U.S. Federal Labor Relations Authority

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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 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
    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.
    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
                                       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
    /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.