U.S. Department of Justice, Immigration & Naturalization Service v. Federal Labor Relations Authority , 995 F.2d 46 ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4652
U.S. DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION
SERVICE,
Petitioner/Cross-
Respondent,
versus
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent/Cross-
Petitioner.
Petition for Review and Cross-Application for Enforcement
of an Order of the Federal Labor Relations Authority
(June 25, 1993)
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 part.
Background
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 negotiable.1
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.
1
Dept. of Justice, INS v. FLRA, 975 F.2d 218 (5th Cir.
1992).
2
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.
Analysis
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
2
5 U.S.C. §§ 7101 et seq.
3
S.Rep. No. 95-969, 95th Cong., 2d Sess. 4, reprinted in
1978 U.S.C.C.A.N. 2723, 2726.
3
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 Government."5
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
4
5 U.S.C. § 7101(b).
5
See also Dept. of Justice, INS v. FLRA, 991 F.2d 285 (5th
Cir. 1993).
6
5 U.S.C. § 7119(b)(1).
7
5 U.S.C. § 7119(c)(5)(C); see also American Federation of
Government Employees, AFL-CIO v. FLRA, 778 F.2d 850 (D.C. Cir.
1985).
8
Dept. of the Treasury, BATF and National Treasury
Employees Union, 18 F.L.R.A. (No. 61) 466 (1985); see also National
Ass'n of Government Employees v. FLRA, 893 F.2d 380 (D.C. Cir.
1990).
4
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 AFGE11
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 implement any of the
changes, negotiable or not.
Our 1984 decision in U.S. Dept. of Justice, INS v. FLRA12
9
5 U.S.C. § 7106(a)(1), (2)(B).
10
American Federation of Gov't Employees, supra.
11
31 F.L.R.A. (No. 37) 620 (1988).
12
727 F.2d 481 (5th Cir. 1984).
5
persuades that the position taken herein by the FLRA is untenable.
In the cited case, the INS implemented changes in employment
conditions while a representation election was pending.
Determining that the changes involved areas reserved to
management's discretion, we held that the INS had not committed an
unfair labor practice because the FLRA was not authorized to
suspend management rights. We therein stated:
Congress provided specifically in 5 U.S.C. § 7106 that
"nothing in this chapter shall affect the authority of
any management official of any agency" to exercise the
rights reserved to management by that section. . . . By
using the word "nothing" . . ., Congress clearly
expressed its intent with regard to management's exercise
of the rights which had been reserved to it. The use of
such words makes it obvious that Congress did not intend
to let the Authority decide whether, in its judgment, it
was "necessary" for the INS to [make the desired changes]
during the pendency of the election. . . . Construing
the statute to allow the Authority to promulgate a rule
which would bar management from exercising its reserved
rights during the pendency of a representation question
would hardly lead to an INS which was as effective and
efficient as possible.13
Similarly here, the position urged by the FLRA would suspend
management rights pending Impasses Panel action. Neither the
language nor spirit of the statute would so permit.14 Whereas
unilateral implementation during Impasses Panel proceedings of a
change that is determined to be negotiable might be an unfair labor
practice, we hold that unilateral implementation of a change
13
727 F.2d at 488.
14
We therefore do not accord the deference normally owed to
the interpretation of the agency charged with implementing the
statute. See U.S. Dept. of Justice, INS, 975 F.2d at 225.
6
determined to be nonnegotiable is not.15
The petition for review is GRANTED with respect to Proposal 5.
Conversely, the cross-application for enforcement is DENIED with
respect to Proposal 5 but is GRANTED with respect to the negotiable
parts of Proposals 1 and 2.
15
See also American Federation of Gov't Employees, 778 F.2d
at 857 ("although the Labor-Management Act makes it an unfair labor
practice to 'fail or refuse to cooperate in impasse procedures and
impasse decisions . . .,' § 7116(b)(6), an agency is not guilty of
an unfair labor practice if the FLRA or a reviewing court later
determines that the issue was nonnegotiable"); Dept. of Treasury,
BATF, supra (agency did not commit an unfair labor practice in
implementing an Order while Impasses Panel proceedings were pending
because the Order was not subject to the duty to bargain).
7