16:0088(20)CA - INS and AFGE, National INS Council -- 1984 FLRAdec CA

[ v16 p88 ]
The decision of the Authority follows:

 16 FLRA No. 20
 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:
    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
    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
                     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 Re