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

The National Treasury Employees Union challenged a Customs Service uniform requirement for officers attending a training center. The parties disputed whether Customs had changed an existing policy and refused to bargain. The Authority held that this factual unfair labor practice dispute was premature for a negotiability appeal. It dismissed the appeal without prejudice to a later negotiability filing after the proper proceeding.

Decision snapshot

• Authority: 5 U.S.C. § 7117, 5 U.S.C. § 7118.
• Outcome: Negotiability appeal dismissed without prejudice; uniform proposal merits not decided.
• Key point: The factual dispute over a policy change required another proceeding first.

Full text (FLRA public release)

[ v04 p456 ]

04:0456(62)NG

The decision of the Authority follows:

4 FLRA No. 62

NATIONAL TREASURY EMPLOYEES UNION
Union

and

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

Case No. O-NG-144

DECISION AND ORDER ON NEGOTIABILITY APPEAL

THIS CASE COMES BEFORE THE FEDERAL LA0OR RELATIONS AUTHORITY PURSUANT
TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. 7101-7135.

THE U.S. CUSTOMS SERVICE, WASHINGTON, D.C. (CUSTOMS) SENT THE
NATIONAL TREASURY EMPLOYEES UNION (NTEU) PROPOSED ISSUANCES CONCERNING A
REQUIREMENT FOR CUSTOMS PATROL OFFICERS (CPO'S) AND CUSTOMS INSPECTORS
(INSPECTORS) TO WEAR UNIFORMS WHILE ATTENDING TRAINING AT THE FEDERAL
LAW ENFORCEMENT TRAINING CENTER (TRAINING CENTER), GLYNCO, GEORGIA. THE
PROPOSED ISSUANCES WERE DESIGNED TO IMPLEMENT THE REQUIREMENT OF THE
TRAINING CENTER WITHIN CUSTOMS, AND WERE SENT TO THE NTEU TO AFFORD IT
AN OPPORTUNITY TO MEET AND CONFER ON THE IMPACT AND IMPLEMENTATION OF
THE REQUIREMENT. THEREAFTER, THE NTEU SUBMITTED TO CUSTOMS A
COUNTERPROPOSAL COMPRISING TWO SECTIONS CONCERNED WITH THE WEARING OF
UNIFORMS BY, AND THE ISSUANCE OF UNIFORMS TO CPO'S AND INSPECTORS.

THE RECORD INDICATES THE PARTIES ARE NOW IN DISPUTE OVER WHETHER THE
NTEU AGREED THAT THE PROPOSED ISSUANCE BY CUSTOMS REGARDING CPO'S ONLY
AFFIRMED AND DID NOT CHANGE EXISTING POLICY AND, THUS, CUSTOMS COULD
PUBLISH THE CPO UNIFORM POLICY WITHOUT NEGOTIATIONS. THUS, THE
SUBSTANCE OF THE PARTIES' DISPUTE RELATES TO WHETHER A PAST POLICY
REGARDING UNIFORMS HAS BEEN CHANGED BY CUSTOMS; THAT IS, AN ALLEGED
UNILATERAL CHANGE COUPLED WITH, IN ESSENCE, A REFUSAL TO BARGAIN AND A
DEFENSE THAT NO CHANGE HAS OCCURRED. THE NTEU'S NEGOTIABILITY APPEAL IS
PREMATURE BECAUSE THE FUNDAMENTAL ASPECT OF THE PARTIES' ALLEGATIONS AND
CONTENTIONS DOES NOT FOCUS ON AN ISSUE APPROPRIATE FOR RESOLUTION UNDER
THE PROCEDURES SET FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424), CONCERNING WHETHER
PARTICULAR UNION PROPOSALS ARE THEMSELVES NONNEGOTIABLE; THAT IS,
INCONSISTENT WITH LAW, RULE, OR REGULATION. RATHER, THE PROPER FORUM IN
WHICH TO RESOLVE THIS DISPUTE 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 (5 CFR 2423), WHICH GOVERN UNFAIR LABOR PRACTICE
PROCEEDINGS. SEE 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), AND
NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, U.S.
CUSTOMS SERVICE, WASHINGTON, D.C., 3 FLRA NO. 52(1980).

BASED ON THE FOREGOING, THE NTEU'S APPEAL DOES NOT PRESENT ISSUES
THAT THE AUTHORITY CA, APPROPRIATELY RESOLVE AT THIS TIME UNDER SECTION
7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND REGULATIONS (5 CFR
2425). ACCORDINGLY, IT IS ORDERED THAT THE APPEAL BE DISMISSED WITHOUT
PREJUDICE TO THE NTEU'S RIGHT TO RESUBMIT TO THE AUTHORITY ANY
NEGOTIABILITY DISPUTE WHICH REMAINS CONCERNING THE NTEU'S PROPOSAL,
AFTER RESORTING TO THE PROCEDURES DISCUSSED ABOVE.

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

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY