National Treasury Employees Union and U.S. Customs Service (Authority decision, January 29, 1982)

Final FLRA decision. The Authority dismissed this negotiability appeal without prejudice to a later negotiability dispute after the parties use the appropriate procedures. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

NTEU proposed terms for Customs Service employees assigned to a federal law enforcement training center. The parties disputed whether Customs officials controlled conditions at the center enough to create a duty to bargain. The Authority found that the immediate issue was the agency's bargaining obligation, rather than the negotiability of specific proposals. It said an unfair labor practice proceeding could address that question and any needed factual findings. It dismissed the appeal without prejudice to a later negotiability dispute after those procedures.

Decision snapshot

• Authority: Negotiability and unfair labor practice procedures under 5 U.S.C. §§ 7117 and 7118.
• Outcome: Negotiability appeal dismissed without prejudice, with no merits ruling on the proposals.
• Key point: A dispute over whether the agency has a duty to bargain belongs in an unfair labor practice proceeding.

Full text (FLRA public release)

[ v07 p837 ]

07:0837(142)NG

The decision of the Authority follows:

7 FLRA No. 142

NATIONAL TREASURY EMPLOYEES UNION
Union

and

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

Case No. O-NG-370

DECISION AND ORDER ON NEGOTIABILITY APPEAL

THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE). UPON CAREFUL
CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.

BASED ON THE RECORD, THAT PARTIES' DISPUTE IN THIS CASE CONCERNS
CERTAIN PROPOSALS PROFFERED BY THE UNION TO THE AGENCY BEARING UPON THE
CONDITIONS UNDER WHICH EMPLOYEES UNDERGO TRAINING AT THE FEDERAL LAW
ENFORCEMENT TRAINING CENTER ON ASSIGNMENT FROM THE CUSTOMS SERVICE. AS
PRESENTED AND ARGUED BY THE PARTIES, THE DISPUTE IS CONCERNED WITH THE
AUTHORITY OF CUSTOMS SERVICE OFFICIALS OVER CONDITIONS AT THE CENTER
SUCH AS TO GIVE RISE TO A DUTY TO BARGAIN UNDER THE CIRCUMSTANCES.

THE CIRCUMSTANCES HEREIN DO NOT GIVE RISE TO A NEGOTIABILITY DISPUTE
WHICH THE AUTHORITY MAY PROPERLY REVIEW AT THIS TIME PURSUANT TO SECTION
7117 OF THE STATUTE. THUS, IT APPEARS THAT THE ESSENCE OF THE DISPUTE
BETWEEN THE PARTIES CONCERNS THE QUESTION OF THE AGENCY'S OBLIGATION TO
BARGAIN AND NOT THE NEGOTIABILITY OF THE PARTICULAR PROPOSALS INVOLVED.
IT IS NOW WELL ESTABLISHED THAT THE PROPER FORUM IN WHICH TO RESOLVE
SUCH A QUESTION IS NOT A NEGOTIABILITY CASE, BUT, RATHER AN UNFAIR LABOR
PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE AND PART
2423 OF THE AUTHORITY'S RULES AND REGULATIONS. SEE, E.G., AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF
PERSONNEL MANAGEMENT, WASHINGTON, D.C., 6 FLRA NO. 15(1981), AND CASES
CITED THEREIN. IN THAT REGARD, RESOLUTION OF THE INSTANT DISPUTE MAY BE
DEPENDENT UPON THE RESOLUTION OF FACTUAL ISSUES WHICH SHOULD BE
ACCOMPLISHED THROUGH USE OF INVESTIGATORY AND FORMAL HEARING PROCEDURES
ESTABLISHED UNDER THE STATUTE AND THE AUTHORITY'S RULES AND REGULATIONS.

ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S APPEAL
BE, AND IT HEREBY IS, 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.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., JANUARY 29, 1982

JAMES J. SHEPARD, EXECUTIVE DIRECTOR

FEDERAL LABOR RELATIONS AUTHORITY