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

 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