DEPARTMENT OF THE TREASURY U.S. CUSTOMS SERVICE WASHINGTON, D.C. and 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
NATIONAL TREASURY EMPLOYEES UNION
Case No. 00 FSIP 135
DECISION AND ORDER
The National Treasury Employees Union (Union or NTEU) 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, Washington, D.C. (Employer, Customs, or Customs Service).
Following an investigation of the request for assistance, arising from negotiations over changes to the uniform policy, the Panel determined that the dispute should be resolved on the basis of written submissions from the parties. After considering the entire record, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a Decision and Order. Written submissions and rebuttal statements were made pursuant to this procedure, and the Panel has now considered the entire record.
BACKGROUNDThe Union represents a nationwide consolidated bargaining unit of approximately 11,000 employees, including 6,000 Customs inspectors who would be affected by this dispute. Bargaining-unit employees hold positions such as Customs inspector, import specialist, K-9 enforcement officer, and administrator, at grades GS-5 through -11. At the national level, the parties’ master collective-bargaining agreement (MCBA) expired on September 30, 1999, but remains in effect. The parties also negotiated a Memorandum of Understanding (MOU) in 1999 regarding the uniform policy.
ISSUES AT IMPASSE
The parties essentially disagree over: (1) whether Customs inspectors working at the same ports of entry should wear the same sleeve length at the same time of year; and (2) whether Customs inspectors should wear longevity hash marks on their Class 1, 2 and 3 long-sleeve uniform shirts.
POSITIONS OF THE PARTIES
1. Sleeve Length
a. The Employer’s Position
The Employer essentially proposes that all inspectors working at the same port wear the same sleeve length at the same time. In addition, local negotiations would be "strictly limited to the Customs uniform to be worn at each location and for each function," i.e., no mixing of short sleeve with long sleeve uniforms during specified times would be authorized at any port. The Employer "clearly seeks to change the status quo." A change is necessary because "at the national level" it "never intended the parties to mix and match sleeve length at any given port" when it previously permitted the local parties to negotiate over the matter. Adoption of its proposal would enhance the goal of creating a more professional law-enforcement image for Customs inspectors, and would promote the goal of "one policy, one image, one Customs." Moreover, "when an individual accepts employment as [a] Customs Inspector . . . that individual gives up the right to personal preference while wearing a Customs uniform." Other Federal law enforcement agencies, such as the Federal Protective Service, the Border Patrol, and the Secret Service, have similar policies. While it is true that employees of the Immigration and Naturalization Service and the Department of Agriculture, with whom Customs employees work, are not required to wear consistent sleeve lengths, Customs has "the discretion to hold its employees to a higher standard and is under no obligation to follow the policies and practices of other agencies regarding uniforms."
b. The Union’s Position
The Union proposes that the status quo be maintained, i.e., that local Union representatives continue to negotiate over the extent to which individual employees will be able to decide for themselves whether to wear a long or short sleeve shirt on a particular day. The Employer has not demonstrated a need to change current practices. In this regard, the Union met the Employer’s concerns regarding "consistency, uniformity and professionalism" in the parties’ 1999 MOU and their MCBA. The Employer’s "desire for ‘mandatory sleeve length continuity’ is outweighed by countervailing employee interests," such as individual preferences concerning comfort, fear of skin cancer and other diseases, movement from indoor to outdoor locations, physical ailments and deformities, etc., which could improve morale, dignity, appearance, and productivity. Furthermore, the Employer’s effort to limit local determinations regarding sleeve lengths is indicative of why National Performance Review satisfaction surveys conducted in 1998 and 1999 found that the Customs Service is rated last among Federal agencies in employee satisfaction. Finally, continuation of the status quo is consistent with the practices of employees in the Immigration and Naturalization Service and the Department of Agriculture who work side by side with Customs inspectors.
Having carefully reviewed the evidence and arguments presented by the parties in support of their positions, we conclude that the status quo should be maintained. In this regard, the Employer has failed to demonstrate that providing a measure of discretion to employees in the area of sleeve lengths has created any practical problems for the Customs Service. The fact that some management officials have agreed to permit individual employees such discretion through local agreements is further evidence that the kind of uniformity the Employer seeks is unnecessary to enhance inspectors’ professional image. Finally, the comparability data provided by the parties clearly support the Union’s position. Accordingly, we shall order its adoption.
2. Longevity Hash Marks
a. Employer’s Position
The Employer proposes the following wording:
Longevity hash marks are required on long sleeve Class 1, 2 and 3 uniform shirts. Hash marks will indicate 5-year increments of uniformed U.S. Customs service. The Agency will issue each full time inspector, Canine Enforcement Officer and Seized Property Specialist 12 longevity hash marks to affect this change. Employees will be reimbursed locally for the alteration expenses associated with affixing these items to the long sleeve shirts.(1)
Mandatory longevity hash marks would "standardize and promote a more consistent and professional law enforcement image." The wearing of hash marks also would project an image of pride in the agency, and be responsive to the many queries the Commissioner of Customs received from unit employees in the field at roundtable discussions conducted last year. The Union’s contention that the adoption of this proposal would result in increased costs to employees is not well taken because the Employer already has agreed to reimburse employees for the initial cost of affixing the hash marks on their shirts. Additionally, the Employer has recently substantially increased the annual uniform allowance. Finally, adoption of the proposal would be consistent with the practices at the Federal Protective Service and the New York Police Department.
b. Union’s Position
The Union proposes that "the wearing of hash marks [be] voluntary." There is no legitimate reason to change the status quo, whereby inspectors are not required to wear hash marks, nor any evidence that the wearing of hash marks would promote a more professional image to the public. On the other hand, there are good reasons not to adopt the Employer’s proposal. Hash marks could fray and become unsightly, thereby decreasing inspectors’ professional image and imposing an additional cost on employees who would have to buy new hash marks and have them sewn on. Moreover, morale could be adversely affected because "fellow employees, in addition to some of the traveling public, would be aware through the longevity hash marks . . . that certain long-term employees had failed to be promoted to the Senior Inspector position." For these reasons, the Employer’s proposal should be rejected.
After carefully reviewing the record presented by the parties, we are persuaded that the Union’s position provides the better resolution to their dispute over longevity hash marks. In our view, as in the first issue, the Employer has failed to demonstrate a need to change the status quo. In fact, the Union has offered unrebutted arguments as to why forcing employees to display their years of tenure with the agency could harm, rather than enhance, morale. Therefore, we shall order that the Union’s position be adopted.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations 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 Panels regulations, 5 C.F.R. §