[ v24 p786 ]
24:0786(77)CA
The decision of the Authority follows:
24 FLRA No. 77
U.S. IMMIGRATION AND
NATURALIZATION SERVICE
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1917, AFL-CIO
Charging Party
Case Nos. 2-CA-1151
2-CA-20037
DECISION AND ORDER
I. Statement of the Case
These consolidated unfair labor practice cases are before the
Authority on exceptions to the attached Administrative Law Judge's
Decision filed by the Respondent. The General Counsel alleged that the
Respondent had violated section 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute (the Statute) in both cases,
and the Judge sustained those charges.
II. Background
The parties stipulated that the American Federation of Government
Employees, AFL-CIO, through its Nationsl Immigration and Naturalization
Service Council, is the exclusive representative for a nationwide unit
of U.S. Immigration and Naturalization Service (INS) personnel, and that
the parties operated under a nationwide collective bargaining agreement
during the time period in question. The parties stipulated further that
the Respondent recognized American Federaltion of Government Employees,
Local 1917, AFL-CIO (Local 1917), as the agent of the exclusive
representative and as the bargaining representative of its employees in
the New York District. Article 34 of the national agreement expressly
provided for the negotiation of supplemental local agreements to cover
matters of local concerns. The national agreement also provided a
mechanism for management to initiate interim changes in terms and
conditions of employment when required. /1/
Under the provisions of the national agreement, Local 1917 and the
Respondent's New York District Office executed local agreements
characterized as memoranda of understanding. Those memoranda concerned
the processing of applications for the adjustment of immigrant status,
training procedures, and other matters.
Several months after the memoranda of understanding were executed,
the Respondent's Acting Director of the New York District Office
notified Local 1917 that certain provisions of the memoranda of
understanding had been rendered moot by the passage of time and by
altered methods of operation, and that other provisions required changes
in order to facilitate production. The Acting District Director
indicated that the Respondent intended to replace the memoranda of
understanding with one document, and explained in some detail the
changes it wished to effectuate. The notice regarding the proposed
changes closed with a specific reference to the Respondent's alleged
right to effectuate modifications "of this agreement" in accordance with
Article 3, Section G of the national agreement. /2/ In response, Local
1917 advised management that it had no right to rescind the three
memoranda of understanding unilaterally, challenged management's
characterization of provisions of the memoranda as "moot," and suggested
that the memoranda should remain in effect or, alternatively, that the
parties begin negotiations under Article 3, Section G. The Respondent
replied with a detailed analysis of the memoranda and its position on
each provision. The Respondent contended, essentially, that some
matters contained in the previously negotiated memoranda were not
negotiable, that some provisions had been rendered moot by changed
conditions, and that some of the original provisions were acceptable
upon reconsideration. Local 1917, in turn, replied by demanding
negotiations pursuant to Article 3, Section G of the national agreement.
The parties met to begin negotiations but, when Local 1917 proposed
ground rules which contained provisions that had the effect of
precluding the Respondent from effectuating the proposed changes or
procedures until complete agreement had been reached, the Respondent
rejected the proposed ground rules and the parties reached impasse.
Local 1917 invoked the assistance of the Federal Mediation and
Conciliation Service but, despite the assistance of an assigned
mediator, the parties remained at impasse.
One week after the abortive bargaining session which resulted in
impasse over ground rules, the Respondent notified Local 1917 that it
would implement its proposed procedures to replace the three memoranda
of understanding in two weeks, and invited bargaining during that
two-week period. Local 1917 did not submit any bargaining proposals.
The Respondent then implemented its plan for changes. Subsequently,
Local 1917 formally requested assistance from the Federal Service
Impasses Panel (FSIP) concerning the impasse over ground rules, but the
FSIP declined jurisdiction on the ground that there was a threshold
question concerning management's obligation to bargain over the proposed
ground rules which had to be resolved before the FSIP would assert
jurisdiction. These circumstances led to the Union's charge in Case No.
2-CA-1151.
The original local memoranda of understanding provided, in part,that
employees would be required to perform 10 case interviews each day, and
that unit employees would not be required to perform cashier duties on
the 10th floor of the RespondentS New York District Office, which had no
bulletproof booths with silent alarm systems, before any were installed.
The Respondent's proposed changes, which led to the invocation of
bargaining entitlement under Article 3, Section G of the national
agreement, included no mention of either of these provisions. Later,
however, the Respondent unilaterally increased the number of daily case
interviews required from 10 to 15, and began to assign unit employees to
10th floor cashier duty despite the absence of a silent alarm system,
with neither prior notice to Local 1917 nor an opportunity for the
latter to request negotiations concerning procedures and appropriate
arrangements for adversely affected unit employees. These circumstances
led to the Union's charge in Case No. 2-CA-20037.
III. Case No. 2-CA-1151
A. Decision of the Administrative Law Judge
The Judge found that the Respondent had abrogated or repudiated three
previously negotiated memoranda of understanding in their entirety, and
substituted one of its own, without bargaining with the exclusive
representative as required. On the basis, he found that the Respondent
had violated section 7116(a)(1) and (5) of the Statute.
B. Positions of the Parties
In this case, the Respondent argues that the Judge erred in finding
that it failed to afford the Union advance notice and an opportunity to
negotiate with regard to proposed changes in the provisions of memoranda
of understanding discussed in general terms above. The Respondent
argues further that the Judge erroneously found the memoranda of
understanding to constitute, in effect, a complete collective bargaining
agreement which could not be changed without violating the national
agreement, and that he erred in failing to rule on the negotiability of
the terms of the memoranda and the Union's proposal.
The other parties made no submissions regarding the Judge's decision
in this case.
C. Analysis
We find that the Respondent satisfied any bargaining obligation it
may have had under the circumstances of this case before implementing
revised procedures for the New York District Office. The Respondent
first gave Local 1917 notice of its intention to revise the three
memoranda of understanding by replacing them with one document, and then
provided Local 1917 with a detailed description of the changes it
proposed to make, together with an explanation of its reasons for such
changes. Additionally, the Respondent agreed to meet and negotiate with
Local 1917, consistent with Article 3, Section G of the national
agreement, and in fact did so. /3/ When negotiations began, the Union's
only proposals would have precluded the Respondent from effectuating any
change until complete agreement had been reached. See Division of
Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA
307, 320 (1982).
The Respondent then delayed implementation of the revised provisions
for three weeks. During that time, it invited Local 1917 to submit
bargaining proposals, but the Union never did so. The Respondent also
participated in efforts by the Federal Mediation and Conciliation
Service to resolve the parties' impasse over Local 1917's ground rules
demands. Finally, consistent with its two weeks' advance notice to
Local 1917, and in the absence of either proposals from or invocation of
FSIP'S processes by Local 1917 during that period, the Respondent
implemented its revised procedures.
Assuming without deciding that the Respondent had a duty to bargain
with Local 1917, the authorized and recognized agent of the exclusive
representative at the national level concerning the negotiation of local
supplemental agreements covering employees in the New York District
Office, the Authority concludes that, under the circumstances, the
Respondent satisfied any such bargaining obligation before implementing
the revised procedures for its New York District Office. Accordingly,
the Authority cannot find that the Respondent violated section
7116(a)(1) and (5) of the Statute, as alleged by the General Counsel.
See, for example, Department of Defense, Department of the Navy, Naval
Ordance Station, Louisville, Kentucky, 17 FLRA 896 (1986), and the cases
it cites. The complaint in Case No. 2-CA-1151 must therefore be
dismissed. /4/
IV. Case No. 2-CA-20037
A. Decision of the Administrative Law Judge
In Case No. 2-CA-20037, the Judge found that the Respondent assigned
unit employees to cashier duties in an area of its New York District
Office unsecured by bullet proof booths with silent alarm systems, and
increased the number of required interviews to be performed by unit
employees each day from 10 to 15. In both instances the Respondent
acted without affording the exclusive representative notice and an
opportunity to bargain concerning procedures and appropraite
arrangements for unit employees adversely affected by these unilateral
changes to their memoranda of understanding. On that basis, he found
that the Respondent had violated section 7116(a)(1) and (5) of the
Statute in this case, too.
B. Positions of the Parties
In this case, the Respondent argues that the Judge erred in finding
that the Respondent failed to afford the Union notice of its proposed
action to terminate certain specific provisions of the memoranda
involving rights not reserved to management by section 7106(a) of the
Statute. It also argues, in the alternative, that the Judge erred in
finding that the three memoranda constituted a complete collective
bargaining agreement which could not be changed.
The other parties made no submissions regarding the Judge's decision
in this case either.
C. Analysis
The General Counsel's charge in this case relates to the Respondent's
alleged failure to give 'local 1917 notice and an opportunity to bargain
concerning the impact and implementation of its unilateral decisions to
change the number of required daily interviews from 10 to 15 and to
require cashier duty on the 10th floor despite the absence of
bulletproof booths with silent alarm systems. The Authority agrees with
the Judge's conclusion that the Respondent's unilateral changes were
violative of the Statute.
The Authority has recently reassessed and modified the standard
previously used to identify changes in conditions of employment which
require bargaining. In Department of Health and Human Services, Social
Security Administration, 24 FLRA No. 42 (1986), we said:
In order to determine whether a change in conditions of
employment requires bargaining . . ., the pertinent facts and
circumstances presented in each case will be carefully examined.
In examining the record, we will place principal emphasis on such
general areas of consideration as the nature and extent of the
effect or reasonably foreseeable effect of the change on
conditions of employment of bargaining unit employees. Equitable
considerations will also be taken into account in balancing the
various interest involved.
As to the number of employees involved, this factor will not be
a controlling consideration. It will be applied primarily to
expand rather than limit the number of situations where bargaining
will be required. For example, we may find that a change does not
require bargaining. However, a similar change involving hundreds
of employees could, in appropriate circumstances, give rise to a
bargaining obligation. The parties' bargaining history will be
subject to similar limited application. As to the size of the
bargaining unit, this factor will no longer be applied.
Applying the revised standard to this case, we find based on the
facts and circumstances that the nature and extent of the changes gave
rise to a duty to bargain. The Respondent unilaterally increased the
performance standard of bargaining unit employees by fifty percent and
assigned other unit employees to an unsecured work site, thereby
abrogating the terms of the preexisting local agreements. The duration
of these unilateral changes was permanent, and the impact on the
affected unit employees was immediate and significant. In addition, as
noted by the Judge, the employees assigned to the unsecured work site
had legitimate concerns for their safety in view of the fact that they
handled large sums of money as cashiers and several employees of the
Respondent had been robbed in the building where the unsecured work site
was located. Therefore, we find that the Respondent violated section
7116(a)(1) and (5) of the Statute, as alleged by the General Counsel and
found by the Judge in Case No. 2-CA-20037. /5/
V. Conclusion
Based on the considerations and analysis set forth above, the
Authority concludes that the record in Case No. 2-CA-1151 does not
establish that the Respondent violated section 7116(a)(1) and (5), as
alleged in the complaint. The Authority concludes further, however, in
agreement with the Judge, that the record in Case No. 2-CA-20037 does
establish that the Respondent violated section 7116(a)(1) and (5) of the
Statute.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority orders the U.S.
Immigration and Naturalization Service to do as follows:
1. Cease and desist from:
(a) Unilaterally implementing changes in the working conditions of
unit employees without first notifying the American Federation of
Government Employees, Local 1917, AFL-CIO, the designated agent of the
employees' exclusive representative, and affording it the opportunity to
negotiate concerning the changes themselves and/or the procedures and
appropriate arrangements for employees adversely affected by such
changes, as required by the Statute.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of the American Federation of Government Employees,
Local 1917, AFL-CIO, the designated agent of the employees' exclusive
representative, negotiate concerning procedures and appropriate
arrangements for employees who have been or may be adversely affected by
the unilateral changes in their performance standards and/or work
locations.
(b) Post at its New York District Office 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
Respondent's New York District Director, 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 ensure that
such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
IT IS FURTHER ORDERED that the allegations of the complaint in Case
No. 2-CA-1151 are dismissed.
Issued, Washington, D.C., December 23, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, 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 unilaterally implement changes in the working conditions
of unit employees without first notifying the American Federation of
Government Employees. Local 1917, AFL-CIO, the designated agent of the
employees' exclusive representative, and affording it the opportunity to
negotiate concerning the changes themselves and/or the procedures and
appropriate arrangements for employees adversely affected by such
changes, as required by law.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights under the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the American Federation of Government
Employees, Local 1917, AFL-CIO, the designated agent of the employees'
exclusive representative, negotiate concerning procedures and
appropriate arrangements for employees who have been or may be adversely
affected by the unilateral changes in their performance standards and/or
work locations.
. . . . . (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 II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York 10278 and whose telephone
number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case nos.: 2-CA-1151
2-CA-20037
U.S. IMMIGRATION AND NATURALIZATION
SERVICE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1917, AFL-CIO
Charging Party
Lee Mingledorff, Esq.
For the General Counsel
Sheldon Dorn
For the Charging Party
Carol D. Chasse and
William D. Tedrick, Esq.
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute (hereinafter referred to as the Statute), Chapter 71
of the Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq.
The original charge in Case No. 2-CA-1151 was filed by the American
Federation of Government Employees, Local 1917, AFL-CIO (hereinafter
referred to as the Union or the Charging Party) against the U.S.
Immigration and Naturalization Service (hereinafter referred to as
Respondent or Management) on August 6, 1981 and amended on October 23,
1981. The original charge in Case No. 2-CA-20037 was filed by the Union
against Respondent on October 15, 1981. On November 24, 1981 the
Regional Director, Federal Labor Relations Authority, issued an Order
Consolidating Cases, Complaint and Notice of Hearing with respect to
Case Nos. 2-CA-1119 and 2-CA-1151. On December 2, 1981 the Regional
Director, Region II issued an order amending said Complaint. On
December 18, 1981 Respondent filed its Answer denying the commission of
an unfair labor practice. On January 19, 1982 Respondent filed an
addendum to its Answer denying the commission of a section 7116)a)(5)
violation. On January 12, 1982, the Regional Director issued an Order
Severing Case No. 2-CA-1151 based upon the parties agreement to pursue a
stipulated record in the matter. On July 28, 1982, the Regional
Director issued a Complaint and Notice of Hearing in Case No.
2-CA-20037. On August 20, 1982, Respondent filed its Answer to the July
28, 1982 Complaint, denying the commission of an unfair labor practice.
On Cotber 6, 1982, the Acting Regional Director issued an Order
Consolidating Cases with respect to Case Nos. 2-CA-1151 and 2-CA-20037.
On March 17, 1983 the Regional Director issued an Order Scheduling Cases
for Hearing.
The Complaints in this matter allege that Respondent unilaterally
changed "Walk-In One Step" procedures by assigning unit employees to
work as cashiers on the tenth floor and increased the number of case
interviews which unit employees would be required to complete each work
day without affording the Union the opportunity to negotiate concerning
the impact and implementation of the changes; and, that Respondent and
the Union negotiated and became parties to three (3) written agreements
concerning, inter alia procedures for processing certain applications in
the Travel Control Branch, which procedures are negotiable as to
consistence and negotiable within the meaning of section 7106(b)(1) and
(2) of the Statute; that Respondent unilaterally implemented changes in
procedures which were inconsistent with the negotiated procedures; and
that the changes were implemented without good faith negotiations
concerning the desire to alter the terms of the agreements.
A hearing was conducted on May 19, 1983 in New York, New York, at
which time all parties were represented and afforded full opportunity to
adduce evidence, call, examine, and cross-examine witnesses, and argue
orally. Briefs were filed by Respondent and Counsel for the General
Counsel.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following findings of fact, conclusions of law, and
recommendation:
Findings of Fact
The basic facts in this matter were stipulated by the parties. In
addition to that stipulation certain findings of fact not contained in
that stipulation were deemed necessary by the undersigned. Those
findings are included herein.
1(a). At all time material herein, the American Federation of
Government Employees, AFL-CIO, through the National Immigration and
Naturalization Service Council has been and is now the exclusive
bargaining representative for a nationwide unit of all personnel of the
Immigration and Naturalization Service excluding from coverage by the
Civil Service Reform Act.
1(b). At all times material herein, Respondent has recognized the
Charging Party as the agent of the exclusive representative and as
bargaining representative for its employees in the New York District,
Immigration and Naturalization Service.
2. At all times material herein, the parties have been operating
under a nationwide collective bargaining agreement, executed on June 13,
1979 and extending for a three (3) year period. The provisions of the
agreement have been continued in effect by the parties pending
negotiations for a new agreement.
3. The Travel Control Branch of the New York District, Immigration
and Naturalization Service was comprised, at all times material herein,
of four (4) major examination units: The I-130 unit; the I-140 unit;
the 245 unit; and the Non-Immigrant unit. The I-130 unit processed
petitions involving relatives in the US; the I-140 unit processed
petitions involving work in the US; the 245 unit processed combined
applications involving both I-130 and I-140 petitions plus an I-485
adjustment of immigrant status petition; and the Non-Immigrant unit
processed petitions for short-term stays which did not require an
adjustment of status.
4. The 245 unit combined application procedure, referred to above
involved either pre-scheduled, calendared interviews or "one-step"
applicants who were walk-ins without pre-scheduled interviews. This
"one-step" procedure was initially implemented on or about December 1,
1980. Prior to that time, only pre-scheduled interviews were handled by
the 245 unit.
On or about May 10, 1980, Charging Party and Respondent negotiated
and entered an agreement entitled "Memorandum Of Understanding" which
concerned various procedures to be used in the Travel Control Branch.
These included inter alia, certain 245 unit procedures, /6/ provisions
for temporary rotation of other employees into the 245 unit, /7/ and
cross training of employees in work done by other units. /8/
6. In or about September, 1980, the parties negotiated and entered
into an agreement entitled "Training Agreement Travel Control Branch New
York District" which covered various aspects of employee training
including the cross training noted above.
7. On or about November 5, 1980, Henry Dogin, then New York District
Director, issued a memorandum concerning implementation of the new
"one-step" procedure referred to above. On or about November 24, 1980,
the parties negotiated and entered an agreement entitled "Negotiated
Agreement on 'One-Step' Examination in New York District." This
agreement pertained to the 245 unit and the new combined "one-step"
application procedure being implemented there.
8. By letter dated June 9, 1981, Respondent's Acting Director, New
York District, John J. Gaffrey, notified the Union that it felt certain
provisions of the three (3) previously negotiated agreements, which
included: the May 10, 1980 memorandum of understanding; the one step
procedure and training were moot and other provisions needed change in
order to facilitate production in Travel Control. Respondent stated its
intent to replace the three (3) agreements and to rescind the Dogin's
letter of November 15, 1980 and replace these memoranda with one
document. Respondent enclosed its proposals for consideration. They
were, in pertinent part,as follows:
"2. All officers assigned to the Travel Control Section of the
New York District Office will be expected to participate in the
processing of combined applications on an as needed basis.
"3. Cases will be calendared and/or interviews conducted on
the basis of a four day week (Monday through Thursday). Friday
will be a non-interview and/or calendar day enabling officers to
work on back logs and pending cases.
"4. Every effort will be made to insure that Travel Control
officers who have no experience in adjudicating combined
applications be trained in the proper procedures relative to
combined processing.
"5. New duties assigned to applications clerks as a
consequence of one-step should be listed by Travel Control
supervisors and forwarded to the Regional Office for review by
classifications.
"6. Premature status report requests (prior to published
processing periods) from outside the federal government need only
be filed.
"7. A one-step, walk-in applicant will be directed from the
Information Unit on the first floor to Room 10-104 of the Ravel
Control. An application clerk will review the application, for
completeness. If not complete, the applicant will be informed of
deficiencies and told to return with all documentation. If
complete, the application will be receipted and placed in
chronological order.
"8. An immediate search of MIRAC will be made to ascertain the
existence of an "A" file. If none exists, a file will be created
through a block of "A" numbers issued to Travel Control by RAIS.
If a file exists, a check will be made of the file shelf for file
locations. If the file is in the file room, it will immediately
be charged to Travel Control. If in an operating unit, a search
for the file will commence immediately by the designated
"One-Step" file clerk. If the file is in another Service office,
a request for the file transfer will be made via MIRAC. The
interview will proceed through the creation of a work folder. If
the file is in the Federal Records Center, the interview will
proceed through the creation of a work folder. In all cases where
the file is not readily available (FRC, other Service office, etc)
a MIRAC print out with pertinent biographical data will be
included in the work folder.
"9. Applicants will be referred to the third floor for
acceptance of fees until a secure area for acceptance of fees is
provided on the tenth floor.
"10. It is understood by the parties that the provisions of
this agreement may be modified by Management in accordance witt
(sic) Article 3, Section G /9/ of the National Agreement."
9. By correspondence dated June 17, 1981, the Union responded as
follows:
"IF YOU WISH TO MEET INFORMALLY TO INFORM US OF YOUR
REASONS
FOR REQUESTING THESE CHANGES BE ADVISED THAT I WILL
ACCOMMODATE
ANY GOOD FAITH ATTEMPT AT RESOLVING OUR DIFFERENCES.
"IN THE MEANTIME BE ADVISED THAT YOU DO NOT HAVE THE
AUTHORITY
TO UNILATERALLY RESCIND ANY MEMORANDUM OF UNDERSTANDING
REACHED
WITH THIS LOCAL AND UNTIL SUCH TIME AS THESE MEMORANDA ARE
CHANGED
THROUGH GOOD FAITH NEGOTIATIONS, THEY WILL REMAIN IN EFFECT.
"IT IS NOTED THAT YOU REFER TO MANY OF THE PROVISIONS
CONTAINED
IN THE REFERENCED THREE MEMORANDA OF UNDERSTANDING as
"MOOT". MY
DEFINITION of "MOOT" IS A SITUATION THAT IS NO LONGER APPLICABLE
AND I HAVE SEARCHED THE THREE DOCUMENTS IN VAIN FOR
PROVISIONS
THAT ARE "MOOT." IT WOULD BE HELPFUL IF YOU COULD SPECIFY THE
PROVISIONS YOU ARE REFERRING TO SO THAT YOUR CLAIM COULD BE
EXAMINED.
"IN REVIEWING THE THREE DOCUMENT I FIND THAT THEY ARE AS
WELL
SUITED TO THE NEEDS OF OUR EMPLOYEES IN TRAVEL CONTROL AS
THEY
WERE ON THE DAY THEY WERE ADOPTED. THERE IS NO INDICATION IN
YOUR
LETTER OF ANY CHANGE THAT WOULD NECESSITATE REVIEW OF
THESE
MEMORANDA BUT I AM NONETHELESS PREPARED TO LISTEN TO YOUR
REASONS
FOR REMOVING ITEMS AND CHANGING OTHERS.
"IN THE ABSENCE FN ANY JUSTIFICATION FOR THE DRASTIC
CHANGES
YOU SUGGEST I PROPOSE THAT THE THREE MEMORANDA OF
UNDERSTANDING
REMAIN IN FORCE AS THEY MORE ADEQUATELY ADDRESS THE NEEDS
OF
EMPLOYEES IN TRAVEL CONTROL THAN DOES YOUR NEW PROPOSAL.
"IF THIS IS UNACCEPTABLE TO YOU I SUGGEST THAT WE COMMENCE
NEGOTIATIONS WITHIN FIVE DAYS AS PER ARTICLE 3(G). . ."
10. In a subsequent, undated correspondence, Respondent specifically
stated its position with respect to each item contained in the three (3)
prior agreements. It denoted which items Respondent agreed to retain,
which it felt were not moot, and which it felt were non-negotiable as
either managements rights under Section 7106(a) of the Statute or
permissive subjects of bargaining under Section 7106(b)(1) of the
Statute. The correspondence included new management proposals to
replace the provisions contained in the prior agreements. It reads as
follows:
"Item One (1) from the Memorandum of Understanding transmitted
by Nathan Cohen on May 10, 1980, remains unchanged and was item
one (1) on the proposals of June 9, 1981.
"Item Two (2) from the Memorandum of Understanding transmitted
by Nathan Cohen on May 10, 1980, is moot. Under the one-step
program, Travel Control Officers are presented with an application
before the file is necessarily completed and organized. Agreement
on this item would make it virtually impossible to refer an
applicant for interview in Travel Control when an "A" file on the
alien is not readily available. Therefore, this interferes with
Management's ability to assign work and is non-negotiable pursuant
to 5 USC 7106(a)-(2)-(B). Finally this item conflicts with item
two (2) of District Director Dolgin's memorandum of November 5,
1980, agreed to by you in item one (1) of the November 24, 1980,
Memorandum of Understanding, and which is now item eight (8) of
the proposals submitted on June 9, 1981.
"Item three (3) of the May 10, 1980, Memorandum of
Understanding was incorporated into the June 9th proposals as item
six (6).
"Item four (4) of the May 10, 1980, Memorandum of Understanding
has been deleted altogether and, in my view is moot. This item
was agreed to when cases were being calendared on the basis of
1000/month. Cases are no longer being calendared at this rate and
by fall, it is anticipated that the calendar will be done away
with altogether. In the meantime, Travel Control officers will be
expected to process walk-in applicants under the one-step program.
As such, the Service will not know from one day to the next how
many applicants will appear for interviews and cannot schedule
interviews in advance. In any event, this item interferes with
Management's right to assign work.
"Item five (5) of the May 10, 1980 Memorandum of Understanding
is essentially the same as 'item three (3) of the June 9, 1981
proposals. In the fall, all reference to calendars will be
deleted as moot.
"Item six (6), the first sentence of the May 10, 1980
Memorandum of Understanding has proven to limit Management in
assigning sufficient Travel Control personnel to do the work of
that unit. This item, therefore, is non-negotiable pursuant to 5
USC 7106(a)(1), 2(A) and 5 USC 7106(b)(1). In order that
Management's rights not be restricted is this regard, item two (2)
of the June 9, 1981 proposals is intended to replace this item to
gain the desired flexibility for Management. I have reconsidered
my position with respect to the second and third sentences of item
six (6) of the May 10, 1980 Memorandum of Understanding and agree
with your position that they are still applicable. Therefore,
item two (2) of the proposals of June 9, 1981, is amended as
follows:
"'All officers assigned to the Travel Control Section of the
New York District office will be expected to participate in the
processing of combined applications. To the extent possible,
designation of officers will be made on the effected morning and
the chosen officer(s) assigned for the duration of the day.
Consistent with the needs of the Service, rotation of officers to
adjudicate combined applications will be equitable.'
"I have reconsidered my position with respect to item seven (7)
of the May 10, 1980 Memorandum of Understanding and agree with you
that it still has application to the New York District Travel
Control Section. Therefore, item seven (7) of the May 10
Memorandum of Understanding will be incorporated into my June 9,
1981 proposals.
"I have also reconsidered my position with respect to item
eight (8) of the May 10, 1980 Memorandum of Understanding and
agree with (sic) you that it still has application. Therefore, it
will be incorporated into the June 9, 1981, proposals.
"The first and second sentences of item nine (9) of the May 10,
1981 (sic) Memorandum of Understanding have been accomplished and
are, therefore, moot. The specific training proposals which were
agreed to by the parties will be addressed later in this letter.
The third sentence of item nine (9) restricts Management's ability
to assign work and personnel and limits Management's ability to
determine the number of employees assigned to a particular unit.
Therefore, this sentence is non-negotiable pursuant to 5 USC
(a)(2)(A) and (B) as well as 5 USC 7106(b)(1). In addition, I
have reconsidered my position with respect to the last sentence of
item nine (9) and agree with you that it still has application. I
will, therefore, incorporate it into the June 9, 1981 proposals.
"Item ten (10) of the May 10, 1980, Memorandum of Understanding
limits Management's ability to determine which personnel will do
which types of work. . . .
"With respect to the last two (2) paragraphs of the May 10,
1980 Memorandum of Understanding, the agency's position with
respect to unit structure was sustained by the Federal Labor
Relations Authority, and, the last paragraph was included in the
June 9, 1981 proposals as item ten (10).
"Item one (1) and two (2) of District Director Dogin's
memorandum of November 5, 1980, were incorporated into the June 9,
1981 proposals as items seven (7) and eight (8).
"Item three (3) of Dogin's memorandum of November 5, 1980 was
incorporated as item nine (9) of the June 9, 1981 proposals with
the exception of the date because, to date, the required secure
area has not yet been provided on the tenth floor.
"Item four (4) of District Director Dogin's memorandum of
November 5, 1980, has been accomplished and is, therefore, moot.
"Item five (5) of District Director Dogin's memorandum of
November 5, 1980, is essentially the same as item four (4) of the
May 10, 1980 Memorandum of Understanding and would interfere with
Management's ability to assign work and direct personnel. This
item is, therefore, non-negotiable pursuant to 5 USC 7106(a)(2)
(S) and (B).
"Item six (6) of Mr. Dogin's November 5, 1980 memorandum limits
Management's discretion with respect to directing employees,
assigning work, and determining the number of employees assigned
to a work unit. This item is, therefore, non-negotiable pursuant
to 5 USC 7106(a)(2)(A) and (B) as well as 5 USC 7106(b)(1).
"Item seven (7) of Mr. Dogin's November 5, 1980 memorandum was
incorporated into the June 9, 1981 proposals as item three (3).
"Item one (1)(a) of the one-step agreement carrying a typed
date of November 24, 1980, was included as item nine (9) of the
June 9, 1981 proposals. Where a secure area will be provided,
whether it be composed of bullet-proof glass and include a silent
alarm to the Federal Protective Service, is concerned with the
budget of the Agency and its internal security practices. Such
determinations are to be made by Management and are, therefore,
non-negotiable pursuant to 5 USC 7106(a)(1).
"Item one (1)(b) of the November 24, 1980 agreement was
incorporated into the June 9, 1981 proposals as items five (5)
slightly changed. First-line supervisors must certify in writing
to the Regional Personnel Office, any new duties to be included in
position descriptions. The District Director cannot initiate a
request for inclusion of the new duties in position descriptions
without the written certification by first-line supervision. In
addition, once the supervisory certification has been initiated,
they will be forwarded through channels to the Regional
Classification Section.
"Item one (1)(c) of the November 24, 1980 agreement conflicts
with . . . the national agreement.
"Item one (1)(d) of the November 24, 1980 agreement, restricts
Management's ability to assign work and to direct personnel. This
item is, therefore, non-negotiable pursuant to 5 USC 7106(a)(2)(A)
and (B).
"Item one (1)(3) has been accomplished and is, therefore, moot.
"I have reconsidered my position with respect to item one
(1)(f) and item one (1)(g) of the November 24, 1980 agreement and
with additional clarification, agree that they still have
application. Therefore, the following will be incorporated into
the June 9, 1981 proposals.
"'In the event fraud is suspected, an Immigration Examiner may,
with the approval of Travel Control Supervisor, limit combined
processing applications to an immediate 245 interview and,
consistent with II Handbook guidelines and related criteria, refer
the I-130 or I-140 portion of the application with the file to the
I-130 or I-140 Unit for further processing and the scheduling of
an interview for determination of fraud.
"'Consistent with the availability of Investigators, and
Immigration Examiner may, with the approval of a Travel Control
Supervisor, transfer a file to Investigations for a marriage fraud
or employment fraud investigation. The 245 portion of the
interview is to be completed but no formal I-130 or I-140
interview need be conducted. Such referrals shall be consistent
with II Handbook guidelines and related criteria.'
"With respect to item one (1)(h), each provision of the
training agreement will be addressed separately later in this
letter. However, the statement that 'a 10-hour course in 245
examinations shall suffice to permit assignment of non-245
Examiners on a standby basis for "one-step" examinations'
restricts Management's ability to assign personnel and work and
is, therefore, non-negotiable pursuant to 5 USC 7106 (2)(A) and
(B).
"Item one (1)(i) of the November 24, 1980 agreement has been
incorporated into the June 9, 1981 at item two (2).
"Item one (1)(j) is moot. However, I agree that the following
language would still apply:
"'This Memorandum of Understanding is not intended to abolish,
solely because of exclusion here from, any practices which have
been mutually acceptable in the New York District Travel Control
Section.'
"Item one (1)(k) of the November 24, 1980 agreement interferes
with Management's right to determine the internal security
practices of the agency as well as Management's ability to assign
personnel to do certain types of work and is therefore,
non-negotiable pursuant to 5 USC 7106(a)(1) and 5 USC
7106(a)(2)(A) and (B). . . .
"Proposal one (1) of the Training Agreement conflicts
Management's position (which has been upheld by the Federal Labor
Relations Authority) with respect to unit structure. All
Immigration Examiner is not assigned to a unit, but rather
Management assigns a certain type of work from within the position
description, to the Immigration Examiner. The duties within the
position description may be called I-140, I-130 or 245 work, but
the employee is an Immigration Examiner, not an I-140 Examiner or
an I-130 Examiner. This proposal is, therefore, non-negotiable
pursuant to 5 USC 7106(a)(1) & (2)(A) &(B).
"Proposal two (2) of the training agreement is non-negotiable
for the same reasons as stated above. It restricts Management's
ability to determine the organization of the agency, and
interferes with Management's ability to assign work and personnel.
"The first sentence of proposal three (3) and the first
sentence of proposal four (4) of the training agreement will be
incorporated into the June 9, 1981 proposals by adding the
following to item four (4):
"'Cross training will be an ongoing effort. Training will be
equitably distributed and based on need.'
"The remaining sentences of proposals three (3) and four (4) of
the training agreement are non-negotiable as they restrict
Management's ability to determine what training will be given and
to whom (assignment of work and personnel), as well as the type of
work an employee is assigned while in a "training program".
Proposal five (5) purports to establish training positions and is
determinative of the type of work the training positions will be
assigned. Therefore, these matters are all non-negotiable
pursuant to 5 USC 7106(a)(2)(A) & (B) and 5 USC 7106(b)(1).
"Proposal number six (6) interferes with Management's right to
assign work and personnel and is non-negotiable pursuant to 5 USC
7106(a)(2)(A) & (B).
"I have reconsidered my position with respect to proposals
seven (7), proposal ten (10) (which follows proposal seven (7),
proposal nine (9) and proposal ten (10), and will incorporate them
into the June 9, 1981, proposals as follows:
"'To the extent possible, Immigration Examiners will be
furnished a complete and current set of the laws, regulations and
O. I.'s, as well as all transmittal memoranda changing the laws,
regulations, O. I's and the Handbook.
"'To the extent possible, every unit will maintain a current
and complete set of BIA decisions, and will maintain subject
folders containing BIA decisions, and will maintain subject
folders containing BIA decisions and unit decisions on that
subject.
"'The New York District Office will encourage training. . . .
If an employee wishes to enroll in an outside training program,
Management will consider a request for a change in shift, if
necessary, and if consistent with the needs of the unit. To the
extent possible, the New York District will afford Immigration
Examiners the opportunity to attend the Journeyman Examiner
Course.'
"1. The Service and the Union agree that the terms of this
agreement and the changes in procedure addressed herein are not to
be construed as encouraging adjudicating officers to approve
questionsable cases or to short cut fraud investigations. The
Service and the Union agree that it is essential to maintain the
quality of adjudications and will preserve the current level of
discretion vested in Immigration Examiners.
"2. All officers assigned to the Travel Control Section of the
New York District Office will be expected to participate in the
processing of combined applications on an as needed basis. To the
extent possible, designation of officers will be made on the
effected morning and the chosen officer(s) assigned for the
duration of the day. Consistent with the needs of the Service,
rotation of officers to adjudicate combined applications will be
equitable.
"3. Except in unforeseen circumstances, the Service and the
Union agree that no officer not belonging to or specifically
assigned that day to Section 245 will be removed from him normal
range of duties to perform Section 245 work.
"4. The Service and the Union agree that an officer
adjudicating Section 245 cases may in his discretion swear in an
applicant and have him attest to the validity of his statements,
instead of reviewing each and every item on the I-485 application.
"5. In the event fraud is suspected, Immigration Examiners
may, with the approval of Travel Control Supervisor, limit
combined processing applications to an immediate 245 interview and
consistent with Ii Handbook guidelines and related criteria, refer
the I-130 or 140 portion of the application with the file to the
I-130 or I-140 Unit for further processing and the scheduling of
an interview for determination of fraud.
"6. Consistent with the availability of Investigators, an
Immigration Examiner may, with the approval of a Travel Control
Supervisor, transfer a file to Investigations for a marriage fraud
or employment fraud investigation. The 245 portion of the
interview is to be completed but no formal I-130 or I-140
interview need be conducted. Such referrals shall be consistent
with Ii Handbook guidelines and related criteria.
"7. Cases will be calendared and/or interviews conducted on
the basis of a four day week (Monday through Thursday). Friday
will be a non-interview day enabling officers to work on back logs
and pending cases.
"8. Premature status report requests (prior to published
processing periods) from outside the federal government need only
be filed.
"9. Every effort will be made to insure the Travel Control
officers who have no experience in adjudicating combined
applications be trained in the proper procedures relative to
combined processing. Where cross-training will be an on-going
effort, it is understood that Immigration Examiners will
experience in certain travel control duties shall considered
cross-trained in these types of duties. Training will be
equitably distributed and based on need.
"10. To the extent possible Immigration Examiners will be
furnished a complete and current set of the laws, regulations and
O.I.'s as well as all transmittal memoranda changing the laws,
regulations, O.I.'s and the Handbook.
"11. To the extent possible every unit will maintain a current
and complete set of BIA decisions, and will maintain subject
folders containing BIA decisions and court decisions on that
subject.
"12. The New York District Office will encourage training by
exercising diligence informing employees to the extent possible of
all available training programs, training material including
language tapes), and tuition assistance programs. If an employee
wishes to enroll in an outside training program, management will
consider a request for a change in shift, if necessary, and if
consistent with the needs of the unit.
"13. To the extent possible, the New York District will afford
Immigration Examiners the opportunity to attend the Journeyman
Examiner Course.
"14. New duties assigned to applications clerks as a
consequence of one-step should be listed by Travel Control
supervisors and forwarded to the Regional Office for review by
classification.
"15. A one-step, walk-in applicant will be directed from the
Information Unit on the first floor to Room 10-104 of Travel
Control. An application clerk will review the application for
completeness. If not complete, the applicant will be informed of
deficiencies and told to return with all documentation. If
complete, the application will be receipted and placed in
chronological order.
"16. An immediate search of MIRAC will be made to ascertain
the existence of an 'A' file. If none exists, a file will be
created through a block of 'A' numbers issued to Travel Control by
RAIS. If a file exists, a check will be made of the file shelf
for file location. If the file is in the file room, it will
immediately be charged to Travel Control. If in an operating
unit, a search for the file will commence immediately by the
designated 'One-step' file clerk. If the file is in another
Service office, a request for the file transfer will be made via
MIRAC. The interview will proceed through the creation of a work
folder. If the file is in the Federal Records center, the
interview will proceed through the creation of a work folder. In
all cases where the file is not readily available (FRC, other
Service office, etc) a MIRAC print out with pertinent biographical
data will be included in the work folder.
"17. Applicants will be referred to the third floor for
acceptance of fees until a secure area for acceptance of fees is
provided on the tenth floor.
"18. The Memorandum (sic) of Understanding is not intended to
abolish, solely because of exclusion here from, any practics (sic)
which have been mutually acceptable in the New York District
Travel Control Section."
11. By letter dated July 1, 1981 the Charging Party replied to the
above undated correspondence specifically responding to each of the 19
items proposed by Respondent in the correspondence noted above. It
accepted certain of the proposals which were left unchanged from the
previous agreements; but stated that it (sic) either did not agree, or
wished further negotiations, over others. Charging Party also invoked
its right, under Article 3, section G of the parties' contract, to
negotiate over the proposed changes. The Charging Party's letter
stated:
"This 8-page missive was literally more than we requested.
While we appreciate your reconsideration of immediate unilateral
recission of past agreements (not a good idea) as stated by the
departed Acting District Director in his letter of June 9, the
information provided in this letter is premature and irrelevant to
the issue at hand. We did not request Ms. Dec to provide us with
her opinions as to the negotiability of each issue at this time.
She and her colleagues as management's chief negotiators at prior
negotiations permitted bargaining on the subjects listed and gave
their approval to implementation of the proposed items. While
they may be declared non-negotiable at the bargaining table, they
may not be declared non-negotiable prior to renewed bargaining.
It is the published intent of the Congress of the United States
while debating approval of the Civil Service Reform Act of 1978
that all items, even those management feels should be
non-negotiable, must be discussed at the bargaining table and a
good faith effort made to resolve the items in a negotiable
context. Declaration of our proposals as non-negotiable prior to
commencement of negotiations would be a clear Unfair Labor
Practice, a unilateral change in working conditions not bargained
in good faith.
"In order to assist your preparation for bargaining I would
like to review your proposals and make suggestions for changing
them and for including new proposals.
"Your proposal 1 is an unchanged version of Item 1 of the May
10 Agreement and is acceptable
"Your proposal 2 is not acceptable. We propose substituting
Item 6 of the May 10 Agreement and Item 1 (I) of the November 24
Agreement.
"Your proposal 3 is an unchanged version of Item 7 of the May
10 Agreement and is acceptable.
"Your proposal 4 is an unchanged version of Item 8 of the May
10 Agreement and is acceptable.
"Your proposal 5 is an unchanged version of Item 1(f)of the
November 24 Agreement and is acceptable.
"Your proposal 6 is an unchanged version of Item 1(g) of the
November 24 Agreement and is acceptable.
"Your proposal 7 is a modified version of Item 5 of the May 10
Agreement and is acceptable.
"Your proposal 8 is an unchanged version of Item 3 of the May
10 Agreement and is acceptable.
"Your proposal 9 is not acceptable. We propose substituting
Proposals Two through Six of the District Training Agreement and
Item 9 of the May 10 Agreement.
"Your proposal 10 is an unchanged version of Item 7 of the
District Training Agreement and is acceptable.
"Your proposal 11 is not acceptable. We propose substituting
Proposal 8 of the District Training Agreement.
"Your proposal 12 is unchanged version of Proposal Nine of the
District Training Agreement and is acceptable.
"Your proposal 13 is a modified version of Proposal Ten of the
District Training Agreement and is acceptable.
"Your proposal 14 is a modified version of Item 1(b) of the
November 24 Agreement and is acceptable.
"Your proposals (sic) 15 appears to be acceptable but we would
want to discuss procedures for increasing efficiency at the table
and will not sign off at present.
"Your proposal 16 falls into the same category proposal 15.
"Your proposal 17 is acceptable with inclusion of Item 1(a) of
the November 24 Agreement.
"Your proposal 18 is acceptable.
"Your proposal 19 is acceptable.
"While proposal 2 of the May 10 Agreement may be too confining
from large-scale 1-stop operations, it is certainly "moot" and we
are interested in your proposals to change this section.
"Proposal 4 of the May 10 Agreement concerns the conduct of
interviews, a practice continuing with the institution of 1-step
adjudications. As the practice is not "moot" we propose the
continuation of this item.
"Item 10 of the May 10 Agreement will be moot upon compliance
with Article 9 of the May 10 Agreement.
"Item 1(c) of the Agreement continues to be valid and does not
conflict with the National Agreement as it still places the burden
for seeking a Desk Audit on the individual employee. The District
may at to expedite that request only after an individual employee
submits it.
"Item 1(d) is redundant and may be deleted as its provisions
are covered in the May 10 Agreement.
"Item 1(h) was agreed to in order to expedite 245 training at
the behest of management. If management does not want this
assistance it is withdrawn and may be considered subject entirely
to provisions of the Training Agreement which is still included in
our proposals (see above).
"Item 1(k) is satisfied pursuant to your stipulation that a
Contract Guard has been hired and will be employed for crowd
control and security purposes on the tenth floor.
"Proposal One of the Training Agreement concerns definition for
the purposes of training and is not used for the vague malignant
purposes you allege. We propose continuation of the definition.
"Considering your failure to provide agreeable solutions to all
of the issues involved, we invoke our right under contract Article
3(g) to commence negotiations within five workdays, or a
reasonable time thereafter, on your proposed change in working
conditions."
12. The parties agreed to commence negotiations on July 19, 1981.
On that date the parties met and Charging Party submitted proposals for
ground rules to cover the negotiations. The parties agreed to all items
except items 12 and 13 of the Charging Party's proposals on which an
impasse was reached. Said proposals stated as follows:
"12. The parties recognize that no change in practices and
procedures will be implemented until conclusion of an Agreement.
"13. No provisions of this Agreement will go into effect prior
to completion of negotiations."
Although the parties met with a mediator from the Federal Mediation
and Conciliation Service on July 30, the ground rules impasse could not
be resolved.
13. By letter dated August 5, 1981, Respondent, by James Jasey,
Acting District Director, notified the Charging Party that the changes
in Travel Control Branch procedures would be implemented on August 17,
1981. It stated that the Union's proposed ground rules would
indefinitely limit management's ability to take actions protected by
Section 7106 of the Statute and were, therefore, non-negotiable. The
letter again reviewed, item by item, the provisions of the three prior
agreements and denoted which provisions were being retained at which
were modified and which were not being retained. The correspondence
included the procedures which would be implemented on August 17 and
invited impact and implementation proposals prior to that date. The
Charging Party did not submit impact and implementation proposals. The
letter stated:
"Reference is made to the District Director's letter of June 9,
1981, advising you fo the District's intent to change Travel
Control procedures as addressed in (1) the Memorandum of
Understanding transmitted to the parties by Nathan Cohen on May
10, 1980, (2) District Director Dogin's memorandum of November 5,
1980, (3) the Memorandum of Understanding, and (4) the Travel
Control Branch Training Agreement. You responded to the proposed
changes by letter dated June 17, 1981, requesting additional
information with respect to the changes as well as negotiations on
the proposed changes. Thereafter, you were provided (in writing),
Management's full position on all of the items contained in the
above referenced documents, including but not limited to the
Agency's position with respect to negotiability. In addition, you
were provided nineteen (19) new proposals for consideration. By
letter dated July 1, 1981, you responded to the agency's nineteen
(19) new proposals. Because your letter of July 1, 1981,
contained some matter dealing with the impact and implementation
of Management's proposals, a date for negotiations was scheduled
for July 29, 1981. On July 29, 1981, you presented Management
with a set of proposed ground rules. The ground rules were
acceptable with the exception of the following two items:
"'The parties recognize that no change in practices and
procedures will be implemented until conclusion of an agreement.
"'No provision of this Agreement will go into effect prior to
completion of negotiations.'
"Your stated position with respect to these items was that
Management would be precluded from implementing items which it
considered to be an exercise of a reserved Management right until
a third party rendered a decision sustaining the Agency's
non-negotiability determination. We were unable to resolve our
differences before a Federal Mediator. Therefore, this is to
advise you that it is the Agency's position that the above cited
Union proposals for ground rules would indefinitely limit
Management's ability to take action protected by 5 USC 7106.
Hence, your proposals would restrict the exercise of rights
reserved to Management by law and as such, the proposals are
non-negotiable pursuant to 5 USC 7106.
"In addition, this is to advise you that implementation of all
items agreed to by the Union as well as those items which are not
negotiable will be implemented August 17, 1981. Specifically, our
position on each item is as follows:
"Memorandum of Understanding transmitted by Nathan Cohen on May 10,
1980.
"Item one (1) was agreed to by the Union and is included as
Item (1) of the attached document.
"Item two (2) interferes with Management's ability to assign
work. In addition, this item purports to determine whether files
will be used, how they will be used and is determinative of the
methods and means of performing work. This item is, therefore,
non-negotiable pursuant to 5 USC 7106 (a)(2)(3), and 5 USC
7106(b)(1).
"Item three (3) was agreed to by the Union and is included as
item two (2) of the attached document.
"Item four (4), the first sentence, restricts Management's
ability to assign work and personnel and is non-negotiable
pursuant to 5 USC 7106(a)(2)(3). The second sentence is included
as item three (3) of the attached document.
"Item five (5) was agreed to by the Union and is included as
item four (4) of the attached document.
"Item six (6), the first two (2) sentences, limit Management's
ability to assign work and personnel, and are not negotiable
pursuant to 5 USC 7106(a)(A) & (B). The third sentence requires
Management to rotate all Examiners and eliminates Management
discretion to determine which employees will do certain duties.
It is, therefore, non-negotiable pursuant to 5 USC 7106(a)(2)(A) &
(B).
"Item seven (7) places a condition on the exercise of
Management's reserved right to assign work and personnel and would
personnel and would eliminate Management's ability to assign work
under certain circumstances and is, therefore, non-negotiable
pursuant to 5 USC 7106(a)(2)(A) & (B) ability to assign work under
certain circumstances and is, therefore, non-negotiable pursuant
to 5 USC 7106 (a)(2)(A) & (B).
"Item eight (8) was accepted by the Union and is included as
item five (5) on the attached document.
"With respect to item nine (9), a training agreement was
negotiated and its provisions will be addressed herein. However,
the requirement that all Immigration Examiners complete a
cross-training program interferes with Management's reserved right
to assign work and personnel and is, therefore, non-negotiable
pursuant to 5 USC 7106 (a)(2)(A) & (B). The third sentence
restricts Management's ability to assign work and personnel and
limit Management's ability to assign work and personnel and limit
Management's ability to determine the number of employees assigned
to a particular unit, and is non-negotiable pursuant to 5 USC
7106(a)(2)(A) & (B) as well as 5 USC 7106(b)(1). The last
sentence is included as item six (6) of the attached document.
"Item ten (10) of the May 10, 1980, Memorandum of Understanding
limits Management's ability to determine which personnel will do
which types of work and interferes with Management's right to
assign work and to direct employees. It is, therefore,
non-negotiable pursuant to 5 USC 7106(a)(2)(A) & (B).
"The last paragraph was agreed to by the Union and is included
as the last item of the attached document.
"District Director Dogin's memorandum of November 5, 1980.
"With respect to items one (1) and two (2), no change was
proposed by Management. Therefore, there is no obligation to
negotiate. These items are, therefore, included on the attached
document as item seven (7).
"Item three (3) is determinative of Management's reserved right
to assign work and personnel and is non-negotiable pursuant to 5
USC 7106(a)(2)(A) & (B). In addition, matters dealing with the
security of the tenth floor cash receipt booth (sic) deal with the
internal security practices of the Agency as well as the methods
and means of performing work and are, therefore, non-negotiable
pursuant to 5 USC 7106 (a)(1) and 5 USC 7106(b)(1).
"Item four (4) has been accomplished. However, determination
with respect to the assignment of training duties deal with the
assignment of work and personnel and is a matter not subject to
negotiations pursuant to 5 USC 7106(a)(2)(A) & (B).
"Item five (5) places severe limitations on Management's
ability to assign work and to direct employees. This item is
non-negotiable pursuant to 5 USC 7106(a)(2)(A) & (B).
"Item six (6) limits Management's discretion with respect to
directing employees, assigning work, and determining the number of
employees assigned to a work unit. As such, this item is
non-negotiable pursuant to 5 USC 7106(a)(2)(A) & (B) as well as 5
USC 7106(b)(1).
"Item seven (7) has been included as item four (4) of the
attached document.
"One-step Agreement dated November 24, 1981
"Item 1(a) restricts Management's ability to assign work and
direct personnel and is non-negotiable (sic) pursuant to 5 USC
7106(a)(2)(A) & (B). In addition, it deals with the internal
security practices of the agency and is non-negotiable pursuant to
5USC 7106(a)(1).
"Item 1(b) is included as item eight (8) of the attached
document.
"Item 1(c) is included as item nine (9) of the attached
document.
"Item 1(b) places a limit of two (2) on the number of employees
the District Director may place on stand-by duty. Therefore, this
item interferes with Management's right to assign work, director
employees and is determinative of the number of employees
assigned. . . .
"Item 1(e) has been accomplished.
"Item 1(f) and 1(g) were accepted by the Union and are included
as items ten (10) and eleven (11) of the attached document.
"Item 1(h) restricts Management's ability to direct employees
and to assign work and is non-negotiable pursuant to 5 USC
7106(a)(2)(A) & (B).
"The first part of item 1(i) is included on the attached
document as item twelve (12). The second part requires Management
to assign all officers to 245 Standby duty which eliminates
Management's discretion to determine which personnel will do
certain duties and is, therefore, non-negotiable pursuant to 5 USC
7106(a)(2)(A) & (B).
"Item 1(j) was amended by Management and accepted by the Union
by letter dated July 1, 1981. The agreed upon item is included on
the attached document as item sixteen (16).
"Item 1(k) interferes with Management's right to determine the
internal security practices of the agency as well as Management's
ability to assign personnel to do certain types of work and is,
therefore, non-negotiable pursuant to 5 USC 7106(a)(1) and 5 USC
7106(a)(2)(A) & (B).
"Training Agreement, Travel Control Branch, New York District
"Proposal 1 is determinative of the organization of the Agency
and is non-negotiable pursuant to 5 USC 7106(a)(1).
"Proposal 2 is also determinative of the organization of the
Agency and would require Management to assign certain training
duties at specified times in violation of Management's right to
assign work and direct employees. This proposal is, therefore,
non-negotiable pursuant to 5 USC 7106(a)(1), and 5 USC
7106(a)(2)(A) & (B).
"Proposal 3 conflicts with Management's right to assign work by
requiring that there be a cross-training program. In addition,
the second two (2) sentences of the proposal place limitations on
Management's discretion to direct employees and assign work and
employees unless certain conditions are met with respect to
training in violation of 5 USC 7106(a)(2)(A) & (B). For these
reasons, this proposal is non-negotiable.
"Proposal four (4) places a condition on which employees will
be assigned training duties as it would require all Examiners to
be rotated if there exists a need to rotate them or not. In
addition, this proposal eliminates Management's discretion to
determine that there will or will not be a cross-training schedule
for presentation to the Union in violation of Management's right
to assign work. This proposal is non-negotiable pursuant to 5 USC
7106(a)(2)(B).
"Proposal five (5) negates Management's discretion with
response to determining the organization of the Agency in that it
purports to establish a training position as well as the type of
work assigned to a position. This proposal is, therefore,
non-negotiable pursuant to 5 USC 7106(a)(1) and 5 USC
7106(a)(2)(A). Proposal six (6) interferes with Management's
ability to assign work and personnel and is, therefore,
non-negotiable pursuant to 5 USC 7106(a)(2)(A) & (B).
"Proposal seven (7) was accepted by the Union as written in
proposal ten (10) of Acting District Director Foster's letter
which you responded to on July 1, 1981, and is included as item
thirteen (13) of the attached document.
"Proposal eight (8) would require the Agency to furnish certain
tools for the performance of work and interferes with Management's
choice of the means of performing work and is, therefore, excepted
from Management's obligation to bargain pursuant to 5 USC
7106(b)(1).
"The Agency's proposal to change proposal nine (9) was accepted
by the Union by letter dated July 1, 1981, and is included as item
fourteen (14) on the attached document.
"The Agency's proposal to change proposal ten (10) was accepted
by the Union by letter dated July 1, 1981, and is included as item
fifteen (15) on the attached document.
"In the event you would like to present any impact or
implementation matter for my consideration, please do so prior to
the August 17, 1981 implementation date.
"1. The Service and the Union agree that the terms of this
Agreement and the changes in procedure addressed herein are not to
be construed as encouraging adjudicating officers to approve
questionable cases or to short cut fraud investigations. The
Service and the Union agree that it is essential to maintain the
quality of adjudications in this office and will preserve the
current level of discretion vested in Immigration.
"2. Premature status report requests (prior to published
processing periods) from outside the Federal Goverment need only
be filed.
"3. Family groups represent one interview.
"4. Cases will be calendared for interviews conducted on the
basis of a four day week (Monday through Friday). One day will be
a non-interview day enabling officers to work on backlog and
pending cases.
"5. The Service and the Union agree that an officer
adjudicating Section 245 cases may in his discretion, swear in an
applicant and have him attest to the validity of his statements,
instead of reviewing each and every item on the 485 application.
"6. It is understood that Immigration Examiners with
experience in other Travel Control Sections shall be considered
cross-trained in those sections.
"7. A one-step applicant will be directed from the Information
Unit (first floor) to room 10-104 of Travel Control. An
application clerk (trained by Contact Representatives) will review
the application for completeness. If not complete, the applicant
will be informed of deficiencies and told to return with all
documentation. If complete, the application will be receipted and
placed in chronological order. An immediate search of MIRAC will
be made to ascertain the existence of an "A" file. If none exists
a file will be created through a block of "A" numbers issued to
Travel Control by ARIS. If a file exists, a check will be made of
the file shelf for file location. If the file is in the file
room, it will immediately be charged to Travel Control. If in an
operating unit, a search for the file will commence immediately by
the designated "One-Step" file clerk. If the file is in another
Service office, a request for the file transfer will be made via
MIRAC. If the file is in the Federal Records Center, the
interview will proceed through the creation of a work folder. In
all cases where the file is not readily available (FRC, other
Service office, etc) a MIRAC print out with pertinent biographical
data will be included in the work folder.
"8. The District will initiate a request for inclusion of
newly assigned duties and functions in the position descriptions
of Application Clerks.
"9. The District will attempt to expedite desk audits
requested by Service personnel who feel that their positions
should be upgraded due to newly assigned duties and functions
related to "One-Step".
"10. In the event fraud is suspected, Immigration Examiners
only, with the approval of Travel Control Supervisor, limit the
combined processing of an application to an immediate 245
interview and consistent with II Handbook guidelines and related
criteria, refer the I-130 or I-140 portion of the application with
the file to the I-130 or -140 Unit for further processing and the
scheduling of an interview for determination of fraud.
"11. Consistent with the availability of Investigators, an
Immigration Examiner may, with the approval of a Travel Control
Supervisor, transfer a file to Investigations for a marriage fraud
or employment fraud investigation. The 245 portion of the
interview is to be completed but no formal I-130 or I-140
interview need be conducted. Such referrals shall be consistent
with II Handbook guidelines and related criteria.
"12. Assignments to 245 Examinations are to be equitable.
"13. To the extent possible Immigration Examiners will be
furnished a complete and current set of the laws, regulations, and
O.I.'s as well as all transmittal memoranda changing the laws,
regulations, (sic) O.I.'s and the Handbook.
"14. The New York District Office will encourage training be
exercising diligence in informing employees to the extent possible
of all available training programs, training material including
language tapes, and tuition assistance programs. If an employee
wishes to enroll in an outside training program, Management will
consider a request for a change in shift. If necessary, and if
consistent with the needs of the Unit.
"15. To the extent possible, the New York District will afford
Immigration Examiners the opportunity to attend the Journeyman
Examiners Course.
"16. Except as otherwise provided in this letter, there is no
intent to abolish, solely because of exclusion (sic) here from,
any practices which have been mutually acceptable in the New York
District Travel Control Section.
"17. It is understood by the parties that these provisions may
be modified by Management in accordance with Article 3, Section G
of the National Agreement."
On or about August 17, 1981 the three prior agreements were replaced
by the procedures contained in the August 5 correspondence. On August
26, 1981, the Charging Party formally requested Federal Service Impasse
Panel (herein called FSIP) assistance with respect to the impasse over
ground rules. The FSIP subsequently declined jurisdiction over the
August 26 request for assistance. This denial was based on the fact
that there was a threshhold question concerning the Employer's
obligation to bargain over the union's ground rules proposals which had
to be resolved before the Panel would assert jurisdiction.
14. Among the provisions of the May 10, 1980 Memorandum of
Understanding (paragraph 4) referred to above was the following: "The
Service and the Union agree that the interviewing of Section 245
applicants shall be based on an average of 10 interviews per officer per
day. Family groups represent one interview." This was one of the items
declared non-negotiable. The procedures implemented on August 17, 1981
were silent with respect to any fixed number of interviews an officer
would be expected to take per day.
15. Among the provisions of the November 24, 1980 Negotiated
Agreement on "One-Step" Examinations referred to above in paragraph 20
was the following: (paragraph 1(a)) "A Cash Clerk will not be stationed
on the Tenth Floor prior to completion of a bullet proof booth with
silent alarm extension to the Federal Protective Service." This is
another of the items which was declared non-negotiable. The procedures
implemented on August 17, 1981 were silent with respect to this issued.
16. On or about October 5, 1981, Respondent servied the Charging
Party with a copy of an October 2 intra-management memorandum. The
Union responded to this memorandum on October 5, 1981. Management
responded on October 8 and 21. The Union responded to these letters on
October 14 and October 21, respectively.
In addition to the stipulation the parties introduced testimony at
the hearing. That testimony indicates that the procedures implemented
on August 17, 1981 were silent with respect to any fixed number of
interviews an officer would be expected to take per day. This figure
had not been formally increased until the October memorandum. Several
employees established through their testimony that effective November 2
management increased the number of required interviews from 10
interviews to 15. The impact of change was increased pressure on
employees to work harder and faster, resulting in stress and a lowering
of morale and the need for some employees to often work beyond their
normal duty hours in order to keep with their new daily case
requirements. Employees are also unable to work off their backlogs and
sometimes are criticized on evaluations in this respect.
With regard to the assignment of a cashier to the tenth floor, on of
the provisions of the November 24, 1980 negotiated agreement between the
Respondent and the Union was the floowing provision: "A Cash Clerk will
not be stationed on the Tenth Floor prior to the completion of a bullet
proof booth with silent alarm extension to the Federal Protective
Service." This provision was one of the items declared to be
non-negotiable by Respondent when it terminated the three negotiated
agreements in August of 1981. The new procedures Respondent implemented
on August 17 were silent with respect to this issue. The evidence
introduced at the hearing established that while a booth with bullet
proof glass was set up for the cash clerk, on the tenth floor, no silent
alarm was ever installed. No notification was given to the Union of
management's intention to assign cash clerks to the tenth floor until
the October memorandum. The need for a silent alarm and employee
concerns with regard to having to perform this duty is indicated by the
fact that Respondent's cash clerks in other locations within the same
building have been the victims of at least two armed robberies.
The parties urged that the issues presented herein are as follows:
"A) Did Respondent violate Section 7116(a)(1) and (5) of the
Statute when, on August 17, 1981, it implemented at Travel Control
Branch procedures, which did not contain some of the provisions
contained in the three previously negotiated agreements?
"B) Did Respondent violate Section 7116(a)(1) and (5) of the
Statute when, it began assigning unit employees to work as
cashiers on the Tenth Floor without installing a silent alarm
system?
"C) Did Respondent violate Section 7116(a)(1) and (5) of the
Statute when, on or about October 2, 1981, it effectively
implemented an increase in the number of case interviews unit
employees were required to conduct each work day without affording
the Charging Party an opportunity to negotiate concerning the
impact and implementation of the change?"
Conclusions
(a) 2-CA-1151
Respondent suggests that this matter is one for invocation of the
parties negotiated grievance procedure. The General Counsel presented a
prima facie case of abrogation of three (3) memoranda agreed to by the
parties, but ignores the above argument. Such previously agreed to
memoranda, even under general law, are an extension of the contract.
Further, "a collective bargaining agreement is not an ordinary contract.
'. . .(I)t is a generalized code to govern a myriad of cases which the
draftsmen cannot wholly anticipate. . . . The collective agreement
covers the whole employment relationship. It calls into being a new
common law -- the common law of a particular industry or of a particular
plant.'" John Wiley and Sons v. Livingston, 376 U.S. 543, 550 (1964).
In order to modify or change that agreement, good faith negotiations
must occur under the Statute. Contrary to Respondent's proposition,
this is not a case where the existence of the unfair labor practice
turns on the interpretation ofthe parties collective bargaining
agreement or whether or not that agreement had been breached, but
rather, it is a case where the Authority must consider whether the
Respondent's abrogation of the agreed upon memoranda, which had become
part of its collective bargaining, constituted the violation of a
statutory right.
In short, the real issue in this matter is whether Respondent gave
the Union an opportunity to negotiate concerning its proposed action to
terminate the three (3) memoranda which concerned conditions of
employment in a unit of employees it represented.
Resolution of that issue does not require the Authority to interpret
Article 3, Section G of the National Agreement. Nor does it require, as
Respondent advocates, an analysis as to whether a patent or flagrant
breach of the agreement exists. Moreover, it is not a case where the
breach of the agreement exists. Moreover, it is not a case where the
Authority would be divested of jurisdiction to decide the matter, even
if a construction of Article 3, Section G was necessary to decide
whether the Statute had been violated. Determination requires only a
finding of whether Respondent gave notice of its proposed action to
terminate the three (3) memoranda and an opportunity to negotiate. It
did not.
A bare assertion that the resolution of this matter should be made
through the grievance machinery of the parties unfortunately does not
make it so. Such a contention requires examination of the clause in
question. After such an examination, it is my belief that Respondent's
efforts to invoke the negotiated grievance machinery is wholly untenable
and must fall in view of the plain and unambiguous language of that
Article. Inasmuch as the Article manifestly does not sanction the
changing of previously agreed upon memoranda without good faith
negotiations, it is found that Respondent's action in abrogating those
agreements was a modification of the collective bargaining agreement
between the parties which gave rise, not to an arbitrable matter of
contract interpretation, but to an unfair labor practice. My
conclusion, therefore, must be that Respondent violated section
7116(a)(1) and (5) when it abrogated or repudiated the three (3)
memoranda, by substituting on August 5, 1981 one memoranda of its own
without bargaining with the exclusive representative.
Respondent acknowledges confusion as to the General Counsel's
position in this matter. Indeed there is difficulty with that analysis
which relies, it appears almost exclusively, on establishing the
negotiability of the matters terminated. A review of the proposals
asserted by the General Counsel to be negotiable demonstrates that at
least some of the proposals had been previously determined by the
Authority to be negotiable prior to the hearing in this matter, while
others were determined to be negotiable by the Authority after the
Respondent submitted its position of nonnegotiability. In any event,
case law now clearly enjoins that an assertion of nonnegotiability as
the basis for revoking a previous agreement, and actions taken in
repudiation of that agreement constitute a repudiation of the agreed
upon matter or matters in violation of section 7116(a)(1) and (5) of the
Statute, if the Authority has previously determined that essentially
identical proposals are negotiable. See Department of Treasury,
Internal Revenue Service, Memphis Service Center, 15 FLRA No. 159
(1984); see also Department of the Air Florce, U.S. Air Force Academy,
6 FLRA 548 (1981), aff'd 717 F2d 1314 (16th Cir. 1983). See also
Veterans Administration, Veterans Administration Regional Office
(Buffalo, New York), 10 FLRA 167 (1982); Great Lakes Program Service
Center, Social Security Administration, Department of Health and Human
Services, Chicago, Illinois, 9 FLRA 499 (1982), and cases cited therein.
In such circumstances, I deem it unnecessary to decide whether a
particular provision was or was not negotiable, but conlude that the
General Counsel's showing that some matters contained in the three (3)
memoranda which were declared by Respondent to be nonnegotiable had
previously been determined by the Authority to be negotiable and is
sufficient to meet its burden of proof requirements for establishing an
abrogation or repudiation of existing agreements between the parties.
Implicit in the above findtng is a rejection of Respondent's argument
that the Nation Agreement is controlling herein.
(b) 2-CA-20037
Respondent admits that it "technically" changed the November 24, 1980
agreement involving whether or not it would provide bullet proof glass
and a guard on the 10th floor for the cashier. Its defense is that the
impact of such a change was insubstantial and, in essence, unworthy of
consideration as a violation of the Statute by the Authority.
It also admits deleting certain provisions from the collective
bargaining agreement concerning calendar procedures for scheduling
interviews, but contends that this provision was inherent in its right
to assign work under section 7106(a)(2)(A) and (B) of the Statute and
thereby its right to determine the quantity of work to be performed by
employees. Assuming it had an obligation to bargain, management asserts
that the General Counsel failed to establish any adverse impact of this
change.
With respect to the former issue of management rights, it is clear
from the record that what is involved here are aspects of procedures by
which Respondent would schedule interviews and not an infringement on
its right to assign such work. In those circumstances section
7106(b)(2) /10/ cannot be ignored. It is concluded that the Union had a
statutory right to bargain over those procedures. Moreover, case law
has clearly established that an opportunity to bargain concerning impact
and implementation must be offered to the union even where management
rights are involved. Internal Revenue Service, Jacksonville District, 3
FLRA 630 (1980); Internal Revenue Service, Washington, D.C., 4 FLRA 488
(1980).
Concerning the latter issue, it is plain from the record that
cashiers handled large sums of money and several robberies had occured,
thereby, making employees apprehensive about their safety when working
the tenth floor cashier without adequate security for their safety.
Notwithstanding that Respondent sees little impact, It find that this
change had more than an insubstantial impact on employees working
conditions, thereby rejecting Respondent's argument that the matter is
de minimus. It must, therefore, be concluded that the "technical"
change without negotiations is violative of section 7116(a)(1) and (5)
of the Statute.
Accordingly, it is concluded that Respondent violated section
7116(a)(1) and (5) of the Statute by unilaterally implementing changes
in October 1981 concerning the tenth floor cashier and by implementing
an increase in the number of case interviews unit employees were
required to conduct each work day without affording the Union an
opportunity to negotiate concerning the impact and implementation of the
changes.
The Remedy
Having found that Respondent did engage in conduct violative of
section 7116(a)(1) and (5) of the Statute it is recommended that an
Order issue requiring it to cease and desist therefrom and take certain
affirmative actions designed to effectuate the policies of the Statute.
The General Counsel requests that Respondent be required to
reinstitute the negotiated agreement provisions which were unilaterally
terminated by Respondent in violation of section 7116(a)(1) and (5) of
the Statute. I agree that such agreements should be reinstated and
Respondent required to honor said agreements until such time as they are
changed or terminated through good faith negotiations.
With regard to Respondent's failure to install a silent alarm system
in the cash clerks booth and the scheduling of interviews the General
Counsel also requests a status quo ante remedy notwithstanding the fact
that only impact and implementation negotiations would be appropriate.
At the hearing, Respondent argues that any status quo ante
requirement which would require it to reduce employee management
production for any period of time, would be severely disruptive of its
operation, create a backlog of interviews and, thereby impair the
efficiency and effectiveness of the Agency's operations. Significantly,
the General Counsel did not respond directly to this argument either at
the hearing or in its brief. While I do not deem Respondent's
declaration that its operations would be disrupted by such a remedy as
evidence of such disruption. I must note the Authority's recent
decision in Department of the Treasury, Internal Revenue Service,
Jacksonville District, Jacksonville, Florida, 15 FLRA No. 187. There
the Authority found that a mere claim in a post hearing brief was
sufficient to establish that returning to old methods would cause
substantial disruption of government operations. Unlike that case, the
General Counsel here had an opportunity to establish, on the record,
that such disruption would not have been caused. If the Authority found
the statement sufficient in the IRS, Jacksonville District case, it is
plain, that here where the General Counsel had the opportunity to rebut
Respondent's claim that a status quo ante remedy would be unwarranted.
Therefore, it is concluded, that a status quo ante remedy is not
warranted in the instant matter. Accordingly, it is recommended that
the Authority adopt the following:
ORDER
Pursuant to 5 U.S.C. Section 7118(a)(7) and Section 2423.29 of the
Final Rules and Regulations of the Federal Labor Relations Authority,
U.S. Fed. Reg. 3842, 3510 (1980), it is hereby ordered that U.S.
Immigration and Naturalization Service shall:
1. Cease and desist from:
(a) Rescinding or abrogating agreements made with American
Federation of Government Employees, Local 1917, AFL-CIO, without
affording it the opportunity to bargain concerning proposed
changes.
(b) Unilaterally implementing changes in working conditions of
employees in an appropriate unit without first notifying the
American Federation of Government Employees, Local 1917, AFL-CIO,
and affording it the opportunity to negotiate, to the extent
consonant with law and regulations, concerning the impact and
implementation of such changes.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Rescind the memorandum of August 5, 1981 concerning the
abrogation of three (3) previously agreed to memoranda and
reinstate those three (3) memoranda.
(b) Upon request of the American Federation of Government
Employees, Local 1917, AFL-CIO, negotiate conerning the changes to
be implemented which would change the three (3) previously
negotiated memoranda.
(c) Upon request of the American Federation of Government
Employees, Local 1917, AFL-CIO, negotiate concerning the impact
and implementation of the new calendar procedure and the silent
alarm system on the 10th floor conerning appropriate arrangements
for employees who have been on may be adversely affected by such
changes.
(d) Post at the U.S. Immigration and Naturalization Service
facility at the New York District Office 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 District Director 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. The District Director shall
take reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(3) Pursuant to Section 2423,30 of the Final Rules and
Regulations, 45 Fed. Reg. at 3511, notify the Regional Director of
Region 2, 26 Federal Plaza, Room 24-102, New York, New York 10278,
in writing, within thirty days from the date of this Order, as to
what steps have been taken to comply herewith.
/s/ ELI NASH, JR.
Administrative Law Judge
Dated: September 24, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) ARTICLE 3 -- Union Relations at the National, Regional and
Local Levels
G. The parties recognize that from time to time during the life of
the agreement, the need will arise for management to change existing
Service regulations covering personnel policies, practices, and/or
working conditions not covered by this agreement. The Service shall
present the changes it wishes to make to existing rules, regulations,
and existing practices to the Union in writing. The Service recognizes
that this obligation exists at the National, Regional and District
levels when such changes are to be made. The Union will present its
views (which must be responsive to either the proposed change or the
impact of the proposed change) within a set time after receiving notice
from management of the proposed change. The time will be:
22 Work Days at National Level
10 Work Days at Regional Level
10 Work Days at District Level
If disagreement exists, either the Service or the Union may serve
notice on the other of its interest to enter into formal negotiations on
the subject matter. The Union will request negotiations within 5 work
days of receipt of the Service response. Such negotiations must begin
within 5 work days or receipt by the other party of a request to
negotiate. Reasonable extensions of these time limits may be granted on
request.
(2) See footnote 1 above.
(3) There is no dispute, and in the Authority's view it is
unnecessary to determine, whether the Respondent properly could have
effected the change it desired under the terms of the collective
bargaining agreement then at mid-term, since both parties held
themselves bound by Article 3, Section G of that contract.
(4) We see no merit in the Respondent's argument that the Judge erred
in finding that the memoranda of understanding constitute, in effect, a
complete collective bargaining agreement which could not be changed
without violating the national agreement. The Judge specifically
rejected the Respondent's earlier, opposite contention that he should
make such a finding. He found instead that abrogation of the memoranda
constituted the violation of a statutory right. In any event, we
disagree with the Judge and find no violation of the Statute by the
Respondent as alleged in this case.
We also see no merit in the Respondent's contention that the Judge
should have rules on the negotiability of the terms of the memoranda and
the Union's proposal. As the Judge noted, the "real issue" in this case
is whether the Respondent gave the Union notice of its proposed changes
and an opportunity to negotiate. He found that neither was given.
Since we have found, to the contrary, that the Respondent did not fail
to give notice or negotiate, it is unnecessary to make individual
negotiability determinations here.
(5) The Respondent's alternate argument, namely, that the Judge erred
in finding that the three memoranda of understanding constituted a
complete collective bargaining agreement which could not be changed,
lacks any merit in Case No. 2-CA-20037 for the same reasons as in Case
No. 2-CA-1151, discussed in footnote 4 above. Moreover, regardless of
whether the Judge made such an error in this case, we can discern no
reason to find it to be reversible error in view of our finding that the
Respondent did violate section 7116(a)(1) and (5) of the Statute by not
affording Local 1917 its notice-and-opportunity-to-negotiate rights with
respect to the two specific provisions discussed in the text above.
(6) The specific procedures the parties are referring to are not
readily apparent from the record.
(7) 6) reads, in pertinent part, as follows: ". . . no examiner who
is not permanently assigned to the Section 245 Unit will be assigned to
work in Section 245 more than one day a week. . . . All Immigration
Examiners shall be rotated equitably into the Section 245 Unit.
(8) 9) reads as follows: ". . . agree that all Immigration Examiners
shall complete a cross training program that will be negotiated within
60 days. . . ."
(9) Article 3, Section G of the National agreement reads as follows:
"The parties recognize that from time to time during the life
of the agreement, the need will arise for management to change
existing Service regulations covering personnel policies,
practices, and/or working conditions not covered by this
agreement. The Service shall present the changes it wishes to
make to existing rules, regulations, and existing practices to the
Union in writing. The Service recognizes that this obligation
exists at the national, Regional and District level when such
changes are to be made. The Union will present its views (which
must be responsive to either the proposed change or the impact of
the proposed change) within a set time after receiving notice from
management of the proposed change. . . .
"If the disagreement exists, either the service or the Union
may serve notice on the other of its interest to enter into formal
negotiations on the subject matter. The Union will request
negotiations within 5 work days of receipt of the Service
response. Such negotiations must begin within 5 work days of
receipt by the other party of a request to negotiate. . .
"Nothing in the foregoing shall require either party to
negotiate on any matter it is not obligated to negotiate under
applicable law."
(10) Section 7106(b)(2) reads as follows:
(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; . . ."
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 LABOR-MANAGEMENT
RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT abrogate or rescind agreements with American Federation
of Government Employees, Local 1917, AFL-CIO, without affording it the
opportunity to bargain concerning proposed changes in those agreements.
WE WILL NOT unilaterally implement changes in working conditions
without first notifying the American Federation of Government Employees,
Local 1917, AFL-CIO, and affording it the opportunity to negotiate, to
the extent consonant with law and regulations, concerning the impact and
implementation of such changes.
WE WILL rescind the memorandum of August 5, 1981, concerning the
abrogation of three (3) previously agreed to memoranda and reinstate
those three (3) memoranda.
WE WILL upon request, negotiate with the American Federation of
Government Employees, Local 1917, AFL-CIO, concerning the impact and
implementation of the new calendar procedure and the alarm system on the
tenth floor concerning appropriate arrangements for employees who have
been and may be adversely affected by such changes.
WE WILL upon request of the American Federation of Government
Employeess, Local 1917, AFL-CIO, negotiated concerning the changes to be
implemented in the three (3) previously negotiated memoranda.
. . . . . . (Agency or activity)
Dated; . . . . . .
By: . . . . . . (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must be altered, defaced or coverd 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 2,
whose address is: 26 Federal Plaza, Room 24-102, New York, New York
10278 and whose telephone number number is: (212) 264-4934.