DEPARTMENT OF HOMELAND SECURITY BORDER AND TRANSPORTATION SECURITY DIRECTORATE BUREAU OF CUSTOMS AND BORDER PROTECTION 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 HOMELAND SECURITY
BUREAU OF CUSTOMS AND BORDER
NATIONAL BORDER PATROL COUNCIL,
Case No. 03 FSIP 13
DECISION AND ORDER
The Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Customs and Border Protection, Washington, D.C. (Employer),(1) 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).
After investigation of the request for assistance, the Panel determined that the dispute, which concerns training requirements for the Electronic Defense Module (EDM),(2) should be resolved through an Order to Show Cause. In this regard, the parties were ordered to show cause why the Panel should not impose the following wording to resolve their dispute over the training requirements for the EDM:
The Employer may require employees to be subjected to the EDM as part of the training, certification, or re-certification process.
Submissions were received from the parties in accordance with the Panel’s determination, and it has now considered the entire record.
The Employer’s mission is to: (1) prevent terrorists and terrorist weapons from entering the U.S.; (2) apprehend individuals attempting to enter the U.S. illegally, stemming the flow of illegal drugs and other contraband; (3) protect our agricultural and economic interests from harmful pests and diseases; (4) protect American businesses from theft of their intellectual property; and (5) regulate and facilitate international trade, collect import duties, and enforce U.S. trade laws. The Union represents approximately 8,600 employees, the overwhelming majority of whom are border patrol agents, GS-5 through -11. The dispute affects about 150 to 200 detention enforcement officers, who would be required to carry the EDM. 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.
The parties essentially disagree over whether exposure to the EDM should be a mandatory part of the training program that affected employees receive in the use of the device.
1. The Employer’s Position
The Employer proposes to: (1) require "mild but mandatory self-administration of the EDM during the training of the device;" (2) provide students/trainees some form of written instruction materials for their permanent use, "presumably the 47-page draft lesson plan;" and (3) notify the Union if the EDM/EDB lesson plan is changed. The issue in this case is "almost identical" to the situation the Panel addressed in 1999 involving the Employer’s proposal that officers be exposed to oleoresin capsicum (OC/pepper spray) during training as a condition of certification to carry that non-lethal weapon.(3) The same Union arguments "resurface in the instant case," and the Panel should once again reject them, as it did earlier. In this regard, mandatory exposure to the effects of the EDM, like OC spray, "have sound pedagogical and public policy rationales." As attested to in the affidavit of Michael K. Brown, a Supervisory Immigration Officer at the Immigration Officer Academy, and author of the lesson plan and other EDM training materials, an officer who has received exposure to the EDM "is more likely to use the device before escalating to other force options." Prior exposure would also benefit the Government’s position that "use of the device was appropriate in a later court proceeding," and is less likely to result "in personal injury or even death to an officer" in the event of inadvertent exposure.
The Union, for some reason, believes that the agency plans to require a trainee to self-administer the EDM on five different points of the body, but this is not the case. The self-exposure is only intended to last "a fraction of a second, and this is at the discretion of the trainee." As indicated in its expert’s affidavit, its proposal is consistent with the policies at the Department of Corrections and the U.S. Marshall’s Service, where trainees also are required to experience a mild exposure to the EDM and related devices. Further support for the effectiveness of officer exposure in a training environment can be found in an article in Law and Order magazine, where mild exposure is compared to a student bumping "his or her ‘funny bone’."(4)
2. The Union’s Position
In essence, the Union proposes to make exposure to the EDM "strictly voluntary." In addition, among other things, it would require: (1) a release from a licensed cardiologist as a precondition to exposure; (2) the Employer to bear the cost of the cardiologists examination; (3) the exposure to take place within 5 minutes of a medical facility with heart specialists on duty; (4) the Employer to provide written guidance to all employees trained in the use of, or required to carry the device, outlining the circumstances under which the use of the device is appropriate and inappropriate; (5) the Employer expeditiously to provide each affected employee updated guidance whenever it is modified; and (6) the Employer to "provide the Union with an advance copy of the aforementioned guidance and any modifications," and to "bargain over such matters prior to implementation to the extent required by law."
There are two outstanding issues in the instant case, i.e., whether employees "should be subjected to one or more electrical shocks" to be certified to carry the EDM, and whether the Employer "should be required to provide clear written guidance to employees concerning the proper and improper uses of these devices." The Union "strenuously objects" to the imposition of the wording in the Panel’s Order to Show Cause because it "would needlessly endanger the health and lives of employees." According to a 1990 study by the British Forensic Service, electronic shocking devices can cause "heart attacks, ventricular fibrillation, or arrhythmia, and may also set off an adverse reaction in people with epilepsy or on psychotropic medications." There is also at least one case where an officer died after receiving two brief electrical shocks from an EDM device. An independent inquiry showed that the device aggravated the officer’s pre-existing heart condition, causing his heart to fail.
According to the Employer’s EDM training syllabus, each time the device is applied, it leaves two to four distinct chemical marks on the skin lasting a minimum of 1 week and a maximum of 2 months. Since the Employer plans to require employees to shock themselves five times in different areas of the body, this could cause up to 20 scars on employees. More importantly, the risk of killing or seriously injuring even a single employee "far outweighs any hypothetical benefits that might accrue from exposing employees to electrical shocks during training." In addition, there are significant differences between this case and the one the Panel decided involving pepper spray which justify the opposite result. In this connection, there is "very little risk of secondary exposure" to the effects of the EDM device, and an individual’s reaction to an electrical shock, unl