United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION   SERVICE WASHINGTON, D.C.
and NATIONAL BORDER PATROL COUNCIL AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 94 FSIP 21

DECISION AND ORDER

    The National Border Patrol Council, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor- Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Justice, Immigration and Naturalization Service, Washington, D.C. (Employer or Agency).

    After investigation of the request for assistance the Panel determined that the parties' impasse, concerning the order in which impact-and-implementation negotiations over Employer initiatives should occur, should be resolved through single written submissions from the parties, with the Panel to take whatever action it deemed appropriate to resolve the dispute. Written submissions were made pursuant to this procedure, and the Panel now has considered the entire record.

BACKGROUND

    The Employer enforces the immigration laws under authority delegated by the Attorney General. Insofar as the employees represented by the Union are concerned, the Employer's mission is to secure United States borders from, and to apprehend, illegal immigrants. The Union represents about 4,000 employees, approximately 3,500 of whom are Border Patrol Agents. The parties have been operating under an expired collective-bargaining agreement (CBA) that they entered into in 1976.

    The impasse arose shortly after the Panel, in Department of Justice, Immigration and Naturalization Service, Washington, D.C. and National Border Patrol Council, American Federation of Government Employees, AFL-CIO, Case Nos. 92 FSIP 238, 93 FSIP 12, 15, 34, and 40 (May 13, 1993), Panel Release No. 343, ordered the parties to adopt "generic groundrules" to govern their current and future negotiations over a large number of Employer-proposed initiatives (some announced as early as 1988), and the Employer attempted to negotiate over one such initiative.⁽¹⁾

ISSUES AT IMPASSE

    The parties essentially disagree over: (1) the order in which pending and future bargaining issues should be addressed, and (2) whether the Employer should rescind all policies that have been unilaterally implemented since July 30, 1993, and refrain from unilaterally implementing future policies pending the completion of negotiations concerning outstanding Union bargaining proposals.

1. Order of Negotiations

    a. The Employer's Position

    The Employer essentially proposes that the Union immediately withdraw its "inappropriate proposals" to bargain over many of the management initiatives announced since 1988 because they "either are not properly before the Panel or otherwise do not merit consideration." It also proposes the following:

The Federal Mediation and Conciliation Service (FMCS) will be asked to designate a standing mediator who will act as a facilitator/advisor with the objective of resolving any preliminary bargaining disputes and facilitating the meeting of the parties at the bargaining table on proposed program and policy initiatives of management until the parties mutually agree otherwise. The parties will split the expenses of the mediator, and each party will bear its own expenses of participating in mediation. The mediator will receive all pertinent correspondence between the parties. The mediator shall be asked to work informally on the basis of input from the parties through the use of the telephone, fax, E-mail, or face-to-face meetings if the mediator so directs.

It is understood that, under the existing groundrules, management determines the initiatives that are the priorities and will be bargained in any month. For this purpose, management may combine issues which deal with common subjects: for example, the Service can group negotiation General Arrest Authority with any of the policies to which it relates. However, every other month, after negotiations have occurred in that month over a management priority, the Union may elect to negotiate some other initiative that the parties mutually agree is pending (e.g., voluntary leave transfer) and require that the parties negotiate one extra initiative that month. For this purpose, the Union may elect to field a second team for bargaining, and the expenses of the second team shall be handled in accordance with Article 3G as supplemented by the Panel. [emphasis in original]

The Panel's attempt to "exercise control over or order bargaining concerning many of these initiatives is beyond its jurisdiction" because they involve unfair labor practice or negotiability issues. In addition, the order in which bargaining should occur is a matter encompassed by the Panel's generic groundrules decision. In this regard, when management offered to negotiate over one of the initiatives subsequent to the Panel's decision, the Union responded by arguing that they "should be negotiated one issue per month in chronological order." This "tactic" was "both a statutory violation and a contract violation." The Employer, therefore, was justified in implementing the policy over which the Union "refused to negotiate."

    It is management, and not the Panel or the Union, that is ultimately responsible for "reconciling the varying interests that must be considered in determining" the Agency's policies and programs. To retain the flexibility necessary to meet its mission requirements, "the order of bargaining on management initiatives must be largely left to management." This is particularly true because the Panel's previous decision permits the Agency to initiate bargaining "no more often than once a month." The parts of its proposal permitting management to combine negotiations on related issues, and requiring the parties to request FMCS to provide a standing mediator as an alternative dispute resolution mechanism, could be beneficial in overcoming the Union's continuing efforts to delay the implementation of its initiatives. Finally, its proposal also provides a mechanism "to bring the parties to the bargaining table on outstanding management initiatives which the Union considers to be of special interest."

    b. The Union's Position

    The Union proposes that "the party selecting the site of bargaining shall also select the issue over which bargaining will occur." In this regard, the Employer's proposal that "it alone should determine the order in which bargaining should occur" would have the obviously inequitable effect of denying the Union "the opportunity to bargain over any issues which it deems important" (emphasis in original). The Union's, on the other hand, would allow the parties an equal opportunity to bargain over the issues they believe are most important. It is also consistent with the Panel's previous decision where it rejected the Agency's argument that all bargaining sessions should be held in Washington, D.C. The reason behind that ruling was that "neither party should be able to force the other consistently to be the 'visiting team'." In its view, therefore, "the order in which pending and future bargaining should be addressed also should be controlled by the same principle of equity." Moreover, adoption of the Employer's proposal would frustrate "the intent of the earlier awarded provision" by preventing the Union from selecting a site "based upon a nexus to a particular issue and/or proximity to members of the Union's bargaining team for a particular issue." Finally, with respect to the other aspects of the Employer's proposal, they also appear to conflict with the Panel's previous Decision and Order.

CONCLUSIONS

    Having considered the arguments presented by the parties on this issue, we shall order that it be resolved on the basis of a modified version of the Employer's proposal. Preliminarily, the Panel determined to assert jurisdiction in this case after a thorough review of the facts and circumstances surrounding our previous decision. This review resulted in the conclusion that while the instant issue also concerns groundrules, it was in no manner the subject of bargaining in the consolidated cases which preceeded the issuance of the decision. Accordingly, the Panel asserted jurisdiction for the narrow purpose of resolving the parties' legitimate disagreement over how the order of issues to be bargained should be determined. It was also hoped that in receiving a speedy resolution of the matter, the parties finally could put the issue of groundrules behind them, and begin to develop a more fruitful relationship which would ultimately serve the greater good and the public interest.

    An examination of the parties' submissions, however, reveals attempts by both to expand the boundaries of the dispute, and to involve the Panel in matters which are more appropriately addressed in other available forums. On the instant issue, the Employer would have us waive the Union's right to negotiate over numerous management initiatives which are not the subject of this dispute. It also would require significant modification and supplementation of our previous groundrules decision.⁽²⁾ In this regard, while we wholeheartedly support the use of facilitators when parties mutually agree to seek such assistance, we believe that in these circumstances efforts on our part to impose their use would be counter-productive. Accordingly, we must reject those aspects of the Employer's proposal.

    Focusing on how the order-of-bargaining issues should be determined, in our view the Employer's position represents the more reasonable approach. The record shows that the various initiatives in question reflected management's best judgments at the times they were proposed for accomplishing mission requirements. Permitting the Union to alternate in the selection of the subjects to be bargained could have the unacceptable effect of delaying the implementation of matters that management believes the passage of time has made more important. While it is understandable how the Union could extrapolate from our previous decision and conclude that it should share equally in the selection of the topics to be negotiated, we are persuaded that the preservation of the Employer's flexibility is paramount. Parenthetically, we note that the Employer could achieve the same result without the need of a Panel order by rescinding the pending initiatives and reintroducing them in whatever order it deems necessary. Our adoption of its position renders such a step unnecessary. Finally, we shall also adopt wording permitting the Employer to combine issues which deal with common subjects because this should lead to greater economy of resources in the bargaining process.

2. Rescission of Previously-Implemented Policies

    a. The Employer's Position

    The following is proposed by the Employer:

If the Union believes that management has improperly implemented any matter after July 30, 1993, the parties agree that such implementation disputes are covered by the parties' negotiated grievance procedure as a question relating to Article 3G, including the supplement of 3G awarded by the Panel.

Failure of the Union to bargain during any month in accordance with the offer of management shall be considered a declination of the Union's right to bargain, under the law and the contract, on any of the initiatives that management has proposed to bargain. [emphasis in original]

Basically, the parties' disagreement regarding the implementation of management initiatives since July 30, 1993, involves "legal issues" over its obligation to bargain, or whether its actions were "proper under the contract or the law," which the Panel has no authority to decide.

    b. The Union's Position

    The Union proposes that:

The Service will rescind all policies that have been unilaterally implemented since July 30, 1993, including, but not limited to, the revised procedures for announcing and filling Border Patrol Pilot positions and the Aviation Safety program, and shall refrain from unilaterally implementing any further outstanding bargaining proposals pending the completion of negotiations concerning such proposals. [emphasis in original]

Since the parties' dispute arose over the order in which the outstanding bargaining issues should be addressed, the Employer has unilaterally implemented a number of its initiatives, taking the position that the Panel's previous decision "empowered it to select one or more bargaining issues each month, and to unilaterally implement said issues if the parties did not meet and bargain within the calendar month." By asserting jurisdiction over the instant case, however, the Panel "implicitly recognizes" that its previous decision "did not address or resolve" the matter in dispute. For this reason, "it is clear that the basis for the Agency's unilateral actions was invalid from the start." It also follows that its proposal that the Agency rescind such actions "is far more reasonable than the Agency's position, which would force the Union to await the lengthy but predictable outcome" of litigation in the unfair labor practice forum.

CONCLUSIONS

    On this issue, we shall order the parties to withdraw their proposals. On the one hand, the first sentence of the Employer's proposal is unnecessary, while the second amounts to an unwarranted waiver of the Union's bargaining rights. On the other, the Union's proposal would require us to pass judgment on the legality of previous Employer actions which is beyond the Panel's purview. For these reasons, we are persuaded that the parties should rely on the appropriate statutory and contractual mechanisms to resolve the matters raised.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

1. Order of Negotiations

    The following wording shall be incorporated into the generic groundrules previously ordered by the Panel in Case Nos. 92 FSIP 238, 93 FSIP 12, 15, 34, and 40:

The Employer shall determine unilaterally the initiative to be negotiated in any given month. It shall also be permitted to combine issues which deal with common subjects.

2. Rescission of Previously-Implemented Policies

    The parties shall withdraw their proposals.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

February 7, 1994

Washington, D.C.

 

1.As relevant to this dispute, the Panel's groundrules Decision and Order, among other things, specifies that: (1) "no more than one set of negotiations may be required to begin in any one month," and (2) "the parties shall meet in the continental United States and in Government space unless agreed otherwise. They shall meet for the first set of negotiations under this agreement in a place selected by the Service. Thereafter, the parties shall rotate in the selection of sites for each set of negotiations." In addition, the parties' CBA contains a section, Article 3G, which addresses mid-term bargaining on proposed Employer changes not covered by the agreement, but does not provide detailed groundrules. The Panel's generic groundrules decision was awarded as a supplement to Article 3G.

2.In reviewing our previous order on the number of negotiations in any one month, we note that nothing we have imposed precludes the parties from mutually agreeing to consider more than one initiative per month.