Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Customs and Border Protection, Seattle, Washington (Respondent) and Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Customs and Border Protection, Lynden, Washington (Respondent) and National Treasury Employees Union (Charging Party) and Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Customs and Border Protection, Washington, D.C. (Respondent) and National Treasury Employees Union (Charging Party)

[ v61 p272 ]

61 FLRA No. 52

DEPARTMENT OF HOMELAND SECURITY
BORDER AND TRANSPORTATION SECURITY
DIRECTORATE, BUREAU OF CUSTOMS AND
BORDER PROTECTION
SEATTLE, WASHINGTON
(Respondent)

and

DEPARTMENT OF HOMELAND SECURITY
BORDER AND TRANSPORTATION SECURITY
DIRECTORATE, BUREAU OF CUSTOMS AND
BORDER PROTECTION
LYNDEN, WASHINGTON
(Respondent)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Charging Party)

and

DEPARTMENT OF HOMELAND SECURITY
BORDER AND TRANSPORTATION SECURITY
DIRECTORATE, BUREAU OF CUSTOMS AND
BORDER PROTECTION
WASHINGTON, D.C.
(Respondent)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Charging Party)

SF-CA-02-0003
SF-CA-02-0060
SF-CA-03-0183

_____

DECISION AND ORDER

September 27, 2005

____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case [n2] 

      This consolidated unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Charging Party. [n3]  The Respondent filed an opposition to the Charging Party's exceptions. [n4] The General Counsel (GC) did not file exceptions or an opposition.

      The complaints in SF-CA-02-0003, SF-CA-02-0060, and SF-CA-03-0183 were consolidated for hearing and decision. Each complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). The complaint in SF-CA-02-0003 alleges that the Respondent repudiated a negotiated agreement concerning overtime staffing procedures for security checkpoints at Seattle-Tacoma Airport (Sea-Tac). The complaint in SF-CA-02-0060 alleges that the Respondent refused to negotiate over the implementation of a midnight to 8 a.m. shift at the Port of Lynden, Washington. The complaint in SF-CA-03-0183 alleges that the Respondent implemented numerous shift changes at Sea-Tac without affording the Charging Party notice or an opportunity to bargain. The Judge dismissed the complaints.

      For the following reasons, we deny the Charging Party's exceptions and dismiss the complaints. [ v61 p273 ]

II.     Background and Judge's Decision

      The Charging Party's level of recognition is at the national level. During the relevant time period, the Respondent and the Charging Party were operating under an expired National Labor Agreement (NLA). The NLA contains Article 37, which governs bargaining during the term of the agreement. The Respondent and the Charging Party also were parties to a National Inspectional Assignment Policy (NIAP), which provided, as relevant here, for negotiations at the local level over 5 U.S.C. § 7106(b)(1) matters. On August 2, 2001, [n5]  the Respondent notified the Charging Party that it would no longer be bound by any agreements requiring bargaining over § 7106(b)(1) matters and proposed a revised NIAP (RNIAP), which included provisions reiterating the Respondent's statutory management rights regarding the establishment of tours of duty, scheduling, and work hours. [n6]  The Charging Party requested to bargain over the RNIAP and proposed, as a ground rule, that such bargaining be combined with bargaining over a new NLA. Believing it had no duty to combine these negotiations, the Respondent declined to bargain over this proposal, and on October 1, implemented the RNIAP nationwide.

      The Charging Party filed a grievance (hereinafter, the NIAP grievance) over the Respondent's unilateral implementation of the RNIAP. The grievance was resolved in arbitration in favor of the Charging Party. Subsequently, the Authority granted the Respondent's exceptions to the award and found that the Respondent had lawfully implemented the RNIAP. See Customs Service, 59 FLRA at 708-11. In this connection, the Authority found that the Respondent had no obligation to bargain over the Charging Party's proposal to combine the NLA and RNIAP negotiations. Id. at 710.

      Meanwhile, in the aftermath of the terrorist attacks of September 11, the Respondent was tasked with staffing security checkpoints at Sea-Tac with armed, uniformed inspectors. The Respondent and the Charging Party reached an agreement to staff the midnight to 8 a.m. shift at Sea-Tac by rotating employees on a daily basis. On September 21, the Respondent began staffing the new shift, in accordance with the parties' agreement, on an overtime basis. On October 1, the Respondent changed the midnight to 8 a.m. assignment to a weekly-rotated shift on regular time and, thus, eliminated overtime for that assignment. The Charging Party filed a ULP charge, which resulted in the complaint in SF-CA-02-0003.

      On September 11, the Respondent also implemented a midnight to 8 a.m. shift at the Port of Lynden. Initially, the shift was staffed on a voluntary basis. Shortly thereafter, the Respondent began staffing the shift on a rotational basis. On September 25, the Charging Party requested post-implementation bargaining over the new assignment. The Respondent never responded to the Charging Party's request, which resulted in the complaint in SF-CA-02-0060.

      On November 26, 2002, the Respondent announced its intention to implement certain personnel changes, including a new 7-day workweek for inspectors at Sea-Tac. The next day, the Charging Party requested to negotiate the impact and implementation of the Respondent's proposed changes and requested to maintain the status quo pending negotiations. The Respondent declined to bargain and implemented the new schedule in December 2002, which resulted in the complaint in SF-CA-03-0183.

      Initially, the Judge rejected the Respondent's procedural claim that under § 7116(d) of the Statute, the complaints were barred by the NIAP grievance. [n7]  As to the merits, the Judge noted the Authority's holding in Customs Service that the Respondent lawfully implemented the RNIAP. See Judge's decision at 28. The Judge, citing NTEU, Chapter 137, Customs Service, Seattle, Wash., and Customs and Border Protection, also noted two points that he found emerged from the Authority's decisions: (1) Section 3 of the RNIAP terminated locally negotiated agreements concerning inspectional assignment matters, as well as the Respondent's obligation to bargain at the local level over such matters; and (2) the RNIAP does not constitute a negotiated agreement and, thus, is not a basis for a "covered by" defense. Id. at 28-29. Against this legal backdrop, the Judge considered the allegations in each complaint.

      With respect to the allegation in SF-CA-02-0003 that the Respondent repudiated an agreement to staff the midnight to 8 a.m. shift on an overtime basis, the Judge found it "unnecessary to apply the analytical framework that is normally applied in addressing repudiation allegations." Id. at 30. In this regard, the Judge found that, even assuming that the Respondent agreed to use overtime for staffing the midnight to 8 a.m. shift at Sea-Tac, that agreement terminated on October 1 by operation of Section 3 of the RNIAP. Consequently, the Judge found [ v61 p274 ] that the Respondent's actions on October 1 in changing this shift from overtime to regular time did not violate the Statute.

      Turning to the complaint in SF-CA-02-0060, the Judge found that the Respondent did not have a duty to engage in post-implementation bargaining with the Charging Party because, within a week of the Charging Party's bargaining request, the Respondent's bargaining obligation had "evaporated." Id. at 32. According to the Judge, "any locally negotiated agreements concerning inspectional assignment issues would have terminated as of October 1" and therefore, "bargaining would have been an exercise in futility." Id.

      Finally, with respect to the complaint in SF-CA-03-0183, the Judge acknowledged that the complaint was "broadly framed" and that it "could be read as" alleging a violation at the Respondent's national level. Id. at 33. However, the Judge found that "the issue presented and litigated by the parties [was] whether [the] Respondent violated the Statute by failing to bargain at the local level concerning a local level change." Id. Accordingly, the Judge found that, because the Respondent was no longer obligated to bargain at the local level, pursuant to the RNIAP, the Respondent did not violate the Statute by failing to engage in local level bargaining over the work schedule changes.

III.     Positions of the Parties

A.      Charging Party's Exceptions

      Regarding the complaint in SF-CA-02-0003, the Charging Party disputes the Judge's conclusion that the Respondent did not repudiate the parties' agreement when it changed staffing the new shift from overtime to non-overtime. In this connection, the Charging Party disagrees with the Judge's finding that the RNIAP terminated all existing local assignment agreements and the Respondent's obligation to bargain at the local level over such agreements. See Exceptions at 13-14. Specifically, the Charging Party argues that, because the RNIAP was drafted prior to the September 11 terrorist attacks, "it could not be aimed at emergency staffing assignments necessitated by the attacks." Id. at 19. Moreover, the Charging Party asserts that the new midnight to 8 a.m. shift is "akin to a detail" and that "the RNIAP does not contain any provision governing or related to the staffing of details . . . ." Id. at 19-20. Consequently, the Charging Party argues that the Respondent's unilateral change to the shift is not excused by the adoption of the RNIAP and, therefore, amounts to a repudiation of the parties' agreement.

      Turning to the complaint in SF-CA-02-0060, the Charging Party excepts to the Judge's conclusion that the Respondent did not violate the Statute by failing to engage in post-implementation bargaining with the Charging Party over the new midnight to 8 a.m. shift at the Port of Lynden. Specifically, the Charging Party disputes the Judge's finding that such bargaining would have been an "exercise in futility" and that any agreement reached from such bargaining would have terminated on October 1. Id. at 24. In this regard, the Charging Party repeats its arguments made in case SF-CA-02-0003 that the RNIAP does not govern staffing emergency assignments and that it does not rescind the Respondent's obligation to bargain at the local level. See id. at 25.

      With regard to the complaint in SF-CA-03-0183, the Charging Party excepts to the Judge's determination that the complaint, although "broadly framed[,]" does not encompass an allegation that the Respondent violated the Statute by failing to give notice and bargain at the national level. In this regard, the Charging Party asserts that "the theory of [the GC's] case is the refusal of [the] Respondent to provide notice and bargaining at any level." Id. at 28. According to the Charging Party, the Respondent "admitted throughout the proceeding that it did not give notice or bargain" at any level, arguing instead that it "was not required to" bargain at the local level over matters encompassed by the RNIAP. Id. at 27.

      Finally, the Charging Party asserts that the Respondent "had a duty to bargain its changes at the Port of Seattle" because Article 37 of the parties' national labor agreement (NLA) requires the Respondent "to negotiate local changes locally . . . ." Id. at 29. According to the Charging Party, the Respondent has not provided notice of its intent to rescind Article 37 or to terminate its obligation to bargain under this permissively negotiated provision. The Charging Party asserts that "the Respondent rescinded local bargaining only as to [§] 7106(b)(1) matters, and the appropriate level of bargaining is not a subject within the ambit of [§] 7106(b)(1)." Id. at 32. Moreover, according to the Charging Party, "[t]he level at which notice and bargaining of changes must be given is not a `matter covered within' the RNIAP." Id.

B.      Respondent's Opposition

      Initially, the Respondent notes the Authority's prior holdings in related cases that the RNIAP is a valid document that was properly implemented in accordance with the Statute. The Respondent claims that, under this precedent, it has the right to make unilateral changes to [ v61 p275 ] inspectional assignment matters "without further impact and implementation bargaining with the [Charging Party] at the local or national level . . . ." Opposition at 2.

      With respect to SF-CA-02-0003 and SF-CA-02-0060, the Respondent disputes the Charging Party's arguments that the changes to inspectional assignments were not matters encompassed within the RNIAP. According to the Respondent, changes in inspectional assignments were "mission related[,]" which is one of the expressed purposes of the RNIAP, Section 1. See id. at 4-5 n.4. In any event, the Respondent asserts that the Charging Party's arguments in this regard are being raised here for the first time and should not be considered.

      With respect to SF-CA-03-0183, the Respondent disputes the Charging Party's claim that bargaining over the inspectional assignments was required because the Respondent did not rescind local bargaining required by Article 37 of the NLA. In this regard, the Respondent asserts that the RNIAP contains a "precedence clause" in which "no further negotiation is required as to the exercise of any provision contained in the RNIAP." Id. at 6.

IV.     Preliminary Issue

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider an issue that could have been, but was not, raised before the administrative law judge. See, e.g., United States Veterans Affairs, Veterans Affairs Med. Ctr., Coatesville, PA, 57 FLRA 663, 666 (2002). Regarding the complaints in SF-CA-02-0003 and SF-CA-02-0060, the Respondent asserts that the Charging Party's argument that the disputed shift changes were not matters encompassed within the RNIAP was not raised below.

      Although the record supports the Respondent's claim that the Charging Party did not raise this issue below, its failure to do so is excusable. In this regard, at the time this case was being litigated, an arbitrator had ruled, in resolution of the NIAP grievance, that the RNIAP was unlawfully implemented. After the parties submitted post hearing briefs, but before the Judge issued his decision, the Authority overturned the arbitration award and ruled that the RNIAP was lawfully implemented. See Customs Service, 59 FLRA at 711. The Judge relied on this ruling in dismissing the complaints. See Judge's Decision at 28-29. In these circumstances, the Charging Party cannot fairly be charged with having to anticipate a point of law that did not exist. See, e.g., Int'l Brotherhood of Electrical Workers, Gov't Coordinating Council No. 1, 57 FLRA 7, 8-9 (2001) (citing Dep't of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7, 11 (1995) (exceptions not barred by § 2429.5 where exceptions were in response to issues that arose only after judge's findings) and PASS, Dist. No. 1, MEBA/NMU (AFL-CIO), 48 FLRA 764, 768 n* (1993) (union's argument that arbitrator failed to consider standards set forth by law and regulation not barred by § 2429.5 where issue arose only after issuance of the award)).

V.      Analysis and Conclusions

      In Customs Service, 59 FLRA 703, the Authority held that the Respondent lawfully implemented the RNIAP. Subsequently, in NTEU, Chapter 137, the Authority held that, under section 3 of the lawfully implemented RNIAP, the Respondent was no longer obligated to bargain at the local level with the Charging Party over inspectional assignment matters. See 60 FLRA at 487. In so holding, the Authority explained that the Respondent's termination of its obligation to bargain at the local level was "consistent with its right to terminate permissive terms of expired agreements -- including Article 37 of the parties' 1999 NLA and the 1995 NIAP . . . ." Id. The Authority also clarified that Section 3 of the RNIAP "did not extinguish the [Respondent's] statutory bargaining obligations at the national level . . . to bargain over all mandatory subjects of bargaining concerning . . . inspectional assignments." Id. at 488. The Authority followed this precedent in Customs and Border Protection, and concluded that "section 3 of the RNIAP, by its terms, effectively terminated any previously existing agreement that required the [Respondent] to bargain at the local level over the impact and implementation of decisions concerning the assignment of inspectors . . . ." 60 FLRA at 500 (Chairman Cabaniss dissenting) (emphasis added).

      With respect to the complaints in SF-CA-02-0003 and SF-CA-02-0060, the Charging Party's insistence that the RNIAP did not rescind the Respondent's obligation to bargain at the local level is without merit. As set forth above, the Authority has specifically held that the RNIAP rescinded the Respondent's duty to engage in such local level bargaining. See NTEU, Chapter 137, 60 FLRA at 487. The Charging Party's attempt to distinguish this case from the foregoing precedent by characterizing the issue as concerning "emergency staffing" and/or "details[,]" which are not covered by the RNIAP, also fails. Exceptions at 19-20, 25. In this regard, the changes at issue involved the establishment of new midnight to 8 a.m. shifts at Sea-Tac and the Port of Lynden, which necessarily involve changes to inspectional assignments. [ v61 p276 ]

      In addition, the record establishes that the RNIAP applies to inspectional assignments, including "tours of duty, scheduling and work hours." Joint Exhibit 1, Stipulation of Facts ¶ 7. Moreover, section 1 of the RNIAP expressly permits the Respondent's managers and supervisors "to respond to mission and workload demands." Consequently, the Charging Party's claim that the RNIAP does not encompass emergency situations is without merit. Similarly, we are not persuaded by the Charging Party's claim that the new assignments constituted a detail. Regardless of how the term "detail" is defined, it is clear that the changes to the inspectional assignments established new tours of duty, which are expressly covered by the RNIAP. Based on the foregoing, we find that the Judge correctly concluded that the Respondent was not obligated to bargain at the local level over the changes to inspectional assignments encompassed in the complaints in SF-CA-02-0003 and SF-CA-02-0060.

      With respect to the complaint in SF-CA-03-0183, the Judge found that changes to inspectional assignments at issue were made in December 2002, after the RNIAP was implemented on October 1, 2001. See Judge's Decision at 33. As such, the Judge correctly concluded that the Respondent's obligation to bargain at the local level over those changes had expired by the time the changes were made. Consequently, we agree with the Judge that the Respondent did not violate the Statute by not bargaining with the Charging Party at the local level over the December 2002 inspectional assignment changes. Nevertheless, the Respondent remains obligated to bargain at the national level over mandatory subjects of bargaining concerning inspectional assignments. [n8]  See NTEU, Chapter 137, 60 FLRA at 488. The issue then becomes whether the complaint in SF-CA-03-0183 encompasses an allegation that the Respondent violated the Statute by failing to bargain with the Charging Party at the national level over changes to inspectional agreements. For the following reasons, we find that it does not.

      Although the Judge acknowledged that the complaint "could be read" as including an allegation about the Respondent's duty to bargain at the national level, he found, based on the facts and arguments submitted by the parties, that the only issue litigated concerned the Respondent's obligation to bargain at the local level. Consistent with the Judge's findings, we also find that the allegations in the complaint are stated broadly and do not specify bargaining at the national or the local level. In particular, the complaint alleges that the Respondent implemented the disputed changes "without first providing the Charging Party with prior notice and an opportunity to negotiate to the extent required by the Statute." GC Exhibit 2(d), ¶ 13. Nevertheless, a review of the record as a whole supports the Judge's finding that the dispute was limited to local bargaining. In this regard, there is no dispute that the request to bargain was made at the local level over a change that occurred at the local level. Also, there is no indication in the record that the Charging Party ever requested to bargain over the disputed change at the national level. As such, the issue litigated below was whether the Respondent violated the Statute by not bargaining at the local level over a local level change.

      Further, the Respondent's sole defense to the allegations in the complaint was that it was not obligated to bargain at the local level. See GC Exhibit 2(f), ¶ 9 (explaining that "the heart of this case is NTEU's insistence on local level bargaining"). Although the GC and the Charging Party were on notice of the Respondent's assertion in its answer that it was not obligated to bargain at the local level, neither the GC nor the Charging Party argued at the hearing or in their post hearing briefs that the Respondent nevertheless was required to bargain at the national level and, therefore, violated the Statute by not doing so. Indeed, the Charging Party acknowledged in a footnote that the Respondent did not give notice of the changes at the national level, but the Charging Party never argued that the Respondent's actions in this regard violated the Statute. See Charging Party's Post Hearing Brief at 50 n.17. As the record fully supports the Judge's finding that only the issue of local level bargaining was litigated, we deny the Charging Party's exception.

VI.     Order

      The complaints are dismissed. [ v61 p277 ]


APPENDIX

The RNIAP provides in relevant part:

1.      PURPOSE
The purpose of this Handbook is to revise and update the policy governing the assignment of inspectional and canine personnel. This policy is created to provide outstanding service at the least cost to the government and public; to enable Customs Service managers and supervisors to respond to mission and workload demands quickly and efficiently; to maximize the effective use of overtime; and to provide uniformity, efficiency, and fairness in the assignment of employees.
. . . .
3.      PRECEDENCE AND FUNCTION
The policies and procedures contained in this Handbook take precedence over any and all other agreements, policies, or other documents or practices executed or applied by the parties previously, at either the national or local levels, concerning the matters covered within this Handbook.
The policies and procedures contained in this Handbook reflect the parties' full and complete agreement on the matters contained and addressed herein. No further obligation to consult, confer, or negotiate, either upon the substance or impact and implementation of any decision or action, shall arise upon the exercise of any provision, procedure, right or responsibility addressed or contained within this Handbook.

Respondent's Exhibit 3.


Concurring Opinion of Chairman Cabaniss:

      Consistent with my separate opinion in NTEU, Chapter 137, 60 FLRA 483 (2004) petition for review filed, No. 05-1338 (D.C. Cir. Aug. 24, 2005) (NTEU Chapter 137), I write separately to explain why I believe the Authority's precedent requires that the Revised National Inspectional Assignment Policy (RNIAP) be considered a matter "covered by" the parties' collective bargaining agreement and, as a result, there is no duty to bargain over the content of the RNIAP until the expiration of the parties' agreement.

      Section 7103(a)(8) of our Statute defines a "collective bargaining agreement" as "an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter[.]" There is nothing in this agreement or our precedent that limits this definition to collective bargaining agreements having a set term/duration, and the Authority has found that the "covered by" doctrine applies even to expired collective bargaining agreements, which by definition have no fixed term/duration. United States Border Patrol, Livermore Sector, Dublin, Cal., 58 FLRA 231, 233 (2002). There also is nothing to distinguish the NTEU Chapter 137 circumstances based on the fact that the matter at issue involves the content of an agency regulation, as nothing precludes negotiations over the content of an agency regulation from being considered as a collective bargaining agreement. In that regard, § 7117(a)(2) recognizes that the content of agency rules or regulations are fully negotiable to the extent there is no "compelling need" for that regulation (a concept not applicable here). There also is nothing that mandates a finding that the concept of being "entered into" requires the express mutual consent of the parties, as will be noted below.

      Section 7103(a)(12) of our Statute defines "collective bargaining" as the mutual obligation to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement upon bargaining unit conditions of employment. That definition does not require that mutual agreement upon the terms of a collective bargaining agreement must be reached: to the contrary, the definition explicitly recognizes that "the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession[.]" As also noted by the definition, there is no requirement that there be a signed document as part of this process.

      The record in the case underlying this litigation, United States Dep't of the Treasury, Customs Serv., Wash., D.C., 59 FLRA 703 (2004) (Member Pope concurring), aff'd sub nom NTEU v. FLRA, 414 F.3d 50 (D.C. Cir. 2005), indicates that the Agency submitted its [ v61 p278 ] proposed assignment policies to the collective bargaining process with NTEU under the Statute, as it was required to do. See, e.g., Fort Stewart Schools v. FLRA, 495 U.S. 641, 110 S. Ct. 2043 (1990). In response, the Union submitted a bargaining proposal, the Agency declared the proposal to be outside of its obligation to bargain under the Statute, and implemented its proposed changes to conditions of employment. As the parties proceeded into the collective bargaining process, I find no basis for distinguishing the facts of that case from other Authority precedent so as to preclude a finding that the Agency fulfilled its obligation to engage in "collective bargaining" as defined by our Statute: I also would find no basis for not concluding that this agency regulation on assignment policies is "an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter[,]" i.e., that this is a collective bargaining agreement.

The Authority has also recognized that a union may consent to a proposed change in conditions of employment, either explicitly through agreement or implicitly through action or inaction. Thus, an agency may implement changes in conditions of employment when a union fails to request bargaining within a reasonable period of time after being notified of proposed changes, fails to bargain, or fails to timely invoke the services of the [Federal Service Impasses Panel] (Panel), after the parties have reached impasse. See, e.g., [United States INS I, 24 FLRA 786, 790 (1986)]. In these situations, the agency has, in effect, satisfied its bargaining obligation.

United States Immigration & Naturalization Serv., Wash., D.C., 55 FLRA 69, 73 (1999) (INS) (emphasis in the original). Thus, a matter is "covered by" a collective bargaining agreement where a union fails to request bargaining at all, or if a union engages in the collective bargaining process up to the point of failing to timely invoke the services of the Panel. Yet, according to the majority in NTEU Chapter 137, somehow a condition of employment is not "covered by" the collective bargaining agreement where (as here) a union invokes it right to engage in collective bargaining but submits no negotiable proposal, at which time an agency may lawfully implement its change to conditions of employment because it has fulfilled its bargaining obligations under the Statute. See, e.g., United States Dep't of Hous. & Urban Dev., 58 FLRA 33 (2002) (HUD).

      I fail to see the legal distinction between those matters discussed by INS (where the condition of employment was considered a part of the collective bargaining agreement), and HUD, where the agency also "satisfied it bargaining obligation[,]" to quote the majority in the INS precedent noted, supra. As a result, I also fail to see the legal distinction between the circumstances discussed in INS and the circumstances in NTEU Chapter 137, where the majority did not find the condition of employment "covered by" a collective bargaining agreement. Based upon the above-noted precedent, as the Agency in NTEU Chapter 137 satisfied its collective bargaining obligation under the Statute, I find no basis for not concluding that there is a collective bargaining agreement establishing bargaining unit assignment policies. And again, the fact that there is no apparent term (agreed upon length of time) to this collective bargaining agreement is immaterial, as there is no such requirement in our Statute or our precedent mandating such in order to become a collective bargaining agreement.

      I thus would find that the issue of assignment policies is "covered by" this agreement, as I note no substantive rationale that would justify treating this agreement differently than any other agreement which has been reached through the collective bargaining process. As noted by the Authority in the INS decision, in each instance discussed an agency fulfills its bargaining obligation under the Statute, and any attempts to parse a distinction based upon the extent to which a union has agreed to the agreement is at odds with that decision and has no justifiable basis. Therefore, I find no legally compelling basis for treating the collective bargaining agreement here any differently. Consequently, there would be no obligation for the Agency to bargain over the RNIAP until the present collective bargaining agreement expires.


File 1: Authority's Decision in 61 FLRA No. 52 and Opinion of Chairman Cabaniss
File 2: ALJ's Decision


Footnote # 1 for 61 FLRA No. 52 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 52 - Authority's Decision

   Pursuant to the Homeland Security Act of 2002 (Pub. L. 107-296; 6 U.S.C. § 101 et seq.), the United States Customs Service transferred to the United States Department of Homeland Security, Customs and Border Protection. See 6 U.S.C. § 203(a)(1). Although some of the events giving rise to the complaints occurred before this change, we refer to the "Respondent(s)" as identified in the case caption throughout.


Footnote # 3 for 61 FLRA No. 52 - Authority's Decision

   This is the fifth case that has come before the Authority concerning the implementation of the Department of Homeland Security's revised national inspectional assignment policy. See United States Dep't of the Treasury, Customs Serv., Wash., D.C., 59 FLRA 703 (2004) (Member Pope concurring) (Customs Service), aff'd sub nom NTEU v. FLRA, 414 F.3d 50 (D.C. Cir. 2005); NTEU, Chapter 137, 60 FLRA 483 (2004) (Chairman Cabaniss concurring), motion for reconsideration denied, 61 FLRA 60 (2005); United States Dep't of Homeland Sec.,United States Customs and Border Prot., Port of Seattle, Seattle, Wash., 60 FLRA 490 (2004) (Chairman Cabaniss concurring) (Customs Service, Seattle, Wash.), motion for reconsideration denied, 61 FLRA 85 (2005); and United States Dep't of Homeland Security, United States Customs and Border Protection, 60 FLRA 496 (2004) (Chairman Cabaniss dissenting) (Customs and Border Protection).


Footnote # 4 for 61 FLRA No. 52 - Authority's Decision

   Although there are three named Respondents in these consolidated complaints, we will