DEPARTMENT OF THE TREASURY U. S. CUSTOMS SERVICE NEW YORK CUSTOMS MANAGEMENT CENTER ELIZABETH, NEW JERSEY and CHAPTER 161 NATIONAL TREASURY EMPLOYEES UNION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE TREASURY
U. S. CUSTOMS SERVICE
NEW YORK CUSTOMS MANAGEMENT
ELIZABETH, NEW JERSEY
CHAPTER 161 NATIONAL TREASURY
Case No. 00 FSIP 30
DECISION AND ORDER
Chapter 161, National Treasury Employees Union (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of the Treasury, U.S. Customs Service, New York Customs Management Center, Elizabeth, New Jersey (Employer).
Following an investigation of the request for assistance, arising from bargaining over the Employer’s proposal to change tours of duty at two private outlying airports located in Westchester and Teterboro, New York, respectively, the Panel directed the parties to participate in an informal conference with a Panel representative for the purpose of resolving the outstanding issues. The parties were informed that if no settlement were reached, the Panel representative would notify the Panel of the status of the dispute, including the parties’ final offers and her recommendations for resolving the impasse. The Panel would then resolve the dispute by taking whatever action it deemed appropriate, including the issuance of a binding decision.
In accordance with the Panel’s procedural determination, Supervisory General Attorney Ellen J. Kolansky met with the parties on March 30, 2000, at the Customs House, 6 World Trade Center, New York City, New York. Although the parties spent considerable time exploring several settlement options, no agreements were reached during the conference.(1) Mrs. Kolansky has reported to the Panel, and it has now considered the entire record, including the parties’ post-conference summary statements of position.
The New York Customs Management Center services the Newark International Airport (NIA) and the seaport, where it is responsible for enforcing Customs and related laws and collecting revenues from imports. Besides the terminals at Newark, the Employer has jurisdiction over four outlying private airports in New Jersey and New York. The Union represents some 800 bargaining-unit employees who are part of a nationwide, consolidated bargaining unit consisting of approximately 11,500. They hold positions such as customs inspector, import specialist, K-9 enforcement officer and administrator, at grades GS-5 through -11. Although the dispute could potentially have an impact on approximately 420 customs inspectors, only 31 are directly affected because they are assigned to Teterboro,(2) or participate in the overtime bidding pool for outlying airports. The affected inspectors are engaged in baggage inspection activities. At the national level, the master collective-bargaining agreement (MCBA), had an expiration date of September 30, 1999, but continues to remain in effect by mutual agreement. The parties are also covered by a National Inspectional Assignment Policy (NIAP) and a Local Inspectional Assignment Policy (LIAP) that, among other things, provide criteria for local parties to apply when negotiating over changes to tours of duty.
ISSUE AT IMPASSE
The parties disagree over the timing of the tour(s) of duty at the Teterboro Airport, whether port duty rotations(3) should be continued, and what, if any, adjustment should be offered for employees affected by the impact of the changes.
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Employer proposes the following:
1. Implement an additional tour at Teterboro Airport of 4 x 12 Mondays to Fridays which will be in addition to the current 8 x 4 tour at Teterboro. 2. Retain Saturday Port Duty Assignments at these locations.(4) To address the impact: 3. Implement above new tour on July 1, 2000, to allow for the following: (a) allow all Inspectors who earn overtime at the outside airports an opportunity to bid to other secondary pools.
The proposed tours will meet 92 percent of flights arriving from foreign countries on weekdays, and reduce overtime costs by $90,000 at Teterboro, the busiest of the 4 outlying airports. In this regard, for the 5-month period beginning on October 1, 1999, inspectors worked 1,040 regular hours and 1,134.75 overtime hours to meet 1,296 arriving aircraft. Overtime expenses for the period were $67,520.47.(5) Moreover, meeting the "regular and recurring daily workload" in this manner is consistent with NIAP criteria.(6)
In addition, doubling the number of tours so that virtually all arrivals are met during regular hours makes unnecessary previous proposals on reassigning inspectors from NIA to Teterboro.(7) Even though the noon to 8 p.m. tour the Union proposes would meet about 57 or 58 percent of all arrivals, an improvement over the current tour, it does not align with existing tours at NIA. If imposed by the Panel, it would restrict management’s flexibility in moving staff from NIA, where activity may be low, to Teterboro when personnel are needed. Such circumstances typically arise when, for example, weather problems reduce the workload of a NIA-assigned inspector, or a staffing shortage occurs at Teterboro because an assigned inspector is on leave or in training. Under the Union’s proposal, therefore, necessary inspection work arising from employee absences and/or flight arrivals outside of the single tour might have to be performed using overtime, and the thorny problem of reassignments would be left unresolved.
Regarding Saturday tours, it is more cost effective to maintain these regular tours rather than to rely on overtime, as would result under the Union’s proposal. Otherwise, on any given Saturday, two inspectors would likely be assigned overtime to cover arrivals during different parts of the day. Because overtime pay on Saturdays includes amounts for call back, commuting time, and double pay, the overtime expense for one arrival would be almost as much as for an entire regular tour and, if a second inspector had to be assigned later in the day, costs would far exceed that of a single tour.
With respect to the availability of overtime assignments for affected inspectors, the overtime budget for the Newark area is $6 million. In FY 1999, NIA processed 4,099,259 passengers and crew. Overtime money saved at the outlying airports, therefore, can be redirected to increase overtime assignments in baggage at NIA where the number of incoming flights is increasing dramatically. To effectively compete for overtime opportunities, employees would have until July 1, 2000, to take the initiative to bid on secondary overtime pools at NIA. Thus, affected employees would essentially be able "to follow the overtime money." The situation closely parallels a dispute the Panel resolved in the employer’s favor in 1998 where the employer also contended that overtime savings or "resources" would be transferred so that other enforcement activities could be increased.(8)
2. The Union’s Position
The Union proposes a "12 X 8 tour of duty at Teterboro and no Port Duty assignments at either outside airport." A "12 X 8" tour successfully balances the parties’ interests by meeting the workload, reducing overtime spending by $34,944, preserving some overtime earning opportunities, and supporting family life. As to the workload, the single tour is timed to meet the largest proportion of the workload, consistent with the criteria listed in Section 5A1a of NIAP. A review of the Employer’s figures, interpolated to show the average number of arrivals on any given weekday, confirms this conclusion; the averages vary from 8.5 arrivals on a Thursday to 10 on a Monday. On weekdays, between 8 a.m. and noon, the range of arrivals is .4 to .9; between 1 and 3 p.m., the range is 1.6 to 2.1; between 4 and 8 p.m., the range is 2.7 to 3.9; and between 9 and 11 p.m., the range is .7 to 1.6. These figures confirm that the single "12 X 8" tour is optimal for assigning an inspector on regular hours to meet the bulk of the traffic. These numbers also show, on a given day and time, no flights may arrive, so that the assigned inspector would then have little if any work. There is no justification, therefore, for two tours. As to the port duty assignments, air traffic is too irregular and light on Saturday to warrant retaining a regular tour. In this regard, the total number of arrivals on an average Saturday is only 4.6.
Some overtime earning opportunities should be retained at Teterboro because employees compete among themselves for overtime, and every employee does not necessarily qualify to participate in secondary overtime pools at NIA. The Employer’s position that the proposed tour changes will not cause employees to lose a significant share of available overtime earnings is speculative. Instead, affected employees are likely to be at a disadvantage when competing in secondary pools with the 100 or more employees assigned to NIA who are in both primary overtime pools associated with their positions, and some secondary pools. This is true even though the low earner is generally offered the next opportunity under the overtime distribution system.
The proposed tour is also consistent with the mandates in NIAP that parties evaluate a tour’s impact on "the quality of working and personal life." Ending the Teterboro tour at 8 p.m. "mean[s] the difference between mothers and fathers seeing their children before they go to sleep at night and being able only to see them in the morning before they [go] to school." Although "Customs inspectors recognize that they must work odd hours and tours, the fact remains that this change will take employees from normal working hours of 8 a.m. to 4 p.m. and put them on what is generally referred to as a second shift." The Employer’s proposal of two tours, "which it never seriously put forth until the day of the hearing, was a hardening [emphasis in original text] of its position and an attempt to have a more Draconian solution imposed on the employees than what it had been asking for before." The impact of continuing the Saturday tour of duty simply exacerbates the negative effect on family life of the 4 p.m. to midnight tour the Employer proposes.
Having carefully reviewed the evidence and arguments presented by the parties, we are persuaded that, on balance, the Employer’s proposal provides the better resolution to their dispute. In our view, the data provided by the Employer justify establishing a second tour at Teterboro Airport and maintaining Saturday port duty assignments. The two Monday-to-Friday tours would cover approximately 90 percent of arriving flights during inspectors’ regular hours, resulting in appreciable overtime savings, which the Employer intends to spend at NIA where inspection needs are greater. By contrast, savings generated by the tour changes the Union proposes, while representing an improvement over the status quo, would be less substantial. Similarly, while the data establish that Saturday traffic is relatively light at Teterboro and Westchester, canceling the port duty tours could nearly double staffing costs by forcing the Employer to rely completely on overtime. Moreover, the Monday-to-Friday tour the Union proposes does not match any existing NIA tour. Thus, to the extent agreements covering these parties permit regular-time reassignments from NIA to Teterboro, the Employer’s flexibility could be significantly curtailed, causing additional inefficiencies in its operations.
Given the Employer’s stated commitment to increase overtime opportunities at NIA and the complexity of the competitive overtime system in the Newark area, it is difficult to predict with certainty whether any of the affected employees will, in the final analysis, suffer a loss in overtime earnings. It is clear, however, that the Employer does not have the luxury of continuing to provide overtime opportunities at employees’ more favored locations, as the Union proposes, when the bulk of the work, several million arrivals, occurs elsewhere. The delay that the Employer proposes before implementing the change in tours represents a 3-month adjustment period during which affected inspectors may assess their circumstances and decide whether to bid on other secondary overtime pools and, if necessary, to seek appropriate training to ensure that they meet the qualifications for the pool. Unfortunately, since the adjustments the Union proposed for inspectors related to the timing and discontinuation of shifts, there are no Union impact proposals for the Panel to consider that counter or expand on what the Employer is offering. Finally, while the 4 p.m. to midnight and Saturday tours may have an adverse impact on family life, the Union acknowledges that Customs inspectors are on notice when they accept the position that "irregular" hours of work are a possibility, and some employees may even prefer the new schedules. Accordingly, we shall order the adoption of the Employer’s proposal.
Pursuant to the authority vested in it by the Federal Service Labor-Management Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2) the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer’s proposal.
By direction of the Panel.
H. Joseph Schimansky
April 25, 2000
1.Subsequently, however, the Employer accepted the Union’s proposal of a 12 noon to 8 p.m