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U.S. Federal Labor Relations Authority

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50:0656(85)AR - - Treasury, Customs Service, Pacific Region and NTEU - - 1995 FLRAdec AR - - v50 p656

[ v50 p656 ]
The decision of the Authority follows:

50 FLRA No. 85














July 31, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Louis M. Zigman filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules. The Union filed an opposition to the Agency's exceptions. In response to the Authority's request, the parties also filed supplemental briefs regarding their positions on the effect of title VI of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2170 (1993) (NAFTA Implementation Act).

The Union filed grievances contending that the Agency violated law and regulation by implementing a new program for reviewing documents to determine if cargo can be unloaded. The Arbitrator concluded that the grievances were arbitrable and that the Agency violated applicable law by not assigning customs inspectors to board vessels to review the documents.

The Agency contends that the award is deficient under section 7122(a)(1) and (2) of the Statute. In addition, the Agency has filed a motion requesting that the Authority find that the award in this case is deficient under the court's decision in U.S. Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994). For the following reasons, we conclude that the award is contrary to the Statute and we set it aside.

II. Arbitrator's Award

Under Federal law applicable at the time of the events in this case, vessels entering the country could immediately unload their cargo pursuant to a procedure known as "preliminary entry." A customs inspector would board the vessel and review the documentation required by 19 U.S.C. § 1448 for preliminary entry.(1) When vessels required preliminary entry between 5 p.m. and 8 a.m. or on Sundays or holidays, the boarding inspectors would receive overtime compensation under 19 U.S.C. § 267. In July 1984, in its Pacific Region, the Agency established a program known as radio preliminary entry (RPE) in which the vessel's agent delivered the required documentation to the Agency and the boarding of vessels by customs inspectors was eliminated as part of the preliminary entry procedure.

In 1991 and 1992, the Union filed grievances, which were submitted to arbitration, asserting that the RPE program violated 19 U.S.C. § 1448 and implementing regulations. Relying on the arbitration award and the Authority's decision in U.S. Department of the Treasury, United States Customs Service and National Treasury Employees Union, 46 FLRA 1433 (Customs Service), reconsideration denied, 47 FLRA 475 (1993),(2) the Arbitrator determined, as relevant here, that the grievances were arbitrable. The Arbitrator also found that the RPE program violated 19 U.S.C. § 1448 because it eliminated the boarding of vessels by customs inspectors as part of the preliminary entry procedure. As a remedy, the Arbitrator ordered the Agency to comply with applicable laws and regulations and to make employees affected by the RPE program whole for their loss of overtime earnings.

III. Positions of the Parties (3)

In its exceptions, the Agency contends that the Arbitrator's arbitrability determination is deficient and that the award conflicts with 19 U.S.C. § 1448 and section 7106(a) of the Statute. The Union asserts that, as found by the Arbitrator, the grievances were arbitrable and the RPE program violated 19 U.S.C. § 1448.

In addition, the Agency has filed a motion requesting that the Authority find that the award in this case is beyond the Arbitrator's jurisdiction under the court's decision in U.S. Customs Service v. FLRA.(4) In opposition, the Union claims that U.S. Customs Service v. FLRA was incorrectly decided. The Union asserts that the Authority should issue a decision refusing to follow U.S. Customs Service v. FLRA and file a petition for enforcement of its decision with the U.S. Court of Appeals for the Ninth Circuit.

IV. Analysis and Conclusions

In U.S. Customs Service v. FLRA, which involved a program similar to the RPE program, the U.S. Court of Appeals for the District of Columbia Circuit determined that 19 U.S.C. § 1448, before its 1993 amendment, was not directed at employee working conditions and that, consequently, the grievance was outside both the arbitrator's and the Authority's jurisdiction.

We acquiesce in the court's conclusion that 19 U.S.C. § 1448, before its 1993 amendment, is not a law "affecting conditions of employment" under section 7103(a)(9)(C)(ii) of the Statute, but rather is "a statute governing international trade . . . ." U.S. Customs Service v. FLRA, 43 F.3d at 689.(5) In reaching this decision, we recognize the futility of adhering to the Authority's contrary holding in Customs Service, which the court reversed in U.S. Customs Service v. FLRA. Specifically, unless the Authority sought to enforce a decision adhering to Customs Service in another Federal court of appeals, simply following the Authority's Customs Service decision would invite summary reversal by the D.C. Circuit.

After careful deliberation, we decline to follow the course, urged by the Union, of petitioning the U.S. Court of Appeals for the Ninth Circuit, under section 7123(b) of the Statute, for enforcement of the Authority's order in this case. Although the Authority has sought direct judicial enforcement of its orders under section 7123(b), it has never done so in cases resolving exceptions to an arbitration award. The Authority has confined its petitions for enforcement in this manner in recognition of Congress' intent that there should be only limited judicial review of arbitration awards. S. Rep. No. 1272, 95th Cong., 2d Sess. 153 (1978) (Conference Report). Although we acknowledge that there may be circumstances that would justify departure from this practice, we conclude that such circumstances are not present in this case. In view of the fact that section 1448 has been amended and, consequently, the issue presented in this case is not likely to arise again, we will not depart from the Authority's consistent prior practice and seek enforcement here.

Applying this conclusion, we find that the grievances were not arbitrable and that the award ruling otherwise is contrary to the Statute. Accordingly, we grant the Agency's motion and set aside the award.(6)

V. Decision

The award is set aside.

(If blank, the decision does not have footnotes.)

1. At the time of the Arbitrator's award, 19 U.S.C. § 1448 pertinently provided:

(a) Except as provided in section 1441 . . . , no merchandise, passengers, or baggage shall be unladen from any vessel . . . arriving from a foreign port or place until entry of such vessel . . . has been made and a permit for the unlading of the same issued by the appropriate customs officer: Provided, That the master may make a preliminary entry of a vessel by making oath or affirmation to the truth of the statements contained in the vessel's manifest and delivering the manifest to the customs officer who boards such vessel . . . .

Effective December 8, 1993, title VI of the NAFTA Implementation Act amended existing law to change preliminary entry requirements and procedures. Among other things, the NAFTA Implementation Act transferred from section 1448 to section 1434 the authority for granting preliminary entry and amended section 1448 to authorize the Customs Service to electronically transmit to vessels permits allowing them to unload their cargo without the necessity of customs inspectors boarding the vessel.

2. After the Arbitrator's award, the Authority's decision in Customs Service was reversed by the court in U.S. Customs Service v. FLRA.

3. In response to our request to state their positions on the effect of the NAFTA Implementation Act, both parties stated that the Act should have no effect on the resolution of the Agency's exceptions. We agree. In Landgraf v. USI Film Products, 114 S. Ct. 1483, 1499 (1994) (Landgraf), the U.S. Supreme Court stated that, in determining whether a statute operates "retroactively" it is necessary to ask whether the new provision "attaches new legal consequences to events completed before its enactment." The Court held that a statute should not be applied to attach such consequences absent clear congressional intent to that effect. Id. at 1505. Application of the NAFTA Implementation Act to the events in this case would have a retroactive effect within the meaning of Landgraf. See id. (a statute has retroactive effect if "it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed"). We find nothing in the NAFTA Implementation Act to indicate that Congress intended title VI of that statute to operate retroactively.

4. At the Agency's request, we had deferred processing of this case until resolution of its petition for review of Customs Service.

5. We express no view at this time on the court's statement that, under the Statute, a law may be the subject of a grievance only if that law has "been issued for the very purpose of affecting the working conditions of employees--not one that merely incidentally does so." U.S. Customs Service v. FLRA, 43 F.3d at 689. Accordingly, we reserve for an appropriate case a reconsideration of the interpretation of the phrase "any law affecting conditions of employment" in section 7103(a)(9)(C)(ii) of the Statute.

6. In view of this decision, we do not address any other contentions of the Agency.