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8 FLRA NO. 1

NATIONAL TREASURY EMPLOYEES UNION

                  Union

          and

U.S. CUSTOMS SERVICE,
WASHINGTON, D.C.

                  Agency

Case No. 0-NG-281

 

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Federal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) (5 U.S.C. 7101 et seq.), and raises the question of the negotiability of three Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.

Union Proposal I

Hats may only be required when working out of doors, or where headgear is required for safety, excluding uniformed personnel performing vehicle inspection. (Only the underlined portion is in dispute.) 1

The Authority agrees with the Agency that the underlined portion of this proposal is negotiable only at the election of the Agency pursuant [ v8 p3 ] to section 7106(b)(1) of the Statute. 2 Since the Agency has elected not to negotiate, the proposal is outside the duty to bargain. More specifically, the Authority concludes that the underlined portion of Union proposal I concerns "the means of performing work" within the meaning of that phrase in section 7106(b)(1). The record in this case shows that the principal purpose of the Customs Service's law enforcement uniform is to enable the public to readily identify the wearer as a representative of Government and that the wearing of a hat promotes this purpose. Further, law enforcement is enhanced. See National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255 (1979). Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the portion of the Union's petition for review relating to Union proposal I be, and it hereby is, dismissed.

Union Proposal II

If a member of the public complains about the actions of any employee, the affected employee will only be required to provide the complainant with his or her badge number. An employee who does not have a badge number will refer the complainant to his supervisor. If the complaining party persists in attempts to obtain the affected employee's name, the employer will not disclose the employee's identity without his consent. The supervisor will provide the complaining party with the employee's badge number and the appropriate district/area director's name and address and office telephone number. (Only the underlined portion is in dispute.)

In agreement with the Agency, the Authority concludes that the underlined portion of the proposal is negotiable only at the election of the Agency under section 7106(b)(1) of the Statute, and the Agency has elected not to negotiate. The record shows that the Agency's [ v8 p4 ] commitment to courteous treatment of the traveling public is central to effectively accomplishing its law enforcement function. By virtue of the public being able to identify with whom they are dealing, i.e., by requesting their names, courteous treatment is furthered. Thus, the disclosure of an employee's name, upon request, is a "means" of furthering the performance of the Agency's work. See U.S. Customs Service, Region VIII, San Francisco, California, supra. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the portion of the Union's petition for review relating to Union proposal II be, and it hereby is, dismissed. 3

Union Proposal III

(b) The following matters are also specifically excluded from the coverage of this article when an affected employee at his option, elects to appeal a statutory appeal procedure:

(3) All other statutory appeals procedures including appeals to the Special Counsel contesting any prohibited personnel practice. (Only the underlined portion is in dispute.)

In agreement with the Agency, the Authority concludes that the underlined portion of Union proposal III is inconsistent with law, i.e., section 7121(a)(1) of the Statute. 4 The underlined portion of this proposal bears no material difference from the provision found to be outside the duty to bargain in American Federation of Government [ v8 p5 ] Employees, AFL - CIO, Local 2955 and National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa, 5 FLRA No. 86 (1981). In that case, the Authority found that a provision which purported to grant to bargaining unit employees the option to choose either the negotiated grievance procedure or a statutory procedure with respect to any matter covered by the grievance procedure was outside the duty to bargain because it was inconsistent with section 7121(a)(1) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the portion of the Union's petition for review relating to Union proposal III be, and it hereby is, dismissed.

Issued, Washington, D.C., February 4, 1982

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v8 p6 ]

FOOTNOTES

Footnote 1 The Agency takes the position that Union proposal I in its entirety is before the Authority for a negotiability decision. However, the record discloses that the parties entered into an agreement covering the first portion (the nonunderlined part) of Union proposal I; thus, the dispute as to that portion of the proposal has been rendered moot.

Footnote 2 Section 7106(b)(1) provides, in relevant part, as follows: 7106. Management rights (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (1) at the election of the agency, on the . . . means of performing work(.)

Footnote 3 In light of this conclusion, the Authority finds it unnecessary to address the Agency's contention that the disputed language in the proposal violates the Freedom of Information Act, 5 U.S.C. 552.

Footnote 4 Section 7121(a)(1) provides: 7121. Grievance procedures (a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d) and (e) of this section, the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage.

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