement, the AFGE submitted a demand to renegotiate the agreement along with comprehensive proposals, including one concerning merit promotion. The INS Council and its AFGE national headquarters notified the Respondent by letter dated February 2, 1982, that they would no longer participate in any multi-unit bargaining relationship with the Respondent. The Respondent informed the AFGE and INS Council that such notice of position on multi-unit bargaining generally had not changed its position that negotiations over merit promotion would be precluded because of the pending QCR concerning the Border Patrol Council. On February 18, 1982, the Border Patrol Council notified the Respondent that it also intended to terminate its multi-unit bargaining relationship, except in regard to the merit promotion plan. The Respondent informed the Border Patrol Council that until the QCR was resolved it would make no decision regarding the severing of multi-unit bargaining relationships. On April 1, 1982, the Respondent and the INS Council entered into a ground rules agreement to commence master agreement negotiations on April 19, 1982. Negotiations were conducted on more than 50 dates between April 19, 1982, and July 29, 1982. Since the commencement of master agreement negotiations the Respondent has declined to negotiate on the merit promotion proposals submitted by the INS Council stating that such negotiations would constitute a renegotiation of the merit promotion and reassignment plan agreement of 1970 and would require that management also enter into negotiations on merit promotion procedures with the Border Patrol Council. In Immigration and Naturalization Service, 16 FLRA No. 19 (1984), the Authority determined that the Immigration and Naturalization Service, the same Respondent as is involved herein, had not violated the Statute by failing to bargain separately with the INS Council for a merit promotion and placement plan. In so finding, the Authority noted that there had been no timely or otherwise appropriate withdrawal by the INS Council from the multi-unit bargaining arrangement. The Authority also held that inasmuch as there existed a question concerning representation in the Border Patrol unit, that the Respondent was required to maintain the terms of the merit promotion and placement plan to the maximum extent possible. Noting that the plan inextricably intermingled the rights of employees in both the INS Council and Border Patrol units, the Authority found that, had the Respondent bargained separately with the INS Council over the plan, this necessarily would have led to changes in conditions of employment for employees in the Border Patrol unit, which the Respondent was required to maintain. Under those circumstances, the Authority concluded that the Respondent was not obligated to negotiate with the INS Council with respect to the plan. For the reasons more fully set forth in that decision, the Authority similarly concludes in the instant case that the Respondent's conduct was not violative of the Statute and shall order that the complaint be dismissed. ORDER IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-20590 be, and it hereby is, dismissed. Issued, Washington, D.C., September 28, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The facts herein are identical to the facts presented in Immigration and Naturalization Service, 16 FLRA No. 19 (1984) concerning the conduct of the parties through October 14, 1980. The instant case pertains as well to conduct occurring after that date. /2/ Section 7116(a)(1) and (5) states in pertinent part: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; * * * * (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) /3/ These recognitions were granted under Executive Order 10988 which governed labor-management relations in the Executive branch of the Federal service at the time. (Executive Order 10988 was replaced in 1969 by Executive Order 11491, which was succeeded by the Statute.) Section 7135(a)(1) of the Statute authorizes the renewal or continuation of such units which came into existence prior to the effective date of the Statute. Section 7135(a)(1) of the Statute provides: Sec. 7135. Continuation of existing laws, recognitions, agreements, and procedures (a) Nothing contained in this chapter shall preclude-- (1) the renewal or continuation of an exclusive recognition, certification of an exclusive representative, or a lawful agreement between an agency and an exclusive representative of its employees, which is entered into before the effective date of this chapter(.) /4/ In United States Department of Justice, United States Immigration and Naturalization Service, 9 FLRA 253 (1982), petition dismissed sub nom. Int'l Bhd. of Police Officers v. FLRA, 727 F.2d 481 (5th Cir. 1984), the Authority set aside the results of an election held between the Border Patrol Council and a rival petitioning labor organization and ordered that a second election be held. To date, the second election has not been held and the question concerning representation has not yet been resolved.