16:0088(20)CA - INS and AFGE, National INS Council -- 1984 FLRAdec CA
[ v16 p88 ]
16:0088(20)CA
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.