U.S. Dept. of Justice v. Federal Labor Relations Authority, s. 82-4312

• Decision Date: 19 March 1984
• Docket Number: Nos. 82-4312,82-4317,s. 82-4312
• Citation: 727 F.2d 481
• Parties: 115 L.R.R.M. (BNA) 3499 UNITED STATES DEPARTMENT OF JUSTICE, United States Immigration and Naturalization Service, Petitioner, Cross-Respondent, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, Cross-Petitioner. INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, a Division of the National Association of Government Employees, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 481

727 F.2d 481

115 L.R.R.M. (BNA) 3499

UNITED STATES DEPARTMENT OF JUSTICE, United States

Immigration and Naturalization Service, Petitioner, Cross-Respondent, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, Cross-Petitioner.

INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, a Division of

the National Association of Government Employees, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

Nos. 82-4312, 82-4317.

United States Court of Appeals Fifth Circuit.

March 19, 1984.

William Kanter, Civ. Div., U.S. Dept. Justice, Carlene V. McIntyre, William C. Owen, Washington, D.C., for petitioner, cross-respondent.

Gordon P. Ramsey, Boston, Mass., for Intern. Bro. of Police Officers, intervenor.

Steven H. Svartz, Acting Sol., FLRA, William E. Persina, Washington, D.C., for respondent, cross-petitioner.

Mark D. Roth, Asst. Gen. Counsel, AFGE, Washington, D.C., for American Federation of Gov't Employees, intervenor.

Petitions for Review and Cross-Application for Enforcement of an Order of the Federal Labor Relations Authority.

Before RUBIN, GARWOOD and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In Case No. 82-4312, the petitioner, the United States Immigration and Naturalization Service (INS) seeks review of the decision and order of the Federal Labor Relations Authority (FLRA) which found it to have committed unfair labor practices in violation of sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Secs. 7101, et seq. (1980). In its order, the FLRA held that the INS had violated its bargaining obligation by failing to maintain, to the maximum extent possible, conditions of employment without change during an election campaign. The FLRA seeks enforcement of its order directing the INS to cease and desist from the alleged unfair labor practices. We decline to grant that enforcement.

In Case No. 82-4317, the petitioner, the International Brotherhood of Police Officers (IBPO) seeks review of the FLRA's decision and order which upheld the election objections of the American Federation of Government Employees, AFL-CIO (AFGE), and set aside the election which the IBPO had won in a national unit of approximately 2,300 Border Patrol agents. We decide we do not have jurisdiction to review the FLRA election order and dismiss the petition.

I.

The FLRA is an independent agency within the Executive Branch whose functions with respect to labor-management relations in the federal government are analogous to those of the National Labor Relations Board in the private sector. See 29 U.S.C. Sec. 151 et seq. (1976). In addition to its responsibility concerning unfair labor practices, the FLRA has responsibility for determining appropriate bargaining units and conducting representation elections. 5 U.S.C. Sec. 7105(a)(2)(A), (B) and (C). The FLRA also has the power to promulgate such rules as are necessary and appropriate for the effective administration of the statute's provisions. 5 U.S.C. Sec. 7105(a)(2)(I).

II.

The nonsupervisory employees of the INS (excluding professionals) are organized in two separate nationwide bargaining units, both represented by the AFGE. One unit, not involved in this case, consists of all INS employees except those assigned to INS Border Patrol sector offices. The other, the National Border Patrol Council, AFGE, represents all INS employees nationwide assigned to INS Border Patrol sector offices. On January 19, 1979, when representatives of the INS and the Border Patrol Council were negotiating a revised master agreement, the IBPO filed a representation petition seeking to unseat the AFGE as the unit's bargaining representative. The INS immediately ceased negotiating with AFGE. Pursuant to an Agreement for a Consent or Directed Election signed by the parties, a nationwide secret ballot election was conducted by mail during the period April 24 to June 1, 1979. IBPO received 779 of the votes cast in the election, while AFGE received 476. Following the election, AFGE filed objections to the election with the Regional Director of the FLRA's Sixth Region who found that a hearing was warranted on those objections. During the pendency of the election petition, AFGE had filed two unfair labor practice charges arising from Laredo, Texas, Case Nos. 6-CA-48 and 6-CA-49, ¹ alleging that INS had unilaterally changed certain conditions of employment without providing it with timely notice and/or an opportunity to negotiate in violation of 5 U.S.C. Sec. 7116(a)(1) and (5). ² A third charge, Case No. 63-CA-565, filed by AFGE after the election, was based on INS's unilateral changes during the campaign period in the Northern Region.

Under the parties' Master Agreement (which had expired on September 30, 1978, but was extended until January 29, 1979), the INS and AFGE were permitted to negotiate local supplemental agreements. Pursuant to such local negotiations, on August 18, 1977, local INS and AFGE representatives of the Border Patrol's Laredo sector had signed a memorandum of understanding which provided, in pertinent part that traffic checkpoints would not be reestablished during the hours of darkness or bad weather, nor reestablished during the hours of darkness if "torn down" ³ because of bad weather during the day; that such check points would not be maintained if a "backup unit" ⁴ was not available; and that agents assigned to conduct "city patrols" ⁵ would wear civilian attire rather than their uniforms. On March 16, 1979, approximately two months after the Master Agreement had expired, the chief of the Laredo Station office advised the local AFGE president that in fifteen days management intended to keep the checkpoints in operation at night, to reestablish them after dark if they were temporarily taken down during the day because of bad weather, and to assign backup units to checkpoints only as they were available. The local AFGE president was also advised that the dress (uniform or civilian) to be worn by agents carrying out "city patrols" would be determined by local management as the circumstances demanded. As noted above, after these changes were made, the AFGE filed an unfair labor practice charge, Case No. 6-CA-48, complaining that such unilateral changes violated 5 U.S.C. Sec. 7116(a)(1) and (5).

Distinct and apart from the "Laredo" unfair labor practice charge, is the charge arising from the Northern Region. On May 1, 1979, the Border Patrol's Deputy Commissioner ordered INS's Northern Region to send a number of agents on special detail to Livermore, California, by May 8, 1979. The Deputy Commissioner specifically ordered that the agents use commercial air travel to reach that temporary duty post. When agents asked to use their own private vehicles to drive to Livermore from their duty stations in the Northern Region, they were advised that they must fly commercially. After the agents were denied permission to use their own vehicles to make the Livermore trip, the AFGE filed an unfair labor practice charge, Case No. 63-CA-565, alleging that the denial was a unilateral change in working conditions and in violation of 5 U.S.C. Sec. 7116(a)(1) and (5).

Unfair labor practice complaints were issued by the FLRA in response to the "Laredo" and "Livermore" charges. Because three of the objections which AFGE had filed regarding the conduct of the election were based on the management actions which were also the subject of these complaints, hearings on the complaints were consolidated with the hearing on the objections to the election.

After a hearing, an administrative law judge found INS guilty of unfair labor practices in Cases 6-CA-48 (Laredo) and 63-CA-565 (Livermore). In Case No. 6-CA-48, the administrative law judge found that the AFGE local was given reasonable advance notice of the proposed changes to enable it to request and engage in meaningful negotiations prior to the effectuation of the decision. He found, however, that INS had violated section 7116(a)(1) and (5) of the statute because it "did not maintain the previously existing conditions to the maximum extent possible during the election period." In Case No. 63-CA-565, the administrative law judge concluded that there was a "past practice" in the Northern Region of permitting agents to use their personally owned vehicles rather than public transportation on "extended details" and that this decision therefore constituted a unilateral change of a past practice in violation of section 7116(a)(1) and (5). In finding the violation, he relied on the fact that the AFGE was not notified of the decision nor given the opportunity to bargain over its impact and implementation.

Furthermore, the administrative law judge sustained AFGE's related objections to the election, as well as independent objections including the nation-wide implementation of an "assault report form," the INS permitting IBPO to use a management bulletin board at Laredo, Texas, and the pro-IBPO statements by an instructor at the INS Border Patrol Academy. ⁶

After considering the INS and IBPO exceptions to the administrative law judge's decision, the FLRA agreed that INS had committed the unfair labor practices charged in the complaint. To remedy the unfair labor practices, the FLRA ordered INS to rescind changes in the working conditions at issue and to post a notice to employees stating that it would not violate AFGE's rights. Concerning the election objections, the FLRA adopted all but one of the administrative law judge's recommendations and found that the objectionable conduct had interfered with the employees' freedom of choice in the election. Accordingly, the FLRA set aside the first election and directed that a second election be conducted after INS had complied with the notice-posting requirement.

INS and IBPO appeal.

III.

In Case No. 6-CA-48, we are called upon to decide whether the FLRA is empowered to prevent management from exercising the rights reserved to it by 5 U.S.C. Sec. 7106...