16:0080(19)CA - INS and AFGE, National INS Council -- 1984 FLRAdec CA

 16 FLRA No. 19
 
 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-1648
 
                            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 stipulation of
 facts, accompanying exhibits, /1/ and the parties' contentions, the
 Authority finds:
 
    It is alleged the Respondent violated section 7116(a)(1) and (5) of
 the Federal Service Labor-Management Relations Statute (the Statute) /2/
 when, by letter dated October 14, 1980, 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 has been the exclusively recognized collective
 bargaining representative since on or about April 26, 1968, 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 separate 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 of the aforementioned 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 Administrative
 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 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
 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 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 negotiating for a master agreement
 which did not include the unit represented by the Border Patrol Council
 because a representation 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
 contract, 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 expired multi-unit master
 agreement which had been executed on September 30, 1976 covering both
 units.
 
    The June 13, 1979 agreement included mention of merit promotion:
 
                    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 to the INS Council president dated
 October 14, 1980, 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 the 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 October 14, 1980 letter was the last communication between the
 parties over negotiations on a merit promotion and reassignment plan for
 employees represented by the INS Council.
 
    The General Counsel takes the position that the Respondent is
 obligated under the Statute to bargain with the INS Council, the
 employees' exclusively recognized bargaining representative, over terms
 and conditions of employment including, as here, the merit promotion
 plan.  It argues that the INS Council unit is clearly a separate unit
 from that of the Border Patrol unit and, since there is no question
 concerning representation involving the INS Council unit, the Respondent
 cannot use a pending QCR over the Border Patrol unit to avoid or suspend
 its bargaining obligation in the INS Council unit.  Further, the General
 Counsel argues that an absolute status quo does not necessarily have to
 be maintained in the Border Patrol unit, but rather, that the
 Respondent's obligation to the Border Patrol unit is to "adhere to terms
 of the prior agreement to the maximum extent possible" until the QCR is
 resolved.  Thus, the General Counsel argues that, if a new merit
 promotion plan which resulted from negotiations between the Respondent
 and the INS Council were to have an effect on the Border Patrol unit,
 the Respondent's obligation would be to continue to apply the old merit
 promotion plan to the Border Patrol unit "to the maximum extent
 possible," while enabling the INS Council and the Respondent to engage
 in the full scope of negotiations within the rights of an exclusive
 representative.  The General Counsel also contends that the Respondent
 should at least have bargained with the INS Council regarding aspects
 and alternatives within the merit promotion plan which would not have
 affected employees in the Border Patrol unit.
 
    The Respondent raises two defenses in support of its refusal to
 negotiate with the INS Council in separate negotiations over the merit
 promotion plan.  It argues that since there was a QCR pending in the
 Border Patrol unit, it could not bargain separately with the INS Council
 because any change in the merit promotion plan resulting from
 negotiations with the INS Council would have changed the conditions of
 employment in the Border Patrol unit, having the potential of improperly
 changing conditions of employment in that unit during the pendency of a
 QCR.  In support of this argument, the Respondent notes that the
 promotion and reassignment policies and practices for employees
 represented by both AFGE Councils are the same and/or intertwined in the
 areas of evaluation appraisals and ratings, area of consideration,
 selection procedures, union representation on promotion panels and
 audits and overseas rotation policy.  Thus, it contends that any change
 in these areas necessarily would affect conditions of employment in the
 unit represented by the Border Patrol Council.  Second, the Respondent
 notes that the merit promotion plan historically has been a multi-unit
 agreement between it and the two AFGE Councils.  It argues that since
 negotiation of the new multi-unit merit promotion plan already had
 commenced, the INS Council failed to withdraw from the multi-unit
 bargaining arrangement in a timely manner, and therefore the Respondent
 was not obligated to return to single unit bargaining.
 
    Section 7101 of the Statute provides that "labor organizations and
 collective bargaining in the civil service are in the public interest."
 The Authority has previously determined that the level at which
 collective bargaining must take place is at the level of exclusive
 recognition.  /5/ In the Authority's view, the public interest is also
 served where, as here, an agency and two (or more) unions exclusively
 representing separate units of the agency's employees voluntarily enter
 into a multi-unit bargaining arrangement for purposes of negotiating
 over the conditions of employment affecting employees in their
 respective units.  In this way, matters of common concern can be
 addressed in a setting which allows for a more efficient use of
 resources by all parties while at the same time promoting agreement on
 conditions of employment affecting larger numbers of employees.
 
    The Authority has not previously addressed the circumstances under
 which a party to a multi-unit or multi-employer bargaining arrangement
 may withdraw from that arrangement.  In our view, such withdrawal must
 be effected in a timely manner, i.e., prior to the commencement of
 multi-unit negotiations over the conditions of employment at issue.  In
 the absence of such timely withdrawal, and after negotiations have
 commenced, the Authority concludes that withdrawal may occur only where
 there is mutual consent by the affected parties or where unusual
 circumstances exist.  In this manner, the stability of such voluntarily
 established labor-management relations is preserved while ensuring that
 each of the parties at the level of exclusive recognition retains the
 right in appropriate circumstances to require negotiations at that level
 with respect to conditions of employment affecting the bargaining unit
 employees.
 
    In the instant case, the record indicates that the Respondent, the
 INS Council and the Border Patrol Council commenced negotiations over
 the merit promotion plan in April 1978.  By mutual consent of the
 parties, negotiations were held in abeyance pending completion of master
 agreement negotiations which were also being conducted on a multi-unit
 basis.  During the latter negotiations, a QCR arose in the Border Patrol
 unit.  At that point, the Respondent ceased bargaining with the Border
 Patrol unit and continued to bargain separately with the INS Council for
 a master agreement.  Upon completion of such negotiations, the INS
 Council requested that the Respondent resume bargaining with it
 concerning the plan, which the Respondent refused to do.
 
    In the Authority's view, the Respondent's conduct herein was not
 violative of the Statute.  As previously noted, following the
 commencement of negotiations over the plan, the Respondent, the INS
 Council and the Border Patrol Council mutually agreed to table
 negotiations pending completion of negotiations for the master
 agreement.  Obviously, the parties intended to continue their multi-unit
 bargaining arrangement with respect to the plan and there is no evidence
 in the record that the INS Council sought to withdraw from the
 arrangement at any time prior to the commencement of negotiations.
 Similarly, there is no evidence that there was mutual consent as to the
 INS Council's withdrawal after negotiations had already commenced and,
 in the Authority's view, no unusual circumstances were argued or
 presented which could form the basis of a withdrawal not otherwise
 timely made.  Accordingly with respect to whether the Respondent was
 obligated to bargain separately with the INS Council under these
 circumstances, the Authority concludes that no such obligation existed.
 
    As previously noted, during the time that the parties mutually agreed
 to suspend negotiations over the plan, the QCR arose affecting the
 Border Patrol unit.  The Authority has previously addressed the
 obligation to adhere to existing conditions of employment during the
 pendency of a QCR.  In United States Department of Justice, United
 States Immigration and Naturalization Service, 9 FLRA 253 (1982), the
 Authority determined that the Respondent herein had committed several
 unfair labor practices by failing to maintain existing conditions of
 employment during the pendency of a question concerning representation
 in which the Border Patrol unit was involved.  On appeal to the Fifth
 Circuit in U.S. Dept. of Justice, Immigration and Naturalization Service
 v. FLRA, 727 F.2d 481 (5th Cir. 1984), the court, while denying
 enforcement of two of the Authority's unfair labor practice findings,
 did not reverse the Authority's general rule that during the pendency of
 a question concerning representation, agency management must maintain
 existing conditions of employment to the maximum extent possible unless
 changes are required consistent with the necessary functioning of the
 agency.  In the situation here, the merit promotion and reassignment
 plan generally constituted a negotiable matter.  /6/ Accordingly, the
 Respondent was required to maintain the plan, during the pendency of the
 question concerning representation, to the maximum extent possible.
 Inasmuch as the plan inextricably intermingled the rights of employees
 in both the INS Council unit and the Border Patrol unit with respect to
 such matters as position selection procedures, areas of consideration,
 and union representation on promotion panels and audits, the Authority
 finds that bargaining over changes in the plan with the INS Council
 would necessarily have led to changes in conditions of employment in the
 Border Patrol unit, which the Respondent was required to maintain to the
 maximum extent possible.  Under these circumstances, the Authority
 concludes that the Respondent was not obligated to negotiate with the
 INS Council and shall order that the complaint be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-1648 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/ Respondent's motion to add two exhibits to the parties'
 stipulation of facts is granted.  The General Counsel did not oppose the
 motion.
 
 
    /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, 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.
 
 
    /5/ See Department of the Air Force, Scott Air Force Base, Illinois,
 5 FLRA 9 (1981).
 
 
    /6/ See, e.g., National Federation of Federal Employees Local 1332
 and Headquarters, U.S. Army Materiel Development and Readiness Command,
 Alexandria, Virginia, 6 FLRA 361 (1981) (Union Proposals I, II, IV and
 V);  American Federation of Government Employees, AFL-CIO, Local 909 and
 Department of the Army, Headquarters, Military Traffic Management
 Command, Washington, D.C., 6 FLRA 502 (1981);  and National Treasury
 Employees Union and Internal Revenue Service, 7 FLRA 275 (1981) (Union
 Proposals 2-4), for cases where various proposals involving merit
 promotion have been found to be negotiable.