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
  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

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.

BACKGROUND

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.

ISSUE

    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, unlike pepper spray, is more predictable. Moreover, the Union disagrees that exposure to non-deadly force devices would make officers less likely to use them indiscriminately against the public: "Officers are not shot with firearms or beaten with steel batons as part of their training, but do not purposelessly shoot or beat people." Finally, it is "illogical" to assume that exposure to such devices enhances the ability to use them when "practice with the device is the only way to accomplish that goal."

CONCLUSIONS

    Having carefully considered the parties’ responses to the Order to Show Cause, the Panel declines to retain jurisdiction over the dispute in this case. Although we are not persuaded that subjecting detention enforcement officers to the EDM device as part of the certification process would serve any useful purpose, it is unclear whether the Panel has the authority to order the adoption of the Union’s proposal that exposure to the device be strictly voluntary. By the same token; if exposure were strictly voluntary, we would not be inclined to require release from a cardiologist as a precondition. In this regard, it is arguable that under FLRA case law the Union’s proposal interferes with management’s right to assign work.(5) Given these circumstances, we are reluctant to issue an order addressing the merits of the dispute until a decision regarding the negotiability of the Union’s proposal has been rendered in the appropriate forum. This determination to decline to retain jurisdiction is made without prejudice to the right of either party to file another request for assistance if an impasse is reached once the legality of the Union’s proposal has been established.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because the negotiability of the Union’s proposal has not been established, the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby declines to retain jurisdiction over the parties’ dispute.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

May 20, 2003
Washington, D.C.

1. The agency that initially filed the case was the Department of Justice, Immigration and Naturalization Service (INS). The case caption has been updated to reflect that, on March 1, 2003, INS was incorporated into the Department of Homeland Security.

2. The EDM is a hand-held device similar to a “stun gun”; it is brought into physical contact with a subject and triggered, emitting an electric shock which temporarily causes incapacitation. The EDM is to be distinguished from a second device referred to as the Electronic Defense Belt (EDB), which is placed around a subject’s waist and triggered through a remote device. The Employer is proposing that affected employees be mandatorily exposed only to the EDM.

3. Department of Justice, Immigration and Naturalization Service, Washington, DC and NBPC, AFGE, AFL-CIO, Case No. 98 FSIP 158 (February 3, 1999), Panel Release No. 417.

4. “Exposing Officers to Immobilization Devices During Training,” Tony L. Jones, Law and Order, December 2000.

5. See, for example, National Treasury Employees Union and U.S. Firearms, 45 FLRA 339, 358 (1992)(the right to assig