11:0017(9)NG - NTEU and Treasury, Customs Service, Honolulu, HI -- 1983 FLRAdec NG

 11 FLRA No. 9
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF THE
 TREASURY, U.S. CUSTOMS
 SERVICE, HONOLULU, HAWAII
 Agency
 
                                            Case No. O-NG-204
 
                   ORDER DISMISSING PETITION FOR REVIEW
 
    This case comes before the Authority pursuant to section
 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute
 (the Statute).  For the following reasons it has been determined that
 the Union's petition for review must be dismissed.
 
    The record reveals that the Union submitted to the Agency proposals
 concerning the starting and quitting times of newly established shifts
 and the length of lunch periods to be established in connection
 therewith.  The Agency essentially alleged that these proposals were
 outside the duty to bargain because the Agency under section 7106(b)(1)
 of the Statute had no obligation to bargain on the numbers, types, and
 grades of employees or positions assigned to any organizational
 subdivision, work project, or tour of duty.  The Union then filed this
 petition for review with the Authority.  In its petition, the Union
 notified the Authority that it had previously filed an unfair labor
 practice charge with the Authority in connection with this matter and,
 pursuant to section 2424.5 of the Authority's Rules and Regulations,
 requested that the Authority process the unfair labor practice charge
 first and stay the negotiability appeal pending resolution of the
 charge.  The Union's request was granted.
 
    Subsequently, the Authority issued its decision with respect to the
 matters at issue in the related unfair labor practice charge.  In
 Department of the Treasury, United States Customs Service, Region VIII,
 San Francisco, California and National Treasury Employees Union, 9 FLRA
 No. 68 (1982), the Authority adopted the Administrative Law Judge's
 conclusion that "the Respondent (Agency) violated section 7116(a)(1) and
 (5) of the Statute by its refusal to bargain over impact and
 implementation proposals, i.e., the starting and quitting times and
 lunch periods to be established in connection with the newly established
 shifts." In this regard, the Authority adopted the Judge's conclusion
 that the proposals were not inconsistent with management's rights under
 section 7106(b)(1) of the Statute and his recommendation that the Agency
 be required to negotiate, upon request, with the Union regarding the
 impact and implementation of the Agency's decision to establish new
 shifts.  /1/
 
    The proposals in dispute herein are substantially identical to the
 proposals found to be within the Agency's duty to bargain in the related
 unfair labor practice charge and the Agency has not raised any matters
 here which were not raised before the Judge or Authority in the unfair
 labor practice proceeding.  Under these circumstances, the negotiability
 issues raised in this appeal were rendered moot by the Authority's
 decision in U.S. Customs Service, Region VIII, 9 FLRA No. 68, adopting
 the Judge's conclusion that the proposals concerning the starting and
 quitting times of shifts and length of lunch periods are within the
 Agency's duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  /2/ Issued, Washington, D.C., January 7, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Nevertheless, the Union has filed an appeal seeking review of the
 Authority's Decision and Order because the Authority refused to order a
 return to the status quo ante.  NTEU v. FLRA, incorrectly docketed as
 NTEU v. U.S. Customs Service, Reg. VIII, No. 82-7534 (9th Cir. Sept. 17,
 1982).
 
 
    /2/ Based on the record, there appears to be some dispute as to
 whether a proposal dealing with compressed work schedules was alleged to
 be nonnegotiable.  In any event, during the pendency of this appeal, the
 Federal Employees Flexible and Compressed Work Schedules Act of 1982,
 Pub. L. No. 97-221, 96 Stat. 227 (1982), became effective.  Because this
 Act differs substantially in some respects from its predecessor, the
 Federal Employees Flexible and Compressed Work Schedules Act of 1978,
 Pub. L. No. 95-390, 92 Stat. 755 (1978), as amended by Pub. L. No.
 97-160, 96 Stat. 21 (1982), the Authority has determined that
 negotiability disputes as to proposals concerning flexible or compressed
 work schedules which arose prior to the effective date of the successor
 law have been rendered moot.  See National Treasury Employees Union,
 Chapter 217 and Department of Health and Human Services, Region II, 10
 FLRA No. 18 (1982).