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 SERVICE

WASHINGTON, D.C.

and

NATIONAL BORDER PATROL COUNCIL,

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

Case No. 01 FSIP 210

DECISION AND ORDER

    The Department of Justice (DOJ), 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 (NBPC or Union).

    After investigation of the request for assistance, the Panel determined that the dispute, which concerns the implementation of DOJ’s program on Professional Liability Insurance (PLI),(1) should be resolved on the basis of single written submissions from each party. The parties also were advised that following receipt of their submissions, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision. Submissions were made in accordance with the Panel’s procedural instructions, and it has now considered the entire record.

   BACKGROUND

   The Employer’s mission is to administer and enforce the immigration and naturalization laws of the United States, including securing the Nation's borders and apprehending illegal immigrants. The Union represents approximately 8,600 Border Patrol agents, GS-5 through -11, who are eligible for reimbursement of PLI because they are considered law enforcement officers. The parties' master collective bargaining agreement (MCBA) expired in October 1998, but the parties are continuing to abide by its terms until a successor agreement is implemented; successor agreement negotiations, which started in 1997, are still ongoing.

ISSUE

    The parties disagree over whether the Employer should be required to reimburse qualified employees one-half the cost of PLI premiums.

1. The Union’s Position

    The Union proposes that the Employer reimburse one-half of the premiums that qualified employees pay for PLI. There are three PLI plans commonly used by Border Patrol employees and, "with limited exceptions, these plans are complementary." Even if employees enrolled in all three plans, and opted for the most expensive coverage, they "would currently only be entitled to an annual reimbursement of $215, which is only $100 more than the amount proposed by the Employer." The DOJ policy implemented by the Employer is "derived" from a "low-end" plan underwritten by Wright and Company, which costs $229 per year. Although the type of coverage provided by this plan is "certainly beneficial, at the very least it needs to be supplemented by a plan that provides on-the-scene legal representation." The amount proposed by the Employer also is unacceptable because it does not take into account periodic increases in premium costs.

    The additional cost of applying the Union’s proposal retroactively, as required under the parties’ ULP settlement agreement, "would be minimal," probably only several thousand dollars. More importantly, Congress ensured that employees would act prudently in selecting PLI by requiring them to pay one-half of the insurance premiums. Given the nature of law enforcement work, and the fact that Border Patrol agents "are among the lowest paid Federal law enforcement employees," the Panel should provide "deserving employees with the full benefits intended by Congress."

2. The Employer’s Position

    The Employer proposes to continue to reimburse employees up to one-half the cost of the premium for PLI or $115, whichever is less. Although the Union represents about 8,600 law enforcement officers, overall the Employer has 20,600 employees eligible to receive PLI reimbursement. Since October 17, 2000, when reimbursement for PLI coverage began, "only 1,555 employees have sought and were reimbursed $173,491 (an average of $112 per employee)." As these figures indicate, "the average amount is within the current $115 maximum allowance." Against this background, the Union "has not demonstrated" the need for its proposal. In this regard, it has not shown that unit employees: (1) are at a disadvantage compared with other INS employees, (2) are "constrained" from seeking PLI because of the $115 limit, or (3) "have fully availed themselves of the reimbursement program." In addition, the Union’s proposal would cost "between $872,900 and $1.143 million" for unit employees alone. If the Employer extended the same benefit to all 20,600 of its covered employees, its potential liability "would exceed $2.7 million," an amount that could not be easily absorbed. Finally, the Supreme Court has established that Federal employees are personally liable for tortious actions only if they are beyond the scope of their employment authority. Thus, "the number of professional liability claims and the need for PLI would be limited," further diminishing the Union’s claim that its proposal "is needed to protect its members."

CONCLUSIONS

    Having carefully considered the evidence and arguments presented by the parties, we are persuaded that the impasse should be resolved by adopting the Union’s proposal, combined with wording that permits either party to reopen the matter 2 years from the date of this decision. Preliminarily, although we do not share the Union’s belief that only its proposal comports with Congress’ intent in enacting Section 636 of Public Law 104-208 (as amended), requiring the Employer to reimburse one-half of the cost of PLI premiums is, at the very least, fully consistent with the legislation. The central issue, in our view, is the impact the adoption of the Union’s proposal would have on the Employer’s budget. In this regard, as the Employer indicates, the average cost to date of reimbursing PLI is $112 per employee and, agency-wide, the total number of qualified employees who have elected to participate is limited. Given these facts, there is no basis in the record to support the Employer’s estimates regarding the budgetary impact of the Union’s proposal. Thus, in the absence of experience under an uncapped PLI reimbursement policy, it is unclear that its approach is necessary. Nevertheless, we are sympathetic to the Employer’s underlying concern regarding its ability to accommodate another unfunded mandate. For this reason, additional wording shall be ordered permitting either party to reopen negotiations over the reimbursement policy after a 2-year period. This should allow sufficient time to evaluate the cost of the Union’s approach and to determine whether a cap is warranted.

ORDER

    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 pursuant to 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 parties to adopt the following wording:

The Employer shall reimburse one-half of the premiums that qualified employees pay for PLI. Either party may seek to renegotiate this issue after 2 years.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

December 12, 2001

Washington, D.C.

1. The legal authority for the program is derived from Section 636 of Public Law 104-208, as amended by Section 642 of Public Law 106-58. Under the legislation, “amounts appropriated by this Act (or any other Act for fiscal year 1997 or any fiscal year thereafter) for salaries and expenses shall b