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

 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