National Treasury Employees Union (Union) and Department of the Treasury, U.S. Customs Service, Washington, DC (Activity) (Authority decision, May 30, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

NTEU appealed a Customs Service response to proposals concerning inspectional overtime. The Authority found that resolving the dispute required factual findings about the parties’ bargaining conduct. It dismissed the appeal without prejudice to appropriate procedures and a later negotiability petition if needed.

Decision snapshot

• Authority: 5 U.S.C. § 7117.
• Outcome: Appeal dismissed without prejudice; no negotiability merits ruling.
• Key point: Bargaining conduct questions had to be resolved in another proceeding first.

Full text (FLRA public release)

[ v03 p330 ]

03:0330(52)NG

The decision of the Authority follows:

3 FLRA No. 52

NATIONAL TREASURY EMPLOYEES UNION
(Union)

and

DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
WASHINGTON, D.C.
(Activity)

Case No. 0-NG-92

DECISION ON NEGOTIABILITY APPEAL

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101 ET SEG.)

THE U.S. CUSTOMS SERVICE, WASHINGTON, D.C., ANNOUNCED PLANS TO
IMPLEMENT GUIDELINES CONCERNING INSPECTIONAL OVERTIME. IN RESPONSE TO
THIS ANNOUNCEMENT, THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) SOUGHT
TO NEGOTIATE ON THE SUBSTANCE, IMPLEMENTATION AND IMPACT OF THESE
GUIDELINES, ASSERTING THAT THEY CHANGED PAST PRACTICES AND INSTITUTED
SIGNIFICANT CHANGES IN WORKING CONDITIONS. THEREAFTER, THE NTEU
SUBMITTED 54 PROPOSALS CONCERNING THE IMPACT OF THE GUIDELINES. THE
PARTIES MET AND BARGAINED OVER THE UNION'S PROPOSALS ON SEVERAL
OCCASIONS. DURING THE COURSE OF NEGOTIATIONS, THE ACTIVITY NOTIFIED THE
UNION OF ITS REFUSAL TO BARGAIN ON SIX OF THE PROPOSALS, STATING THAT
THEY BORE NO RELATION TO THE SUBJECT MATTER UNDER CONSIDERATION.

THE NTEU FILED AN APPEAL FROM THE ACTIVITY'S ACTION. /1/ IN ITS
STATEMENT OF POSITION, THE UNION ALLEGES THAT THE IMPLEMENTATION OF THE
ANNOUNCED POLICIES WILL CHANGE ESTABLISHED WORKING CONDITIONS BY
REVISING WORK SCHEDULES AND REDUCING THE AMOUNT OF OVERTIME AVAILABLE TO
UNIT EMPLOYEES. THE UNION CONTENDS THAT THE PROPOSALS ON WHICH THE
ACTIVITY REFUSED TO BARGAIN ARE REASONABLY RELATED TO THE MATTER UNDER
NEGOTIATION. FURTHER, IT URGES THE AUTHORITY TO ADOPT A POLICY WHEREBY
PROPOSALS THAT ADDRESS THE IMPACT OF A PROPOSED AGENCY ACTION AND ARE
NOT IN CONFLICT WITH MANAGEMENT RIGHTS ARE FULLY NEGOTIABLE IN THE
COLLECTIVE BARGAINING CONTEXT.

IN ITS SUBMISSION TO THE AUTHORITY, THE ACTIVITY ASSERTS THAT THE
PETITION DOES NOT PRESENT A PROPER NEGOTIABILITY ISSUE, BUT RATHER THAT
THE SIX PROPOSALS BEAR NO RELATION TO THE SUBJECT MATTER UNDER
NEGOTIATION AND THAT THE ACTIVITY, CONSEQUENTLY, HAS NO OBLIGATION TO
BARGAIN ABOUT THEM. THE ACTIVITY ALSO ASSERTS THAT THE UNION'S
PROPOSALS ADDRESSED MATTERS ALREADY GOVERNED BY EXISTING POLICIES AND
REGULATIONS THAT ARE UNAFFECTED BY IMPLEMENTATION OF THE ANNOUNCED
GUIDELINES. FINALLY, THE ACTIVITY ARGUES THAT THE ISSUE PRESENTED TO
THE AUTHORITY AS A NEGOTIABILITY APPEAL ACTUALLY INVOLVES A QUESTION
CONCERNING THE OBLIGATION TO BARGAIN.

IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617
AND DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, AIR FORCE LOGISTICS
COMMAND, KELLY AIR FORCE BASE, TEXAS, 2 FLRA NO. 55, (1980), THE
AUTHORITY DISMISSED A PETITION FOR REVIEW OF A NEGOTIABILITY
DETERMINATION ON THE GROUNDS THAT THE CIRCUMSTANCES OF THE CASE
PRESENTED AN UNFAIR LABOR PRACTICE ISSUE. IN MAKING THIS DETERMINATION,
THE AUTHORITY FOUND THAT THE APPEAL CONCERNED A REFUSAL TO BARGAIN ON AN
ALLEGED UNILATERAL CHANGE IN WORKING CONDITIONS, RATHER THAN THE
QUESTION OF WHETHER THE PROPOSALS THEMSELVES WERE NEGOTIABLE. THUS, THE
AUTHORITY CONCLUDED:

(T)O THE EXTENT THAT THE CASE AROSE OUT OF AN ALLEGED UNILATERAL
CHANGE COUPLED WITH A

REFUSAL TO BARGAIN AND A DEFENSE, ESSENTIALLY, THAT NO CHANGE HAS
OCCURRED, THE PROPER FORUM

TO RAISE THESE ISSUES . . . WOULD BE AN UNFAIR LABOR PRACTICE
PROCEEDING PURSUANT TO SECTION

7118 OF THE STATUTE.

IT IS CLEAR FROM THE RECORD IN THE INSTANT CASE THAT THE ESSENCE OF
THE PARTIES' ALLEGATIONS AND CONTENTIONS RELATES TO WHETHER A PAST
PRACTICE HAS BEEN CHANGED BY THE IMPLEMENTATION OF GUIDELINES DETAILED
IN A MANUAL SUPPLEMENT. THUS, THE FUNDAMENTAL ISSUE IN THIS CASE, AS IN
KELLY AIR FORCE BASE, SUPRA, CONCERNS THE ACTIVITY'S OBLIGATION TO
BARGAIN. THE PROPER FORUM IN WHICH TO RAISE THESE ISSUES WOULD BE AN
UNFAIR LABOR PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE
STATUTE. IN THIS REGARD, RESOLUTION OF THE INSTANT DISPUTE IS DEPENDENT
UPON THE RESOLUTION OF FACTUAL ISSUES RELATED TO THE PARTIES' CONDUCT.
SUCH FACTUAL DETERMINATIONS CAN BE BEST ACCOMPLISHED THROUGH USE OF THE
INVESTIGATORY AND HEARING PROCEDURES SET FORTH IN PART 2423 OF THE
AUTHORITY'S RULES AND REGULATIONS, WHICH GOVERN UNFAIR LABOR PRACTICE
PROCEEDINGS (45 F.R. 3506).

BASED ON THE FOREGOING, THE UNION'S APPEAL DOES NOT PRESENT ISSUES
THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME UNDER SECTION
7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND REGULATIONS.
ACCORDINGLY, THE APPEALS ARE DISMISSED WITHOUT PREJUDICE TO THE UNION'S
RIGHT TO RESUBMIT TO THE AUTHORITY ANY NEGOTIABILITY DISPUTE WHICH
REMAINS CONCERNING THE UNION'S PROPOSALS, AFTER RESORTING TO THE
PROCEDURES DISCUSSED ABOVE.

ISSUED, WASHINGTON, D.C., MAY 30, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ THE UNION SUBSEQUENTLY FILED THREE UNFAIR LABOR PRACTICE CHARGES,
TWO OF WHICH CONCERN THE ISSUE OF THE OBLIGATION TO BARGAIN OVER THE
PROPOSED GUIDELINES. PURSUANT TO SECTION 2423.5 OF THE RULES AND
REGULATIONS, PROCEEDINGS ON THESE UNFAIR LABOR PRACTICE CHARGES HAVE
BEEN SUSPENDED PENDING THE OUTCOME OF THIS DECISION.