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

 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.