DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE WASHINGTON, D.C. and NATIONAL BORDER PATROL COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
NATIONAL BORDER PATROL COUNCIL,
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 01 FSIP 81
DECISION AND ORDER
The Department of Justice, Immigration and Naturalization Service, Washington, D.C. (Employer) 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 National Border Patrol Council, American Federation of Government Employees, AFL-CIO (Union).
Following an investigation of the request for assistance, arising from negotiations over canine handler policies, the Panel determined that the dispute should be resolved through an informal conference with a Panel representative. The parties were advised that if no settlement was reached, the Panel representative would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the issues. After considering the report, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to the Panel’s determination, Panel Representative (Staff Attorney) Marianne Perciaccante met with the parties on June 22, 2001, at the Panel’s office in Washington, D.C. The parties were able to resolve several issues concerning canine handlers, but failed to reach a complete voluntary settlement of their dispute. The parties each submitted their final offers and supporting statements on the three remaining issues.(1) Ms. Perciaccante has reported to the Panel, and it has now considered the entire record.
The Employer administers and enforces the immigration and naturalization laws of the United States, including securing the Nation's borders and apprehending illegal immigrants. The Union represents approximately 8,500 General Schedule and Wage Grade employees, the overwhelming majority of whom are border patrol agents at grades GS-5 through -11. They are considered law enforcement officers for retirement purposes. Other bargaining-unit employees work as detention enforcement officers, communications specialists, electrical technicians, and secretaries. The dispute could potentially affect 7,400 Border Patrol agents, who would be eligible to apply to participate in the canine handling program. At any given time, there are approximately 200 canine handlers. Assignment to the canine handler position requires Border Patrol agents to perform a new collateral duty but does not, in itself, involve a promotion to a higher grade. The parties' master collective bargaining agreement (MCBA), which was due to expire in October 1998, remains in effect until a successor agreement is implemented; successor agreement negotiations, which started in 1997, are ongoing.
ISSUES AT IMPASSE
The parties disagree over: (1) whether the parties’ agreement should appear in a single "policy" or whether a portion of it should be memorialized in a separate Memorandum of Understanding (MOU); (2) selection procedures for canine handlers; and (3) whether canine handlers should be permitted to wear coveralls when performing work that is likely to soil their uniforms.
POSITIONS OF THE PARTIES
1. Single Document or Separate MOU
a. The Union’s Position
The Union proposes that "[a]ll matters relating to the canine unit will be placed in the document entitled U.S. Border Patrol Canine Unit Policy and Procedures," which, like an MOU, is a negotiated agreement signed by the parties. Preliminarily, the FLRA has found that proposals such as this one are negotiable because they "do not conflict with any law, rule, or regulation," and are "in the nature of ground rules." As for the merits of the proposal, it makes no sense to remove sections from the agreement and place them in a separate document. In fact, removing sections from the policy could create confusion because supervisors and employees who read the policy may believe that its provisions embody the parties’ full agreement on the subject. Moreover, "the parties have historically placed most agreements concerning policy and procedure matters in a single document." The Employer’s argument that including all agreed-upon items within a single document would "somehow" create substantive rights for the public "is completely without foundation and merit."
b. The Employer’s Position
The Employer proposes that the following Sections of the parties’ agreement be placed in a separate document: Section 5, which concerns selection of service canine handlers; Section 11f, which states that canine handlers "will be subject to callouts at any time," but will not be required to report for duty unless they are in standby status; the last paragraph of Section 11k, which concerns overtime pay for canine handlers; Section 12, which concerns performance work plans for canine handlers; and Section 13, which concerns uniforms. These issues all involve "personnel policies, practices and working conditions" (PPPWC), on which "[m]anagement does not want to include excessive details . . . in policies that primarily relate to how [it] conduct[s] the business of the agency with its clients." One concern is that putting these issues in the policy could unintentionally create legal rights for members of the public who come into contact with the dogs and their handlers. In this regard, "[t]he Service is concerned that an issue such as whether [it] properly announced and selected an agent to be a handler will become a line of attack for smugglers to cast doubt on the credibility of a canine team’s finding of probable cause in court." Moreover, the section on kenneling dogs at home should be in a separate MOU because "its inclusion in this policy gives a ready line of attack for defendants to challenge the credibility of the canine team in any situation where for any number of valid reasons, the dog is not kenneled at home." Since all canine handlers and their supervisors will receive copies of both the policy and the MOU, everyone should be aware of his or her rights and duties. Finally, the separation is justified because the parties have a past practice of creating a policy and a separate MOU.
Having carefully reviewed the record presented by the parties, we shall order the adoption of the Union’s proposal to resolve the dispute. On balance, the Union’s proposal provides the better resolution of this matter because a single document would be less confusing to employees and does not appear to be inconsistent with the parties’ past practices. In our view, the Employer’s concerns regarding the possible adverse legal consequences of placing the entire agreement in one document appear to be purely speculative. In this regard, the Employer has provided no evidence that the approach advocated by the Union has ever been the basis of third-party legal action. Additionally, the Employer concedes that in the past, when the parties have created a separate MOU, it has generally concerned the means by which a policy will be implemented. In this case, however, the issues that the Employer seeks to remove from the policy appear to go beyond this. Furthermore, the parties’ recent agreement regarding soft body armor, which consists of both a policy document and an MOU, includes in the policy the kind of issues, such as payment of Union representative’s travel expenses, that the Employer argues in this case belong in the MOU.
2. Selection Procedures
a. Union’s Position
The Union’s proposal on the issue of selection procedures contains the following five Sections: (1) If factors, qualifications, and/or experience that are not set forth in the notice to employees soliciting interest in a canine handler position are considered in the selection process, all candidates shall be advised in writing of such factors, qualifications, and/or experience, and shall be afforded an additional 20 days in which to prepare and submit a supplemental application. Employees shall be afforded sufficient duty time to prepare and submit such applications; (2) The Union shall be provided a copy of all applications for the canine handler program; (3) If a candidate is interviewed orally as part of the selection process, all candidates who possess similar qualifications shall also be interviewed orally; (4) The Union shall be provided at least 2 working days’ advance notice of all oral interviews and be allowed to have an observer present on official time; and (5) The Union shall be provided with a written justification for each selection, outlining detailed reasons why that individual was selected over other candidates.
This proposal is intended to ensure that selections will be conducted fairly. With respect to the first section, because the Union has agreed to allow the Employer the flexibility of announcing canine handler positions without specifying necessary qualifications, the Union wants to "ensure that all candidates for the collateral duty canine handler or canine instructor positions are afforded equal opportunity to outline their relevant qualifications." The Union is also seeking copies of all applications for the program, the right to sit in on interviews, and a written justification of each selection in order to assure employees that selections are fair. With respect to the part of the proposal requiring interviews for similarly-qualified employees, its adoption would "ensure equity in the selection process." The Employer would have discretion to determine which applicants possess similar qualifications. Finally, Sections 3, 4, and 5 "are intended to facilitate the Union’s ability to oversee the selection process in its role as the exclusive representative of all bargaining-unit employees," and would "tend to make both the process and the perception thereof more fair and equitable."
b. Employer’s Position
The Panel should order the Union to withdraw its proposal because, among other things, it has cited no instances in which the Employer has been unfair in the past when it has selected Border Patrol agents to be canine handlers. In addition, Section 1 of the proposal could indefinitely delay selections for canine handlers, and would be hard to implement since "[i]ntangible factors" are important in selecting "the best person to be a canine handler, but are very difficult to define." Additionally, if the first section were adopted it could prevent the Employer from making timely selections when dogs become available on short notice. Section 2 also presents a problem because, to comply with Privacy Act requirements, "the [U]nion proposal would unduly encumber the selection process and become an administrative burden on management." Similarly, Section 5, by requiring the Employer to provide the Union with a detailed explanation of why each rejected applicant was not selected, would be administratively burdensome. Moreover, Sections 2 and 5 are unnecessary because the Union alternatively may obtain the information it needs to monitor the fairness of the Employer’s selection process under the provisions of section 7114(b)(4) of the Statute. Section 3 is unreasonable because a supervisor may deem it necessary to interview only one candidate when the applicant has similar qualifications to others but is not known to the supervisor. In addition to the fact that the Union has failed to demonstrate that any of its proposed procedures are necessary, Section 4 appears to affect management’s right to assign work because it requires the Employer to assign a Union representative to sit in on interviews. Finally, assignments to canine handling duties "are not promotions or assignments to positions with a higher promotion potential," but are akin to providing agents with "a highly effective tool." The Employer does not have "elaborate selection procedures," as proposed here by the Union, "for the purpose of assigning tools to some but not all agents."
After thoroughly considering the evidence and arguments presented by the parties regarding this issue, we are persuaded that their impasse should be resolved on the basis of compromise wording. The compromise provides as follows: (1) if one candidate is interviewed orally for a canine handler position, all candidates shall be interviewed orally; (2) the Employer shall inform the Union of the number of applicants for a position, and who was selected; and (3) upon request from a non-selected candidate, the Employer shall explain to her or him why a particular candidate was selected over others. In our view, the compromise balances the legitimate interests of both parties. In this regard, without evidence that unfair selections have occurred in the past, the concerns expressed by the Union supporting the adoption of Section 1 are outweighed by the unquestionable delay and administrative burden it would create. Requiring all applicants to be interviewed, if one of them is, ensures equal treatment, and should not be onerous given the small number of employees that normally express interest in these positions. Contractually entitling the Union to receive basic information about the selection process, and providing non-selected candidates with written reasons should be sufficient to enable the Union to assess whether grievances are warranted. Accordingly, we shall order the adoption of compromise wording consistent with the foregoing discussion.(2)
a. Union’s Position
The Union proposes that "when service canine handler agents are required to perform duties that can reasonably be expected to soil their uniforms, such as crawling under vehicles in search of contraband, the Service shall provide coveralls (jumpsuits) to wear over the uniform, and shall maintain them in a clean condition." The annual allowance that Border Patrol agents receive for uniforms is insufficient to buy enough standard uniform items, without also expecting canine handlers to replace uniforms that "are needlessly ruined." Its proposal, therefore, would protect employees from having to use "personal funds to replace damaged items." It also does not require any specific type of coverall to be provided, "allowing the use of economical disposable coveralls." Finally, although coveralls are not uniform items, even if they were, the subject matter of its proposal is not "covered by" the parties’ contract, as the Employer argues, because it expired in 1998.
b. Employer’s Position
The Union should be ordered to withdraw its proposal because it concerns the matter of uniforms, and uniforms are covered by the parties’ expired master agreement. As to the merits of the proposal, all Border Patrol agents, not just canine handlers, perform work that can get their uniforms soiled, and they may file requests for reimbursement if their uniforms are damaged. In addition, its adoption would deprive agents of access to their weapons, as the weapons would be beneath the coveralls, and "[m]anagement is concerned that the coveralls will detract from the appearance of authority required for Border Patrol Agents especially when in the presence of suspects."
Upon careful examination of the record presented by the parties on the issue of coveralls, we shall order the Union to withdraw its proposal.(3) In this regard, the Union has cited no actual instances in which canine handlers have soiled their uniforms in the line of duty. Nor has it provided evidence that canine handlers soil their uniforms with greater frequency than do other Border Patrol agents, or have used personal funds to replace damaged items. Therefore, there is insufficient basis for adopting its proposal. The Union’s real interest appears to be in raising its general concern that the annual uniform allowance all Border Patrol agents currently receive is inadequate, rather than in establishing factual grounds which relate to the specific needs of canine handlers. This interest is more appropriately addressed in the parties’ ongoing successor MCBA negotiations.
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 Panel’s regulations,5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:
1. Single Document or Separate MOU
The parties shall adopt the Union’s proposal.
2. Selection Procedures
The parties shall adopt the following wording:
1. If a candidate is interviewed orally as part of the selection process, all candidates shall be interviewed orally;
2. The Union will be informed of the number of applicants for each canine handler position, and will be informed who was selected; and
3. The Employer shall provide written reasons explaining why a particular candidate was selected over others, if requested by a non-selected candidate.
The Union shall withdraw its proposal.
By direction of the Panel.
H. Joseph Schimansky
August 9, 2001
1.After the informal conference, the parties submitted written statements to support their positions. The Employer then filed a motion to strike the Union’s attachments because, it contends, the attachments were inconsistent with the instructions given to the parties by the Panel’s representative at the conclusion of the informal conference. In fact, in the presence of the Employer representatives the Union representatives explicitly requested and received for both parties permission to include attachments with their submissions. Consequently, we deny the Employer’s motion to strike. In response to the Employer’s motion to strike, the Union filed a motion to strike “unfounded assertions of fact made by the Agency in its submissions as the Union had no opportunity to rebut them.” In our view, mere disagreement with a party’s assertions provides an insufficient basis for striking them. Moreover, the Union took the opportunity to rebu