U.S. Customs Service, Washington, D.C. v. Federal Labor Relations Authority

• Decision Date: 23 August 1988
• Docket Number: No. 87-1128,87-1128
• Citation: 854 F.2d 1414
• Parties: 129 L.R.R.M. (BNA) 2238, 272 U.S.App.D.C. 197 UNITED STATES CUSTOMS SERVICE, WASHINGTON, D.C., et al., Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Treasury Employees Union, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1414

854 F.2d 1414

129 L.R.R.M. (BNA) 2238, 272 U.S.App.D.C. 197

UNITED STATES CUSTOMS SERVICE, WASHINGTON, D.C., et al., Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Treasury Employees Union, Intervenor.

No. 87-1128.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 4, 1987.

Decided Aug. 23, 1988.

Pamela P. Johnson, Atty., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., William E. Persina, Deputy Sol., and Arthur A. Horowitz, Associate Sol., Federal Labor Relations Authority, were on the brief for respondent.

Cary P. Sklar, with whom Lois G. Williams was on the brief for intervenor, National Treasury Employees Union. Gregory O'Duden, also entered an appearance for intervenor.

Thomas M. Bondy, Atty., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., William Kanter, Atty., Dept. of Justice, and Joel W. Nomkin ^*, Atty., Dept. of Justice, were on the brief for petitioners.

Before ROBINSON, EDWARDS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

The Federal Labor Relations Authority ordered petitioner, the United States Customs Service, to bargain with the National Treasury Employees Union over the Union's proposal to delay the implementation of a new program to streamline the inspection of vessels arriving at Pacific ports. The Union proposed that the Customs Service forego implementing the new program "pending a study to be carried out, within six months, by NTEU to evaluate on [sic] the impact of [the program] on bargaining unit employees." The FLRA held that the proposal "does not interfere with management's substantive right to implement the [program]," and is therefore a negotiable "procedure" under section 701(b)(2) of the Federal Service Labor-Management Relations Act, 5 U.S.C. Sec. 7106(b)(2) (1982). United States Customs Service, 25 F.L.R.A. 248, 253 (1987). We conclude that the FLRA erred, and therefore grant the petition for review.

I. BACKGROUND

Pursuant to the Tariff Act of 1930, 19 U.S.C. Sec. 1431 (1982), and the regulations implementing it, 19 C.F.R. Part 4 (1987), all vessels arriving from foreign origins are required to present certain documents to Customs inspectors before any passengers or cargo are taken on board or leave the ship. Because this requirement of "formal entry" often causes long delays, a vessel may request a streamlined "preliminary entry," which enables it to begin loading or unloading prior to completing a formal entry. See 19 U.S.C. Sec. 1448(a) (1982); 19 C.F.R. Sec. 4.8 (1987).

To effect a preliminary entry, it has been the practice for a Customs inspector to board the vessel upon its arrival, inspect the manifest and other pertinent documents, and perform other duties to ensure that vessel, crew, and cargo appropriately may enter the United States. On May 9, 1984, however, the Customs Service issued a directive announcing its intention to implement a new preliminary entry program in its Pacific Region, which consists of ports in California, Oregon, Washington, and Hawaii. The agency notified NTEU, which represents Customs inspectors in the region, to that effect.

Under the new program, referred to as the Radio Preliminary Entry Test (RPET) Program, a vessel meeting certain conditions not pertinent here may request and obtain preliminary entry before its final arrival at port. This is accomplished by the vessel transmitting the information on its manifest, by radio or other electronic means, to a representative on shore who, in turn, files that information with the Customs Marine Office.

The RPET was initiated as a one-year experiment. The idea was to make more efficient use of Customs inspectors, the better to deal with the agency's increasing workload. According to an agency official, the RPET program enables the Service "to avoid assigning an Inspector to go down and physically spend time aboard the ship ... so that [it] can more effectively use him in the clearance of cargo and also in other enforcement type activities...."

In response to the agency's May 9 notice, NTEU informed the Customs Service that it wanted "to negotiate the substance, impact, and implementation" of the RPET. The agency declined to bargain.

Pursuant to the Federal Service Labor-Management Relations Act, it is "an unfair labor practice for an agency ... to refuse to consult or negotiate in good faith with a labor organization" over conditions of employment. 5 U.S.C. Sec. 7116(a)(5) (1982). The duty to bargain thus covers "personnel policies, practices, and matters ... affecting working conditions," 5 U.S.C. Sec. 7103(a)(14) (1982), except insofar as bargaining would be inconsistent with certain reserved authority, or "management rights." These rights are defined in section 701(a) of the Act, 5 U.S.C. Sec. 7106(a) (1982), as:

the authority of any management official of any agency--

(1) to determine the mission, budget, organization, number of employees, and ...

(2) in accordance with applicable laws--

* * *

* * *

(B) to assign work ... and to determine the personnel by which agency operations shall be conducted....

This relatively straightforward reservation of rights to management, free of the duty to bargain, is vastly complicated, however, by Sec. 701(b), 5 U.S.C. Sec. 7106(b) (1982), which provides in relevant part:

Nothing in this section shall preclude any agency and any labor organization from negotiating--

(1) at the election of the agency, ... the technology, methods, and means of performing work; [or]

(2) procedures which management officials of the agency will observe in exercising any authority under this section....

The Customs Service invoked this management rights provision when it refused to bargain with NTEU, stating that the Union's proposal "is not negotiable because it would interfere with the agency's right to determine the methods and means of performing work." NTEU did not accept the agency's negotiability determination, and instead made several specific proposals, the only one of which at issue in this case provides:

That the implementation of the [RPET] be withheld pending a study to be carried out, within six months, by NTEU to evaluate on [sic] the impact of the directive on bargaining unit employees.

The agency also considered this specific proposal to be nonnegotiable because, as it wrote to the Union, it was "but an attempt to delay submission of [the Union's] proposals for up to six months." Accordingly, the agency refused to bargain with the Union and implemented the RPET on July 1, 1984.

NTEU charged that the Customs Service committed an unfair labor practice by implementing the RPET unilaterally, without first bargaining with the Union. The FLRA's Regional Director issued a complaint, and the case was heard before an Administrative Law Judge (ALJ). The ALJ concluded that the Union's proposal was negotiable and upheld the complaint, reasoning as follows:

[T]he thrust [of the Union's proposal] is that implementation of the radio entry program be withheld pending a study within 6 months by the Union on its impact upon [bargaining] unit employees. This proposal, insofar as it concerns management's procedures in establishing RPET, does not prevent the agency from acting to exercise its authority under Section 7106.... While the reason for deferring implementation may not meet with management's approval, the basic request of [the Union] is for a delay thereof up to 6 months. As such it does not interfere with management's rights under [section 7106].

United States Customs Service, ALJ Decision, 25 F.L.R.A. 260, 269 (1985).

The FLRA affirmed by a divided vote. The majority only restated the obvious (the proposal is "not intended to preclude the Agency from carrying out the proposed RPET program, but merely delays the implementation pending a Union study to be completed within six months"), and then, like the ALJ, concluded that "[i]t does not interfere with management's substantive right to implement the RPET," United States Customs Service, 25 F.L.R.A. at 253; it relied upon citations to its prior decisions as the only clues to its reasoning. Chairman Calhoun, dissenting, noted that the proposal "acts as an absolute bar to implementation until the Union completes its study, even where the Agency determines that implementation before that time is necessary." The proposal therefore, he concluded, substantially interferes with "the Agency's right to implement a new program to accomplish its mission in the most efficient and effective manner [which] necessarily includes the right to determine when to implement the new program." Id. at 258. The Customs Service petitioned for review in this court, and the FLRA cross-applied to enforce its order.

II. ANALYSIS

The central issue in this case is whether the NTEU's proposal is a "procedure" over which the Customs Service is statutorily required to bargain. The FLRA's argument is that the proposal is procedural under the "acting at all" standard that it explicated in United States Customs Service Region VIII, 2 F.L.R.A. 25 (1979). Under this standard, the FLRA contends, a proposal that merely delays an agency's exercise of its reserved management rights, but does not prevent the agency from "acting at all," is a negotiable "procedure" within the meaning of section 7106(b)(2).

In Department of Defense v. FLRA, 659 F.2d 1140, 1153 (D.C.Cir.1981), we approved the "acting at all" standard as "a reasonable and natural construction of the statutory language, rendered by the agency given responsibility for administering the statute." Application vel non of this standard, however, depends entirely upon how the proposal at issue is characterized. If it can fairly be regarded as "purely procedural," then it is negotiable "unless the proposal, if adopted, would prevent the agency from 'acting at all,' " National Fed'n of Fed. Employees, Local...