Immigration and Naturalization Service and National Immigration and Naturalization Service Council, American Federation of Government Employees (Authority decision, August 31, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Immigration and Naturalization Service introduced a one stop airport inspection process that combined checks formerly done separately by INS, Customs, and Agriculture officers. The National INS Council alleged that the agency improperly refused national level bargaining before the process began at Atlanta and Houston airports. On the stipulated record, the Authority found that the union had advance notice and earlier national level opportunities to discuss and negotiate implementation but had not used them. It held that suggesting local talks for those airports did not constitute a refusal to bargain and dismissed the complaint.

Decision snapshot

• Authority: Duty to bargain under 5 U.S.C. § 7116(a)(1) and (5).
• Outcome: Complaint dismissed; no unlawful refusal to bargain found.
• Key point: The union had earlier national level opportunities to address the change before its later local implementation.

Full text (FLRA public release)

[ v15 p918 ]

15:0918(173)NG

The decision of the Authority follows:

15 FLRA No. 173

IMMIGRATION AND NATURALIZATION
SERVICE
Respondent

and

NATIONAL IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
Charging Party

Case No. 3-CA-1839

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record in this case, including the stipulation of facts and accompanying exhibits, and the parties' contentions, the Authority finds:

The Respondent, Immigration and Naturalization Service (INS), is responsible, inter alia, for ensuring that passengers entering the United States at airports are in compliance with certain immigration laws. The function is performed by the Respondent's officers through inspection of passengers and their documents at points of entry at the airports. Similar inspections are conducted at the airports and other entry locations, regarding baggage, packages and cargo, by the Customs Service and the Department of Agriculture.

Regarding past practices under which passengers would be subject to separate inspection procedures by officers of all three agencies, it was decided that it might be feasible to train individual officers in all of the inspection requirements and procedures so that one officer could perform the necessary inspection functions for all three agencies. The objective, aside from ensuring that the necessary inspections were performed, was to expedite the entry process.

In 1978, the Respondent conducted certain experiments with these procedures at Dulles International Airport, Washington, D.C. and certain other airports. The National Immigration and Naturalization Service Council, American Federation of Government Employees (the Union), was notified. The Union is constituted as a Council of local affiliates representing the Respondent's employees at various locations throughout the United States and it has represented these employees in a nationwide unit of exclusive recognition since 1968. At the Union's request, the parties engaged in consultations and discussions regarding these experimental changes in practice and the likely effects on employees, but there was no bargaining.

Based on the experiments, which continued, and following discussions by the Respondent with the Customs Service and the Department of Agriculture, it was decided in 1978 that the new inspection procedures, called "one stop," should be implemented at all airports. Shortly thereafter, the Union was advised of this decision and of the need for training INS officers. An agreement was completed by INS, Customs, and Agriculture for the implementation of "one stop," and the Respondent provided a copy to the Union. The changes were discussed by INS and the Union at a regularly scheduled national consultation meeting. Following this meeting, the matter was discussed by the Union President and the Commissioner of INS. The Union was offered the opportunity to meet with the Respondent's labor relations personnel at the national level to discuss its concern regarding the implementation of the new procedures.

During these discussions, the Union expressed its views regarding the rights of passengers entering the country and the need to ensure that the appropriate inspections were performed. It disagreed with the decision to implement the new procedures and it expressed concerns about the impact on the Respondent's employees. However, it did not meet with the Respondent's labor relations personnel and the record does not indicate that it presented proposals to the Respondent which addressed these latter concerns.

The implementation of the new procedures nationally occurred in stages. /1/ When implementation was scheduled for airports in Atlanta, Georgia and Houston, Texas as of September 20, 1980, the Union was notified. In July 1980, the Union demanded negotiations, at the national level, on the impact of the new procedures at Atlanta and Houston. The Respondent responded that such negotiations were more appropriate at the local level and that such negotiations should be undertaken with management officials at the District Office level who were responsible for operations at Atlanta and Houston. The Respondent argued that the parties had procedures in their national agreement under which matters implemented by local management officials should be negotiated by the parties at the local level, /2/ and it assured the Union that its District officials would be responsive. The Union asserted that, because the level of exclusive recognition was at the national level, it had the right to require bargaining over the implementation at Atlanta and Houston at the national level. The parties adhered to their respective positions at all times thereafter. Consequently, the implementation at Atlanta and Houston was completed without negotiations at either the local level or the national level. The complaint alleges that the respondent violated section 7116(a)(1) and (5) by failing and refusing to negotiate at the national level.

Based on the stipulated record, the Authority finds that the Union was provided with advance notice of the experiments concerning the new procedures and the decision to implement the new procedures nationally. It was presented with opportunities to negotiate the impact and implementation of the new procedures at the national level in 1978 and thereafter, well before such procedures were implemented at Atlanta and Houston in 1980. The record fails to show that the Union made any effort to utilize these opportunities at the national level. Accordingly, based on the foregoing, the Authority concludes that the Respondent's refusal to negotiate at the national level in July 1980 and its suggestion that the negotiations concerning local implementation at Atlanta and Houston of the 1978 decision to invoke the "one stop" procedure nationally should take place at the District office level, cannot be found to constitute a refusal to bargain in violation of section 7116(a)(1) and (5) of the Statute. Therefore, the complaint shall be dismissed. See General Services Administration, 15 FLRA No. 6 (1984), and cases cited therein. See also Internal Revenue Service (District, Region, National Office Unit), 14 FLRA No. 92 (1984).

ORDER

IT IS ORDERED that the complaint in Case No. 3-CA-1839 be, and it hereby is, dismissed.

Issued, Washington, D.C., August 31, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ For example, the "one stop" procedures were implemented in October 1978 at JFK Airport in New York, and at Miami, Los Angeles, Seattle-Tacoma and Honolulu; at Boston's Logan Airport in November 1978; and at other airports according to a subsequently announced schedule.

/2/ Article 3, Section G of the applicable 1979 contract provides:

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 level when such changes are 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(.)