DEPARTMENT OF HOMELAND SECURITY BORDER AND TRANSPORTATION SECURITY DIRECTORATE BUREAU OF CUSTOMS AND BORDER PROTECTION WASHINGTON, D.C. and NATIONAL TREASURY EMPLOYEES UNION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
OF HOMELAND SECURITY
No. 04 FSIP 100
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 Homeland Security (DHS), Border and Transportation Security Directorate, Bureau of Customs and Border Protection, Washington, D.C. (Employer or CBP).
Following an investigation of the request, which concerns bargaining over the impact of CBP's policy prohibiting employees from using personal communication devices in certain work areas, the Panel determined that the dispute should be resolved through single written submissions. The parties were informed that after considering the entire record, the Panel would take whatever action it deems appropriate, including the issuance of a Decision and Order. Written submissions were made pursuant to this procedure and the Panel has now considered the entire record.
The Employer's primary mission is to prevent terrorists and terrorist weapons from entering the U.S. while facilitating legitimate trade. The Employer is also responsible for, among other things, stemming the flow of illegal drugs and other contraband from entering the U.S. It has personnel stationed at approximately 300 U.S. ports of entry. The Union represents a nationwide unit of approximately 11,000 employees who typically work as customs inspectors, entry specialists, canine enforcement officers, import specialists, and in various support staff positions, at GS-5 through -11. The collective bargaining agreement (CBA) covering these parties expired on September 30, 1999; except for permissive subjects of bargaining, the CBA's terms will remain in effect until a new agreement is negotiated.
ISSUE AT IMPASSE
The parties disagree whether the Employer should be required to ensure that at least one telephone line at each port is dedicated to receiving incoming emergency calls.
POSITIONS OF THE PARTIES
1. The Union's Position
The Union proposes the following wording:
In the event that employees are prohibited from carrying a privately owned pager, cell phone, or other wireless communication device to receive incoming calls or messages, [CBP] will ensure that at least one manned telephone is available at all ports covered by this policy which is specifically and solely dedicated to receiving incoming emergency telephone calls to bargaining unit employees. Port employees will be informed of the emergency telephone numbers and emergency notification procedures prior to the implementation of this policy.1/
The Employer's policy banning personal communication devices from primary and secondary work areas has reduced employees' ability to be contacted in family emergencies. Thus, a dedicated telephone line in each port is necessary because employees have not received emergency telephone calls from family members, calls have been delayed because port telephone lines are busy, and the calls rollover to unattended telephone lines. Examples of such incidents include: (1) not receiving an emergency call from an employee's wife's workplace that was attempting to notify him that she was being sent to the hospital; (2) difficulty reaching an inspector working the graveyard shift whose wife was experiencing complications with her pregnancy; and (3) the inability to reach an inspector whose son was being rushed to the emergency room. In addition, other employees indicate the need to be contacted immediately if chronically ill family members require assistance.
2. The Employer's Position
The Employer proposes that "Directors, Field Operations, and Port Directors shall ensure procedures are in place to make emergency notifications to employees, through the shift supervisor, in cases where this notification is necessary." Such procedures have been in place for the past 2½ years with no known complaints. Furthermore, CBP's National Law Enforcement Communications Center, a centralized communication system critical to its overall mission, "is also available to receive emergency telephone calls to employees and will contact employees, as necessary, to ensure messages are received in a timely manner." For this reason, the Union's proposal is "moot."
In addition, the Union's proposal excessively interferes with management's right to determine its technology, methods and means of performing work, under 5 U.S.C. § 7106(b)(1),2/ and with management's right to determine its internal security practices and to safeguard its personnel, property, and operations, under 5 U.S.C. § 7106(a)(1).3/ Among other things, it violates the former right by precluding the use of the designated telephones that would be set aside at each location "for critical agency business." It violates the latter right by interfering with the procedures the agency established at each port for notifying employees of emergencies, procedures which are "directly linked to the communication technology and systems Customs and Border Patrol employs to accomplish its critical mission of preventing terrorists and terrorist weapons from entering our nation." Finally, in the Employer's view, "the very welfare of the nation would be at stake with the restrictions that would be placed upon CBP by this proposal."
Having carefully considered the evidence and arguments presented by the parties, including the Employer's newly-raised duty-to-bargain questions, we conclude that the Union's proposal provides the better basis for resolving the dispute. Before turning to the merits of this issue, however, it is necessary to address the Employer's assertions that the Union's proposal interferes with management's rights under § 7106(a)(1) and (b)(1) of the Statute. When faced with such claims, the Panel is guided by the FLRA's decisions in Commander, Carswell Air Force Base, Carswell AFB, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell AFB),4/ and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991) (Yuma).5/ Contrary to the Employer's position, in WPSC the FLRA found a proposal substantively identical to the one proposed here to be negotiable.6/ Thus, in accordance with the guidance provided by the FLRA in Carswell AFB and Yuma, the Employer's contention that the Union's proposal is outside its duty to bargain is hereby rejected.
With respect to the merits of the parties' respective proposals, we are not persuaded by the Employer's contention that the emergency procedures already in place sufficiently address employees' concerns. In our view, the Employer's policy prohibiting employees from carrying personal communication devices in certain work areas reduces their ability to be contacted in emergencies. Given the evidence presented, we believe that the benefit to employees under the Union's proposal outweighs its costs. Accordingly, we shall order its adoption as reflected in the Order below.
Pursuant to the authority vested in it by the Federal Service Labor-Management 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 parties to adopt the following wording:
In the event that employees are prohibited from carrying a privately owned pager, cell phone, or other wireless communication device to receive incoming calls or messages, CBP will ensure that at least one manned telephone line is available at all ports covered by this policy which is specifically and solely dedicated to receiving incoming emergency telephone calls to bargaining unit employees. Port employees will be informed of the emergency telephone numbers and emergency notification procedures.
By direction of the Panel.
H. Joseph Schimansky
October 28, 2004
policy referred to in the Union’s proposal was implemented by the Employer in
support its position, the Employer cites American Federation of Government
Employees, Local 1122 and U.S. Department of Health and Human Services, Social
Security Administration, Western Program Service Center, Richmond, California,
47 FLRA 272 (1993) (WPSC), where the Federal Labor Relations Authority
(FLRA) found a proposal requiring the employer to install telephones with
rollover capability violated management’s right to determine the technology of
performing work. The FLRA went on
to determine the proposal was an appropriate arrangement under 5 U.S.C. § 7106(b)(3).
Employer cites numerous FLRA decisions to support the proposition that proposals
that restrict management’s right to determine its internal security practices
are nonnegotiable, including the FLRA’s finding in National Treasury
Employees Union and United States Department of Homeland Security, Border and
Transportation Security Directorate, Bureau of Customs and Border Protection,
Washington, D.C., 59 FLRA 978 (2004). The
union’s proposal in that case concerned the use of alternative firearm
holsters, and was found nonnegotiable because it excessively interferes with
management’s right to determine its internal security, and did not constitute
an appropriate arrangement.
/ In Carswell AFB, the FLRA stated that the Panel may resolve duty-to-bargain questions concerning union proposals raised by employers in the course of its proceedings by applying the results of previous FLRA decisions where “substantively identical” proposals have been found negotiable.
The FLRA’s decision in Yuma extends the guidance provided in Carswell
AFB concerning the Panel’s authority to resolve impasses where
duty-to-bargain issues are raised. In
essence, the FLRA stated that the Panel may apply the results of previous FLRA
decisions finding substantively identical proposals negotiable to resolve
duty-to-bargain issues even in circumstances where an employer raises a new
legal argument before the Panel that was not previously considered by the FLRA
when it rendered its negotiability decision. Thus, in Yuma, the FLRA stated: “The fact that an
agency’s arguments differ from those previously considered [by the FLRA] will
not, standing alone, compel a conclusion that [the Panel] improperly resolved a
negotiability dispute.” Otherwise,
“agencies could be encouraged to raise novel, even frivolous, negotiability
arguments so as to impede impasse resolution.”
/ In this regard, the intent of the union’s proposal in WPSC was to require the installation of two telephone lines to permit employees to receive emergency personal telephone calls. Because there was no way to ensure that calls to these telephone lines did not also involve work-related matters, the FLRA found that the proposal interfered with management’s right to determine the technology, methods and means of performing work. The FLRA went on to find, however, that the proposal did not excessively interfere with management’s rights and, therefore, was negotiable because the benefit to employees of receiving emergency calls outweighed any adverse impact on the agency. The Union’s proposal in the instant case is substantively identical to the proposal in WPSC because its intent is the same, i.e., to require the availability of telephone lines to permit employees to receive emergency personal calls. Moreover, by stating that the telephone lines would be dedicated “specifically and solely” for this purpose, the proposal avoids the possibility that the calls would