                    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).


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