U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Petitioner/Cross- Respondent, versus FEDERAL LABOR RELATIONS AUTHORITY, Respondent/Cross- Petitioner.
U.S. DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION
FEDERAL LABOR RELATIONS AUTHORITY,
Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:
The United States Immigration and Naturalization Service seeks review of the
determination by the Federal Labor Relations Authority that it committed an
unfair labor practice. The FLRA seeks enforcement of its order. For the reasons
assigned, we grant the petition for review in part and order enforcement in
This dispute has its genesis in revisions by the INS in its policy on the use
of firearms by employees. Negotiations between the agency and the employees'
collective bargaining representatives, the National Border Patrol Council and
the National Immigration and Naturalization Service Council of the American
Federation of Government Employees AFL-CIO, concluded with several unresolved
disputes. The INS contended that six proposals advanced by the unions were
nonnegotiable because they addressed matters reserved to management's
discretion. After mediation was deemed likely to be ineffective, the unions
asked the Federal Service Impasses Panel to review the matter. Before the
Impasses Panel acted, however, the INS implemented its revisions, both those
agreed upon and those in dispute. The Impasses Panel thereafter determined that
it did not have jurisdiction because negotiability was controverted. At the
unions' request, the FLRA reviewed the negotiability of the six proposals and
determined that only Proposal 5 and portions of Proposals 1 and 2 were
negotiable. The INS sought our review of the negotiability of Proposal 5. In a
decision rendered on October 20, 1992, we ruled that Proposal 5 was not
Shortly after seeking FLRA review of the negotiability issue, the unions brought unfair labor practice charges against the INS for implementing the revisions before the Impasses Panel had ruled. On April 30, 1992, prior to our decision on the petition for review of the negotiability order, the FLRA decided that the INS had violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute.(2)
The INS timely petitioned for review and the FLRA cross-applied for
enforcement of its order.
The issue before us is whether an agency commits an unfair labor practice by implementing a change in a condition of employment when a union challenge is pending before the Impasses Panel and it is subsequently determined that the change is a nonnegotiable management prerogative. We conclude that neither the agency's refusal to submit to the jurisdiction of the Impasses Panel nor its unilateral implementation of the change is an unfair labor practice.
The Federal Service Labor-Management Relations Statute, part of the Civil Service Reform Act of 1978, was enacted in an effort to make the government function more efficiently and effectively.(3)
The legislation codifies the right of federal employees to organize and the duty of management to bargain, but tailors these rights and responsibilities "to meet the special requirements and needs of the Government."(4)
In section 7101(b) Congress directed that the statute "be interpreted in
a manner consistent with the requirement of an effective and efficient
If the parties bargain to impasse and mediation does not resolve their differences, the statute authorizes either side to invoke the services of the Federal Service Impasses Panel.(6)
The Impasses Panel is empowered to impose specific contract terms on the parties "unless [they] agree otherwise."(7)
While a matter is pending before the Impasses Panel, under FLRA rule the parties must maintain the status quo to the extent consistent with the necessary functioning of the agency.(8)
Failure to do so constitutes an unfair labor practice.
Certain matters, however, statutorily are exempted from the scope of mandatory bargaining, including, as pertinent herein, an agency's internal security practices and the assignment of work.(9)
If management contends that a change falls within an exempted area, the Impasses Panel lacks authority to proceed unless and until the negotiability issues are resolved,(10)
subject to a limited exception defined by the FLRA. We agree with the reasoning of the FLRA as expressed in Commander Carswell Air Force Base, Texas and AFGE(11)
that the purposes of the statute are best furthered by allowing the Impasses Panel to resolve those disputes involving negotiability that are controlled by existing FLRA precedents. To that we would add "and existing controlling judicial precedents."
In the case at bar, claiming nonnegotiability the INS implemented its policy revisions before the Impasses Panel declined jurisdiction. Ultimately it was determined that all of the changes, except for portions of two of the union's proposals, were nonnegotiable. The INS concedes that it committed an unfair labor practice with respect to implementation of those measures found negotiable, but otherwise it denies wrongdoing. The FLRA insists that it was an unfair labor practice to