National Treasury Employees Union and U.S. Customs Service, Honolulu (Authority decision, January 7, 1983)

Final FLRA decision. The Authority dismissed this negotiability petition after a related ruling resolved the issue. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

NTEU appealed Customs Service objections to proposed starting times, quitting times, and lunch periods for new shifts. The Authority stayed the negotiability appeal while it resolved a related unfair labor practice case. In that case it held substantially identical proposals within the duty to bargain. Because the earlier ruling already settled the issue, the Authority dismissed this petition as moot.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Negotiability petition dismissed as moot after related ruling.
• Key point: A prior Authority decision on substantially identical proposals left no issue for this appeal.

Full text (FLRA public release)

[ v11 p17 ]

11:0017(9)NG

The decision of the Authority follows:

11 FLRA No. 9

NATIONAL TREASURY EMPLOYEES UNION
Union

and

DEPARTMENT OF THE
TREASURY, U.S. CUSTOMS
SERVICE, HONOLULU, HAWAII
Agency

Case No. O-NG-204

ORDER DISMISSING PETITION FOR REVIEW

This case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). For the following reasons it has been determined that the Union's petition for review must be dismissed.

The record reveals that the Union submitted to the Agency proposals concerning the starting and quitting times of newly established shifts and the length of lunch periods to be established in connection therewith. The Agency essentially alleged that these proposals were outside the duty to bargain because the Agency under section 7106(b)(1) of the Statute had no obligation to bargain on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty. The Union then filed this petition for review with the Authority. In its petition, the Union notified the Authority that it had previously filed an unfair labor practice charge with the Authority in connection with this matter and, pursuant to section 2424.5 of the Authority's Rules and Regulations, requested that the Authority process the unfair labor practice charge first and stay the negotiability appeal pending resolution of the charge. The Union's request was granted.

Subsequently, the Authority issued its decision with respect to the matters at issue in the related unfair labor practice charge. In Department of the Treasury, United States Customs Service, Region VIII, San Francisco, California and National Treasury Employees Union, 9 FLRA No. 68 (1982), the Authority adopted the Administrative Law Judge's conclusion that "the Respondent (Agency) violated section 7116(a)(1) and (5) of the Statute by its refusal to bargain over impact and implementation proposals, i.e., the starting and quitting times and lunch periods to be established in connection with the newly established shifts." In this regard, the Authority adopted the Judge's conclusion that the proposals were not inconsistent with management's rights under section 7106(b)(1) of the Statute and his recommendation that the Agency be required to negotiate, upon request, with the Union regarding the impact and implementation of the Agency's decision to establish new shifts. /1/

The proposals in dispute herein are substantially identical to the proposals found to be within the Agency's duty to bargain in the related unfair labor practice charge and the Agency has not raised any matters here which were not raised before the Judge or Authority in the unfair labor practice proceeding. Under these circumstances, the negotiability issues raised in this appeal were rendered moot by the Authority's decision in U.S. Customs Service, Region VIII, 9 FLRA No. 68, adopting the Judge's conclusion that the proposals concerning the starting and quitting times of shifts and length of lunch periods are within the Agency's duty to bargain.

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. /2/ Issued, Washington, D.C., January 7, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ Nevertheless, the Union has filed an appeal seeking review of the Authority's Decision and Order because the Authority refused to order a return to the status quo ante. NTEU v. FLRA, incorrectly docketed as NTEU v. U.S. Customs Service, Reg. VIII, No. 82-7534 (9th Cir. Sept. 17, 1982).

/2/ Based on the record, there appears to be some dispute as to whether a proposal dealing with compressed work schedules was alleged to be nonnegotiable. In any event, during the pendency of this appeal, the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227 (1982), became effective. Because this Act differs substantially in some respects from its predecessor, the Federal Employees Flexible and Compressed Work Schedules Act of 1978, Pub. L. No. 95-390, 92 Stat. 755 (1978), as amended by Pub. L. No. 97-160, 96 Stat. 21 (1982), the Authority has determined that negotiability disputes as to proposals concerning flexible or compressed work schedules which arose prior to the effective date of the successor law have been rendered moot. See National Treasury Employees Union, Chapter 217 and Department of Health and Human Services, Region II, 10 FLRA No. 18 (1982).