18:0875(103)CA - INS, Eastern Regional Office (Burlington, VT) And National INS Council, AFGE -- 1985 FLRAdec CA
[ v18 p875 ]
18:0875(103)CA
The decision of the Authority follows:
18 FLRA No. 103
IMMIGRATION AND NATURALIZATION
SERVICE, EASTERN REGIONAL OFFICE
(BURLINGTON, VERMONT)
Respondent
and
NATIONAL IMMIGRATION AND
NATURALIZATION SERVICE
COUNCIL, AFGE, AFL-CIO
Charging Party
Case No. 1-CA-20278
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint, and recommending that
it be ordered to cease and desist therefrom and take certain affirmative
action. Exceptions to the Judge's Decision were filed by the
Respondent, and the General Counsel filed an opposition to the
exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations as modified herein.
The Judge found that in changing the term of reassignment with
respect to the Respondent's upward mobility program, known as the
Internal Reassignment Program (IRP), from a summer period to potentially
a one-year period, and also expanding the coverage of the program to
include positions GS-5 and above rather than only Immigration Inspector
positions, it changed a past practice regarding conditions of employment
without giving the Charging Party, the employees' exclusive
representative, an opportunity to bargain concerning the impact and
implementation of such changes. In this connection, the Judge found
that the Respondent violated its obligation to bargain when it refused
to negotiate over these changes and, thus, Respondent violated section
7116(a)(1) and (5) of the Statute. /1/ and that a status quo ante
remedy was warranted.
The Authority agrees with the Judge's conclusion that the Respondent
unilaterally made changes in its upward mobility program with respect to
both the length of time of the reassignments and the positions covered
by the program, thereby changing a past practice regarding conditions of
employment. The Authority further agrees with the Judge, contrary to
the Respondent's contention, that such changes would have a reasonably
foreseeable adverse impact on unit employees which is more than de
minimis. Thus, the revised upward mobility plan in effect extended the
applicability of the program to additional categories within the unit
and therefore to larger numbers of unit employees. The employees thus
affected are thereby subjected not only to possible reassignment, but
also to a change in the nature and safety of their tasks. Moreover, it
is reasonably foreseeable that, by increasing the number of employees
who might be considered for selection under the revised upward mobility
plan, the opportunities for selection by those who had been previously
eligible would be decreased. Since the Judge in essence concluded that
the Respondent violated the Statute based on its refusal to bargain over
the impact and implementation proposals submitted by the Charging Party,
the Authority must now determine whether those proposals, including
proposals not specifically considered by the Judge, are within the
Respondent's duty to bargain.
The Authority determines that the following proposals are within the
duty to bargain pursuant to section 7106(b)(2) of the Statute /2/ as
they constitute negotiable procedures management would follow when
exercising its rights under section 7106(a)(2) of the Statute: /3/
1. The effective date for the implementation of the Internal
Reassignment Program (IRP) will be the first pay period after
November 15, 1982.
13. In choosing among otherwise qualified applicants whenever
possible consideration shall be given to the selection of
candidates who have not been previously selected to fill Internal
Reassignment Plan positions in order to provide that the largest
possible number of qualified applicants may be provided access to
the training opportunities.
14. Whenever possible, in units and situations where field
team work is involved volunteers shall be solicited to work with
the Internal Reassignment Plan Selectee prior to their assignment
to work with non-volunteer partners, and the desire of any officer
not to work with the selectee shall not be construed to be
disloyalty or uncooperativeness.
Proposal 1 merely establishes the date for the Respondent's
implementation of the IRP, i.e., the changes in the upward mobility
program. It is well established that procedures to be observed by
management officials in the exercise of their statutory authority under
section 7106 are within the duty to bargain unless, if adopted, they
would deny such authority by preventing the agency from acting at all to
exercise it. American Federation of Government Employees, AFL-CIO,
Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange,
Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom. Department of
Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir.
1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). Under
the circumstances herein, therefore, the proposal is within the duty to
bargain under section 7106(b)(2) because although it would have delayed
the Respondent's implementation of changes in the program, it would not
have prevented management from acting at all to implement those changes
pursuant to its rights under section 7106(a)(2) of the Statute.
Proposal 13 urges but does not require selection of qualified
candidates who have not previously been selected to fill IRP positions.
Since the proposal does not restrict the Respondent's right to select
any candidate or prevent it from considering other categories of
candidates, Proposal 13 is not inconsistent with section 7106(a)(2)(C)
and is within the duty to bargain. Cf. American Federation of State,
County and Municipal Employees, AFL-CIO, Local 2027 and Action,
Washington, D.C., 12 FLRA 643 (1983) (Union Proposal 3) (proposal
mandating selection of in-house applicants is outside the duty to
bargain under section 7106(a)(2)(C) because it prevented the agency from
soliciting and considering outside applicants).
Proposal 14 provides that the Respondent will, whenever possible,
solicit volunteers to work with the IRP selectees in units and
situations where the Respondent has determined field team work is
involved before assigning the selectee to work with a non-volunteer
partner. The Authority has held that where, in management's judgment,
two or more employees are equally qualified and capable of performing
the work, the selection of any one of those employees to perform the
work would be consistent with management's exercise of its rights to
assign employees under section 7106(a)(2)(A) and to assign work under
section 7106(a)(2)(B) of the Statute. Under such circumstances, the
procedure by which employees previously judged by management to be
equally qualified will be selected to perform the work is negotiable
under section 7106(b)(2). Laborers International Union of North
America, AFL-CIO, Local 1276 and Veterans Administration, National
Cemetery Office, San Francisco, California, 9 FLRA 703 (1982); American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 83 (1981). Based
on the language of the proposal and the absence of Resp4ndent arguments
in the record to the contrary, the Authority concludes the proposal
involves the assignment of employees, who have been previously judged by
management to be equally qualified and capable of performing the work,
to work as partners with IRP selectees. In this connection, the
proposal obligates the Respondent to solicit volunteers only "whenever
possible," i.e., only when, in management's judgement, there are
employees equally qualified and capable of performing the work, prior to
the Respondent assigning the work to a non-volunteer. See generally
American Federation of Government Employees, AFL-CIO, Local 1692 and
Department of the Air Force, Mather Air Force Base, California, 8 FLRA
194 (1982) (Provision 2). Thus, if in management's judgment, employees
are not equally qualified and capable, the proposal would permit
management to select an employee for the assignment without reference to
volunteers. Moreover, since the proposal does not require that any
volunteer be selected, it would permit management, after considering the
volunteers, to select non-volunteers for the assignments. Therefore,
the proposal does not interfere with management's rights under section
7106(a)(2)(A) and (a)(2)(B) of the Statute and is within the duty to
bargain under section 7106(b)(2). See also American Federation of
Government Employees, Council of Social Security District Office Locals
and Department of Health and Human Services, Social Security
Administration, 11 FLRA 608 (1983) (Proposal 1).
The following proposals are inconsistent with either section
7106(a)(2) of the Statute and thus outside the duty to bargain, or with
section 7106(b)(1) and negotiable only at the Respondent's election:
3. Employees selected for participation in the IRP (IRPs)
shall successfully complete the Basic Officers Corps Training
appropriate to the branch prior to entering on duty in the
program.
4. IRPs shall be assigned to work with a career tenured
officer who shall assist, advise, counsel, and evaluate the IRPs.
Such evaluations shall be maintained in the IRPs training file as
required in other training programs. Acceptance, or declination
of such a training role on the part of the training officer shall
be voluntary, and shall not be the basis of any adverse or
disciplinary action against an employee and shall not be construed
to constitute disloyalty or uncooperativeness on the part of the
training officer.
5. IRPs shall be assigned to work the same shift as their
training officer.
6. The maximum duration of an IRP detail shall be three (3)
months.
7. No IRPs shall be selected for more than one such training
detail in any fiscal year, nor more than two (2) such details in
his/her career. No IRPs may serve more than one (1) detail in any
branch, except that these limitations may be waived when the
District Director and Local President concur that the pool of
qualified candidates has been exhausted in that District.
8. The IRP is of a temporary and training nature and IRPs
shall not, therefore, be eligible for overtime unless all
permanent and WAE employees have been first offered the
opportunity to work the overtime.
9. No more than five percent (5%) of the workforce in any
given branch may be composed of IRPs.
10. No IRP shall be implemented in any District unless the
branches to be involved are staffed at ninety-five percent (95%)
of permanent allocated positions, except that for the purposes of
this calculation WAEs shall not be considered to be occupying
permanent positions. No IRP shall be implemented unless there is
a clear and demonstrated need for additional manpower in the
branch.
No WAE shall be scheduled to work less than forty (40) hours a
week (except at their own request), nor be terminated for lack of
work, while an IRP is in effect, or while negotiations are
underway for the implementation of an IRP.
With respect to these proposals, Proposal 3 requires that employees
involved in an IRP complete specific formal training. The Authority has
found that proposals which would contractually obligate an agency to
provide formal training and to assign employees to specific types of
training programs are outside the duty to bargain because the assignment
of training under such circumstances constitutes an assignment of work
the negotiation of which is inconsistent with management's right to
assign work under section 7106(a)(2)(B). See generally International
Brotherhood of Electrical Workers, AFL-CIO, Local 121 and U.S.
Government Printing Office, Washington, D.C., 8 FLRA 188 (1982)
(Proposal 1); International Association of Fire Fighters, AFL-CIO, CLC,
Local F-116 and Department of the Air Force, Vandenberg Air Force Base,
California, 7 FLRA 752 (1982); National Association of Air Traffic
Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA 588 (1981) (Proposals I-III); International
Association of Fire Fighters, Local F-61 and Philadelphia Naval
Shipyard, 3 FLRA 437, 439 (1980). Thus, Proposal 3 is outside the duty
to bargain under section 7106(a)(2)(B) because it requires the
Respondent to assign employees to specific training programs.
Proposal 4 requires the Respondent to assign career tenured officers
to work with IRP selectees and to assign specified functions to the
career tenured officers. Thus, this would implicitly prevent assigning
those functions to other personnel and, in this regard, is not
materially different from section 8 of the union proposal before the
Authority in Congressional Research Employees Association and The
Liberty of Congress, 3 FLRA 737 (1980) (proposal which assigned specific
duties to particular positions is held outside the duty to bargain).
For the reasons detailed in that decision, the Authority finds Union
Proposal 4 herein is outside the duty to bargain, in that it is
inconsistent with management's right to "assign work" under section
7106(a)(2)(B) of the Statute. See American Federation of Government
Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army
Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (Union
Proposal 2).
Proposal 5 requires the Respondent to assign IRP selectees and their
training officers to the same shift whether or not the Respondent would
ordinarily make such assignment. In the case where the Respondent would
not ordinarily assign the IRP selectee to the same shift as his or her
training officer, the proposal would directly affect and be
determinative of both the numbers and the types of employees that the
Respondent would assign to work projects or tours of duty and negotiable
only at the election of the Respondent under section 7106(b)(1) of the
Statute. /4/ See American Federation of Government Employees, AFL-CIO,
National Immigration & Naturalization Service Council and U.S.
Department of Justice, Immigration & Naturalization Service, 8 FLRA 347
(1982) (Union Proposal 15).
Proposal 6 limits the duration of assignments under the IRP to 3
months. In this connection, proposals which seek to determine the
duration of work assignments have been found to restrict the right to
assign employees and thus are inconsistent with section 7106(a)(2)(A).
See American Federation of Government Employees, AFL-CIO, Local 916 and
Tinker Air Force Base, Oklahoma, 7 FLRA 292 (1981) (Provision II,
Paragraph 3). Proposal 6 therefore is outside the duty to bargain
because it is inconsistent with section 7106(a)(2)(A) of the Statute.
Proposal 7 places various limitations on the Respondent's ability to
select specific employees for positions, referred to as "training
details," under the IRP. /5/ Section 7106(a)(2)(C) of the Statute
reserves to management the right to make selections for appointments to
positions from among properly ranked and certified candidates for
promotion or from any other appropriate source. The Authority has held
that proposals which limit the consideration of types of applicants or
prevent management from expanding the area of consideration or from
selecting a candidate to fill a position from any other appropriate
source to be inconsistent with section 7106(a)(2)(C). Since Proposal 7
would limit the Respondent's ability to select an employee for an
appointment to an IRP position if the employee has already been selected
during that fiscal year, it is outside the duty to bargain under section
7106(a)(2)(C). See generally American Federation of State, County and
Municipal Employees, AFL-CIO, Local 2027 and Action, Washington, D.C.,
12 FLRA 643 (1983) (Union Proposal 3).
Proposal 8 places limitations on the Respondent's ability to assign
overtime work to IRPs. The Authority has held that proposals which
limit management's discretion to determine which employees will receive
particular work assignments directly interfere with the right to assign
work under section 7106(a)(2)(B). American Federation of Government
Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
Department of Agriculture, Food Safety and Quality Service, Washington,
D.C., 9 FLRA 663 (1982) (Union Proposal 1); American Federation of
Government Employees, AFL-CIO, International Council of U.S. Marshals
Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA
672 (1983) (Union Proposals 2 and 3). Thus, it is unnecessary to
consider the Respondent's other contention that the proposal is outside
its duty to bargain, since Proposal 8 is outside the duty to bargain
under section 7106(a)(2)(B) of the Statute.
Proposal 9 restricts the number of positions in a branch which can be
filled under the IRP. Thus, the proposal concerns both the number and
types of positions to be reserved for filling through the upward
mobility program. The Authority has held that proposals requiring the
agency to fill a certain percentage of positions through upward mobility
are inconsistent with the agency's authority under section 7106(a)(2)(A)
of the Statute to hire and assign employees. See American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C., 8 FLRA 460 (1982) (Proposal IV); American
Federation of Government Employees, AFL-CIO, Council of Prison Locals
and Department of Justice, Bureau of Prisons, 11 FLRA 286 (1983)
(Provision 1). Thus, Proposal 9 is outside the duty to bargain under
section 7106(a)(2)(A).
The first paragraph of Proposal 10, as with Proposal 9, places
percentage limitations on the Respondent's right to fill positions and,
thus, is outside the duty to bargain under section 7106(a)(2)(A). The
second paragraph of the proposal, as with Proposal 8, limits the
Respondent with respect to the types of employees to assign work and,
thus, is outside the duty to bargain under section 7106(a)(2)(B).
The Respondent did not specifically claim that Proposal 11,
concerning the weight to be given different kinds of service when
filling permanent appointments, and Proposal 12, limiting eligibility
for IRP positions to employees within a district or commuting area, were
nonnegotiable but refused the Union's request to bargain for other
reasons. With respect to these proposals, the Respondent claimed, in
essence, that it was unnecessary to bargain over them because the
matters proposed were granted by or covered by the current plan, and the
Respondent's claim is not specifically disputed in the record.
Therefore, it has not been established that the Respondent unlawfully
refused to bargain over these two proposals and it is unnecessary to
pass upon the negotiability thereof.
Finally, with respect to another proposal, which concerned future
negotiations, the Respondent based its defense to the refusal to bargain
allegation, in part, on an assertion that it had made no change in the
previous upward mobility program, known as the Summer Internal
Reassignment Program. The Authority has determined that this defense
cannot be sustained in adopting the Judge's conclusion to the contrary,
supra, p. 2. Further, since this proposal concerns future negotiations
and does not present definite matters for the Respondent to negotiate
with the Union, it is unnecessary to pass upon the negotiability of such
proposal at this time.
The Judge, having concluded that the Respondent violated section
7116(a)(1) and (5) of the Statute by its refusal to bargain on impact
and implementation matters proffered by the Charging Party, also found
that a status quo ante remedy was appropriate under the circumstances.
The Authority agrees with the Judge that the Respondent's unilateral
changes in the upward mobility program without affording the Charging
Party an opportunity to bargain with respect to the impact and
implementation of the decision constitutes a violation of section
7116(a)(1) and (5) of the Statute. However, upon consideration of the
factors set forth in Federal Correctional Institution, 8 FLRA 604
(1982), the Authority finds that it would not effectuate the purposes
and policies of the Statute to issue a status quo ante order herein. In
this connection, the Respondent notified the Charging Party that it was
modifying the upward mobility program, i.e., the changes were embodied
in the IRP. The Charging Party then made a request to bargain and
submitted 14 proposals, all of which the Respondent contended to be
outside its duty to bargain. The Authority has sustained the Respondent
as to 10 of the proposals. Thus, it is not apparent that the Respondent
wilfully failed to discharge its bargaining obligation under the
Statute. Moreover, the record does not indicate that, as of the date of
the hearing, the Respondent made any reassignments pursuant to the IRP.
Thus, since no actions were taken as a result of Respondent's unlawful
implementation of the IRP, the Authority concludes that a prospective
bargaining order will fully remedy the bargaining violation.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Immigration and Naturalization Service, Eastern
Regional Office (Burlington, Vermont), shall:
1. Cease and desist from:
(a) Implementing changes in the upward mobility program known as the
Internal Reassignment Program, without first notifying the National
Immigration and Naturalization Council, AFGE, the exclusive
representative of unit employees, and affording it the opportunity to
negotiate concerning the impact and implementation of the program.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request of the National Immigration and Naturalization
Council, AFGE, the exclusive representative of unit employees, negotiate
to the extent consonant with law and regulation concerning the impact
and implementation of the Internal Reassignment Program.
(b) Post at its facility at Burlington, Vermont, 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
Regional Commissioner, or his designee, 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 insure that
such Notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director, Region I, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply herewith.
Issued, Washington, D.C., June 28, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 implement any changes in the Internal Reassignment
Program without first notifying the National Immigration and
Naturalization Council, AFGE, the exclusive bargaining representative of
unit employees, and affording it the opportunity to negotiate concerning
the impact and implementation of the program.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL upon request of the National Immigration and Naturalization
Council, AFGE, the exclusive bargaining representative of unit
employees, negotiate to the extent consonant with law and regulation
concerning the impact and implementation of the Internal Reassignment
Program.
(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 I, Federal Labor Relations Authority, whose address is:
441 Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone
number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Joseph Mangiulli, Esq.
Judith Dec
For the Respondent
Daniel Sutton, Esq.
For the General Counsel
Before: WILLIAM NAIMARK, Administrative Law Judge
DECISION
Statement of the Case
This proceeding arises under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute).
It is based on a charge filed on June 21, 1982 by National Immigration
and Naturalization Service Council, AFGE (AFL-CIO) (herein called the
Union) against Immigration and Naturalization Service, Eastern Regional
Office, Burlington, Vermont (herein called Respondent).
Pursuant to a Complaint and Notice of Hearing issued on October 18,
1982 by the Regional Director for the Federal Labor Relations Authority,
Boston, Massachusetts, a hearing was held before the undersigned on
December 15, 1982 at New York, New York.
The Complaint alleged, in substance, that on or about October 1, 1982
Respondent unilaterally changed conditions of employment by implementing
an Internal Reassignment Program without affording the Union an
opportunity to bargain concerning the impact and implementation
thereof-- all in violation of Section 7116(a)(1) and (5) of the Statute.
Respondent's Answer, dated November 10, 1982, denied the aforesaid
allegation and the commission of any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is,
the exclusive representative of all its employees except those assigned
to Border Patrol Sectors and those excluded from coverage by the Civil
Service Reform Act.
2. The aforesaid unit employees have been, since June 13, 1979,
covered by a collective bargaining agreement entered into on that date
between U.S. Immigration and Naturalization Service and the Union
herein. /6/
3. Prior to 1978 Respondent had no reassignment program in respect
to staffing its various locations. The need for more inspectors at peak
travel times, such as summer months, was fulfilled by hiring these
employees as WAE's-- "when actually employed." The latter worked at
Kennedy Airport or ports of entry.
4. In 1978 agency representatives discussed with the Union the idea
of setting up a program to replace the WAE system. Respondent undertook
to develop a Summer Internal Reassignment Program (SIRP). This program
was considered by management to be an upward mobility plan for all
employees holding positions with no promotional possibilities. Under
SIRP they would gain experience in career fields, and it was not
addressed solely to Immigration Inspector positions.
5. Representatives of Respondent, including Judith Dec who was its
labor relations specialist, met in early April, 1979 with several Union
/7/ officials, including Paul Erdheim who was the Eastern Regional
Vice-President for the Union. Erdheim was informed that the SIRP was
being drafted by Respondent's EEO Advisor. Erdheim testified that,
since WAE's are assigned only to the airport or ports of entry in peak
periods, it was "assumed" the program would involve only inspection
positions. Further, that some discussion ensued re other office
positions, as Deportation Officers and Criminal Investigators.
Management mentioned that it would be impossible to put people in those
positions since they are hazardous duty retirement positions; that the
regulars in these jobs have early retirement and a higher deduction on
their retirement plan. /8/
6. On April 30, 1979 Judith Dec /9/ sent a draft of the SIRP to
Erdheim and requested the Union official to submit his written comments
by May 13, 1979. Erdheim responded by letter dated May 16, 1979 in
which he posed several questions re such items as 'long distance
reassignments', 'return to original positions upon completion of
assignment', 'approval of training agreement by the Union', 'repromotion
rights upon termination of SIRP', and 'effect of evaluations upon an
employee's future'. Respondent replied to Erdheim's letter in a letter
dated May 30, 1979 which addressed the queries or matters raised. It
stated therein that the program would be implemented on June 4, 1979 and
that the Union would be informed of any changes re its implementation.
7. The SIRP did not address specific positions to which the
employees would be assigned. Dec testified the purpose of the plan was
to provide employees in 'dead' positions (not promotional) an
opportunity to gain experience in career fields and faster upward
mobility. She averred that it was not intended to address persons
solely going to Immigration Inspector positions; that the Border Patrol
Council was present at discussions since Respondent wanted to give
employees experience in all fields, and the Border Patrol has no
Immigration Inspectors. Prior to the SIRP reassignments were made only
to the position of Immigration Inspectors.
8. In a letter dated January 28, 1982 /10/ Respondent's Associate
Regional Commissioner, Michael D. Mosbacher, advised Union official Carl
Johnson of the agency's intention to extend the availability of SIRP to
the districts and the sectors. Further, Respondent planned to rename
the program the "Internal Reassignment Program" (IRP). Mosbacher also
requested that Johnson notify the agency of any comments re the plan.
9. Johnson replied in a letter dated February 8, in which he asked
for information re the program. He inquired, inter alia, re the extent
of the plans' availability, the grades eligible for reassignment, the
positions to which reassignments would be made, the length of the
reassignment, and the method of selection for participation therein.
10. Mosbacher responded by letter dated March 4 and answered
Johnson's queries. Respondent's official stated the information was
being furnished concerning the Internal Reassignment Program changes.
He mentioned, inter alia, that while Immigration Inspectors only have
been utilized in the past, management would effect the plan for
positions GS-5 and above, depending on district needs; that the plan
would be available to all districts region-wide; that the maximum time
of reassignment will not exceed one year; and that the target date for
implementing the plan is as soon as possible.
11. Union representative Charles Murphy wrote Mosbacher, in a letter
dated March 19, that the IRP would impact negatively on some employees
although benefiting others. Murphy requested bargaining, on behalf of
the Union, re the substance, impact and implementation of the IRP. In
addition, Murphy made specific proposals re the effective date for
implementing the plan, the level at which negotiations should be
conducted, and various proposals re the selection, training and
assignment, of individuals under the IRP.
12. In a reply dated April 5, Mosbacher stated that the SIRP, which
was implemented in 1979, was fully negotiated with the Union; that the
only change to the Plan proposed is its availability year round instead
of just for the summer; and that the only matters which are bargainable
relate to year around utilization of the SIRP. Further, Respondent
stated that Murphy's comments re the provisions of the present Plan are
not proper subjects for bargaining. In respect to the Union's proposals
re the Plan, Mosbacher declared they were either covered already or were
non-negotiable matters.
13. The Union replied in a letter dated April 22 wherein it renewed
its demand to bargain re the IRP. It also added two new proposals: (a)
that consideration be given to selecting candidates not previously
selected to fill IRP positions; (b) volunteers be solicited to work
with selectees prior to assigning the latter individuals to work.
Murphy also stated it would not negotiate further via the mails.
14. In its letter of May 18 Respondent responded to the Union's
demands re negotiations on its proposals. With respect to the two new
items, management asserted they interfered with its reserved rights and
were non-negotiable. Respondent also insisted there was no need to meet
in person since all matters proposed by the Union were not bargainable.
It also stated that implementation was planned for June 1. Thereafter,
on September 23, Mosbacher sent Murphy a copy of the IRP and advised him
that it has been sent to the District Directors and Border Patrol Agents
for immediate implementation if they deem appropriate.
Conclusions
The principal issues for determination herein are as follows: (1)
did the IRP, instituted by Respondent in September, 1982, constitute a
change in past practice re conditions of employment?; (2) assuming
arguendo, that IRP effected a change re reassignments of employees, was
Respondent required to bargain with the Union as to their impact and
implementation?; (3) assuming arguendo Respondent has failed to bargain
as required, is a status quo ante remedy appropriate herein?
(1) It is asserted by Respondent that the 1982 IRP was the same plan
as instituted in 1979 and known herein as SIRP. The employer insists no
change was effected by the IRP except that the reassignments were no
longer restricted to summer, but were extended to a maximum of one year.
As to said change, management maintains it notified the Union thereof
and fulfilled its obligation in this regard. In respect to the coverage
of the IRP for "positions GS-5 and above", Respondent contends no change
was effected; that neither SIRP nor IRP limited its applicability to
any one class of employees, and thus no change was effected by the 1982
plan. Thus, it argues, by extending the time period for the
reassignment plan, and including thereunder the stated classification of
employees, no violation occurred in re its obligation to bargain under
the Statute.
The foregoing argument, while seriously considered by the
undersigned, is rejected. The change in the Reassignment Plan from a
summer period to one year is, in my opinion, substantial in nature.
Since it prolongs the duration of the reassignment program, it
conceivably affects the status of those in the upward mobility program
as well as others who might apply therefor. Certain individuals, who
might otherwise be available for the training, would not be able to be
included because of the extended duration. This change in the Plan from
a few months to a year could conceivably affect many who would otherwise
enroll thereunder. While Respondent claims it satisfied its obligation
as to this change by notifying the Union thereof, I am constrained to
conclude otherwise. It is true that where adequate notice of a change
is given by management, the labor organization is required to request
negotiations in order to give rise to an obligation on the part of the
agency to bargain. See Internal Revenue Service (IRS) and Brooklyn
District Office, IRS, 2 FLRA No. 76 (1980). However, I am satisfied
that after it received the notification from Respondent herein dated
March 4, 1982 of the proposed one year reassignment, the Union fulfilled
its obligation in that regard. Thus, in its reply letter of March 19,
1982 the Union stated "This Council demands to bargain regarding the
substance, impact and implementation of your proposal." /11/ Such
demand, encompassing the proposed extension of the Reassignment Plan
from a summer period to one year, is sufficient to oblige the Respondent
to bargain thereof. cf. U.S. Department of Air Force, et al., Hanscom
AFB, Massachusetts, 5 FLRA No. 88 (1981).
In respect to the coverage of the IRP, the undersigned does not agree
that the utilization of the plan for all GS-5 positions and above
constitutes no change in past practice on the part of Respondent.
Although it is true that neither SIRP or IRP bespeaks of particular
classes of employees who are covered thereunder, the practice for
several years limited the applicability of the plan to Immigration
Inspectors. This is reflected in Mosbacher's letter of March 4, 1982 to
the Union Vice-President, Charles Murphy. The management official
stated therein as follows:
"In the past only Immigration Inspectors have been utilized.
However, depending on district needs, we would utilize this plan
for positions GS-5 and above."
Moreover, record facts indicate that no employee except an Immigration
Inspector was reassigned under SIRP since 1979.
While it may be argued that a contractual agreement (SIRP in this
instance) should be determinative as to the coverage herein, a past
practice between the parties may be controlling. This may follow where
conditions of employment are not specifically covered in an agreement or
regardless of the contractual agreement. In such an instance, the
parties establish terms and conditions of employment by practice, which
cannot be altered unilaterally except after good faith bargaining and a
resultant impasse. Internal Revenue Service, Brookhaven Service Center,
6 FLRA No. 127 (1981).
Turning to the case at bar, I am satisfied that the parties herein
established a practice whereby only Immigration Inspectors were
encompassed by the SIRP. Accordingly, a term and condition of
employment has been established in regard to the reassignment plan which
limited its coverage to that classification of employees. Moreover, the
practice existed for a three year period, which I deem a sufficient
length of time to ripen into an established term or condition of
employment. That it was changed, or intended to be altered, is evident
from Mosbacher's letter of March 4, 1982 to Murphy, and subsequent
communications from the Union reveal that the latter desired to bargain
with respect thereto.
(2) Respondent argues that it has met its responsibility under the
Statute in respect to its obligation to negotiate with the Union. It
maintains that the duty to bargain was limited to the extension of the
time coverage for the Program; that it notified the Union thereof and
satisfied any obligation in this regard; and that no substantial impact
existed in any event. Moreover, it adverts to the written
communications between the parties as reflective of "meaningful
negotiations in this matter".
It is clear that, under Section 7106 of the Statute, management has
been vested with the right to assign work to employees in its
discretion. Thus, it cannot be disputed herein that Respondent may
institute its Reassignment Program to cover the districts' employees.
Nevertheless, upon the institution of its later Program in 1982, which
effected changes as to time period and coverage, I conclude that the
employer was required to fulfill certain obligations imposed by the
Statute. Thus, under Section 7106(b)(2) and (3) it was obliged to
negotiate procedures to be observed by management in re the IRP, as well
as appropriate arrangements for employees adversely affected thereby.
/12/
Respondent herein takes the position that no significant impact
resulted from the institution of the IRP. I disagree. The Union may
well be concerned as to the nature of the duty to which an employee is
assigned, i.e. hazardous. Since it was contemplated by management that,
in addition to Immigration Inspectors, other employees would be subject
to reassignments, the broadened utilization of IRP could impact upon
those employees in respect to the nature and safety of their tasks.
Further, in extending the applicability of the Program to all employees
at GS-5 level and above, legitimate questions may arise re the selection
of the applicants. Thus, the Union was justifiably interested, and
manifested said interest in its proposal, that employees be selected for
reassignment who have not been previously considered. See American
Federation of Government Employees, AFL-CIO, Local 331, and Veterans
Administration Hospital, Perry Point, Maryland, Case No. 0-NG-17, 2 FLRA
No. 59 (1980) involving a proposal by the Union that consideration be
given to unit employees in filling vacant positions. This is likewise
true regarding the Union's proposal that selectees in IRP complete the
Basic Officer Corps Training appropriate to the branch before entering
on duty in the program. In my opinion, the extension or applicability
of the IRP to a larger number of employees-- which I have concluded was
embraced within the 1982 Plan as a change in past practice-- involves
possible impact upon such employees. They may well be adversely
affected, and thus Respondent is required to negotiate both as to the
procedures to be observed in implementing the program as well as
appropriate arrangements for those adversely affected. See Department
of Treasury, Internal Revenue Service, Jacksonville District, 3 FLRA No.
103 (1980).
In sum, I conclude that the extension of IRP to a one year period, in
place of limiting it to summer months, constituted a change in past
practice. Further, that extending applicability to all GS-5 employees
and above, rather than confining it to Immigration Inspectors, was
likewise such a change. Both of these extensions, in my opinion, were
significant and impacted upon employees in the district sufficiently to
warrant bargaining as to procedures and arrangements for employees
adversely affected. I reject the contention that, as to the yearly
period, Respondent had fulfilled its obligation to bargain; in respect
to the coverage of IRP, I am satisfied that it constituted a substantial
change which required the employer to bargain thereon with the Union.
Having failed to bargain as required regarding both changes in the
reassignment program, Respondent violated Sections 7116(a)(1) and (5) of
the Statute.
Having concluded that Respondent by its conduct violated Section
7116(a)(1) and (5) of the Statute, I recommend the Authority issue the
following.
ORDER /13/
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Statute, the
Authority hereby orders that the Immigration and Naturalization Service,
Eastern Regional Office (Burlington, Vermont), shall:
1. Cease and desist from:
(a) Instituting any change in the past practice of limiting
reassignments to its Immigration Inspectors for the summer period,
as under the Summer Internal Reassignment Program, and
implementing an Internal Reassignment Program for all employees
in
GS-5 positions and above, as well as extending the reassignment
period under such Program to one year, without first notifying the
National Immigration and Naturalization Council, AFGE, the
exclusive representative of unit employees, and affording it the
opportunity to negotiate, to the extent consonant with law and
regulation, concerning the procedures to be observed in
implementing its Internal Reassignment Program and the
arrangements for employees adversely affected thereby.
(b) In any like or related manner inferfering with, restraining
or coercing its employees in the exercise of rights assured by the
Federal Service Labor-Management Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Rescind the instructions or directives issued under its
Internal Reassignment Program which are not limited to Immigration
Inspectors but cover all employees in GS-5 positions and above,
and rescind all instructions or directives which extend the
reassignment period under such Program from the summer to a full
year.
(b) Notify the National Immigration and Naturalization Council,
AFGE, the exclusive representative of unit employees, of any
intention to change its past practice of limiting reassignments to
its Immigration Inspectors for the summer period, and its
intentions to implement an Internal Reassignment Program for all
employees in GS-5 positions and above for the full year, and, upon
request, negotiate in good faith, to the extent consonant with law
and regulations, with such representative concerning the
procedures to be observed in implementing its Internal
Reassignment Program and the arrangements for employees adversely
affected thereby.
(c) Post at its facility at Burlington, Vermont, 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 Regional Commissioner, and shall be
posted and maintained by him for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Regional Commissioner to insure that such
notices are not altered, defaced, or covered by any other
material.
(d) Pursuant to Section 2423.20 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, Federal Labor
Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.
WILLIAM NAIMARK
Administrative Law Judge
Dated: May 3, 1983
Washington, D.C.
APPENDIX
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
STATUTE We Hereby Notify Our Employees That:
WE WILL not institute any change in the past practice of limiting
reassignments to our Immigration Inspectors for the summer period, as
existed under the Summer Internal Reassignment Program, and implementing
an Internal Reassignment Program for all employees in GS-5 positions and
above, as well as extending the reassignment period under such Program
to one year, without first notifying the National Immigration and
Naturalization Council, AFGE, the exclusive representative of unit
employees, and affording it the opportunity to negotiate, to the extent
consonant with law and regulation, concerning the procedures to be
observed in implementing our Internal Reassignment Program and the
arrangements for employees adversely affected thereby.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL rescind the instructions or directives issued under its
Internal Reassignment Program which are not limited to Immigration
Inspectors that cover all employees in GS-5 positions and above, and
rescind all instructions or directives which extend the reassignment
period under such Program from the summer to a full year.
WE WILL Notify the National Immigration and Naturalization Council,
AFGE, the exclusive representative of unit employees, of any intention
to change our past practice of limiting reassignments to our Immigration
Inspectors for the summer period, and our intentions to implement an
Internal Reassignment Program for all employees in GS-5 positions and
above for the full year, and, upon request, negotiate in good faith, to
the extent consonant with law and regulations, with such representative
concerning the procedures to be observed in implementing our Internal
Reassignment Program and the arrangements for employees adversely
affected thereby.
(Agency or Activity)
Dated: By: (Signature)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 1,
whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts,
and whose telephone number is: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) provides:
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(.)
/2/ Section 7106(b)(2) provides:
Sec. 7106. Management rights
* * * *
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
* * * *
(2) procedures which management officials of the agency will
observe in exercising any authority under this section(.)
/3/ Section 7106(a)(2) provides in relevant part:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
* * * *
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in
the agency, or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted;
(C) with respect to filling positions, to make selections for
appointments from--
(i) among properly ranked and certified candidates fpr
promotion; or
(ii) any other appropriate source(.)
/4/ Section 7106(b)(1) provides:
Sec. 7106. Management rights
* * * *
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work(.)
/5/ Based on the record, the Respondent selects employees to fill
positions under the IRP. Thus, this program does not appear to involve
the assignment of employees to "training details," although this
language is used in several of the proposals, and it is unnecessary for
the Authority to decide whether this proposal conflicts with the right
to assign employees under section 7106(a)(2)(A) of the Statute.
/6/ Under Article 3G of the agreement Respondent recognizes its
obligation to advise the Union in writing of any changes it desires to
make re working conditions. Further, that this obligation exists at the
National, Regional and District levels.
/7/ The Border Patrol Council, which union represents a different
unit, was also present at this meeting. No immigration inspector
positions are covered in its unit.
/8/ Respondent's witness Judith Dec testified the discussion was in
general terms; that she was pretty sure there was no discussion of the
positions but it was possible there could have been. The undersigned
credits Erdheim's version thereof based on its directness and the
absence of certainty reflected in Dec's testimony.
/9/ Certain exhibits refer to Judith Dec as Judith "Henry". Since it
is the same person, and to maintain uniformity, she will be designated
as Judith Dec.
/10/ Unless otherwise indicated all dates hereinafter mentioned occur
in 1982.
/11/ As heretofore indicated, the March 4 notification to the Union
set forth other details re the IRP and its changes.
/12/ Section 7106(b)(2) authorizes negotiating procedures except to
the extent that such negotiations prevent agency management from acting
at all. See American Federation of Government Employees, Local 547,
AFL-CIO and Veterans Administration Medical Center, Tampa, Florida, Case
No. 0-NG-145, 4 FLRA No. 50 (1981).
/13/ A status quo ante remedy is sought by the General Counsel. It
is contended that the adverse impact is substantial and no significant
disruption of Respondent's operations would occur. As authorization
therefor, General Counsel cites Federal Correctional Institution, 8 FLRA
604 (1982). Upon careful consideration, I am constrained to agree that
the remedy sought would be appropriate herein. No serious disruption is
likely if the Reassignment Plan is restored to its status prior to the
implementation of the IRP. Moreover, if the Respondent extends the
latter Plan to embrace all employees in the GS-5 class and over, the
impact will be extensive and far-reaching. Bargaining in respect to the
procedures and arrangements for employees adversely affected, during the
reversion to status quo, will effectuate the policies of the Statute.