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59 FLRA No. 128
U. S. Dept. of the Treasury, Customs Service Washington, D.C. and NTEU (Hockenberry, Arbitrator) 0-AR-3636 (Decided February 27, 2004)
The grievance alleged that the Agency violated § 7116(a)(1) and (5) of the Statute by the manner in which it revised and implemented its assignment policy. The Arbitrator found that the Agency acted improperly by failing to negotiate with the Union prior to implementing changes in that policy and ordered the parties to engage in prospective bargaining on the matter. The Authority found that the Agency did not violate the Statute. Accordingly, the Authority granted the Agency's exceptions and set aside the award.
The Authority concluded that the Agency did not violate the Statute in implementing the revised National Inspectional Assignment Policy (NIAP). The Authority noted that the implementation of the revised NIAP constituted the Agency's exercise of its rights under § 7106(a) and § 7106(b)(1) of the Statute. As such, the Agency was not obligated to bargain over its decision. Rather, the Agency was obligated to bargain only over procedures which the Agency would observe in implementing the revised NIAP and appropriate arrangements for employees adversely affected by the Agency's decision to implement the revised NIAP. In other words, the Union's right to bargain in this case was limited to the impact and implementation of the proposed changes in the NIAP.
The Union's ground rule proposal conditioned negotiations over the impact and implementation of the revised NIAP on first bargaining over the expired master collective bargaining agreement. This proposal was not a matter falling within § 7106(b)(2) or § 7106(b)(3) of the Statute with respect to the implementation of the revised NIAP. As such, the proposal constituted a permissive subject of bargaining as to which the Agency could have elected, but was not obligated, to bargain. The Authority concluded that the Agency's implementation of the revised NIAP, over a proposal which it was not obligated to bargain, was, therefore, not a violation of the Statute. Because the Arbitrator erred as a matter of law in finding that the Agency improperly implemented the revised NIAP, the award was set aside.