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
DEPARTMENT OF HOMELAND SECURITY
BUREAU OF CUSTOMS AND BORDER
NATIONAL TREASURY EMPLOYEES UNION
Case No. 05 FSIP 120
DECISION AND ORDER
The National Treasury Employees Union (the Union or NTEU) filed a request for assistance with the Federal Service Impasses Panel (the Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (the 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 (the Employer or CBP), Washington, D.C.
Following an investigation of the Union’s request for assistance concerning a dispute over the CBP’s uniform policy, the Panel determined that the impasse should be resolved through single written submissions.1/ The parties were informed that after considering the entire record, the Panel would take whatever action it deemed appropriate, which could include the issuance of a Decision and Order. Written submissions supplementing their earlier statements in BCBP 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. The Employer is also responsible for, among other things, stemming the flow of illegal drugs and other contraband from entering the U.S. 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 grades 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.2/
ISSUE AT IMPASSE
The parties disagree over where and under what circumstances employees should be permitted to wear uniform cargo shorts.
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes that the Employer maintain the status quo by allowing "legacy" Customs Inspectors, Canine Enforcement Officers, and any other uniformed legacy Customs officer to be permitted to wear cargo shorts in all Class 3 environments.3/ "[R]etention of the status quo would enable employees to address the extreme heat and humidity that exists at most, if not all, ports-of-entry," whether it be North Dakota, Maryland or Southern Florida. Contrary to the Employer’s contention that cargo shorts do not project a professional image, "at least 49 law enforcement agencies have not found that professionalism is compromised"; and it provides "no evidence of on-the-job injuries related to shorts," or an "analysis comparing injuries where shorts are allowed and prohibited." Further, the current practice "would not, and has not, adversely impacted their ability to meet the [Employer’s] mission." The Employer’s proposal "is inherently disparate since it arbitrarily limits the shorts option for some Officers but not others"; hence, the Employer’s objective of a consistent policy on uniforms is simply not achieved. Moreover, permitting cargo shorts would not "disrupt the workforce and distract" employees from performing anti-terrorism work efforts, law enforcement, safety and other agency mission objectives. In summary, CBP has had seven years to collect, analyze and provide evidence to support its arguments that the agency’s mission would be impeded, but has "failed to do so."
2. The Employer’s Position
The Employer proposes that cargo shorts be an authorized trouser option in the Class 3 confined cargo environment only at the Southwest border locations, South Florida, and Puerto Rico. This is in accordance with the Employer’s efforts "to implement a consistent uniform policy for all inspectional personnel." It is also consistent with the policy that two other unions representing CBP employees agreed to in the fall of 2004,4/ and would assist the Employer in "maintaining its policy of presenting a more consistent, law enforcement image." Moreover, the proposal "gives consideration to and creates preventive measures for extreme circumstances that would require diversion from the policy." It safeguards employees from "increased potential injury/terminal disease/death by keeping their vulnerable body parts from exposure to scrapes, cuts, and sun damage." When given the option, the majority of employees would "prefer" to keep their legs covered due to the nature of their work. The Union’s proposal, on the other hand, should not be adopted because it "would hinder the [Employer’s] efforts to unify its workforce and integrate its functions." It would also preclude CBP from establishing a "clear and consistent" policy to ensure "uniformity and ease of identification of law enforcement personnel."
Having carefully reviewed the arguments and evidence presented by the parties to support their positions, we find that the Union’s proposal is the better choice for resolving their impasse. In our view, the Employer has not demonstrated how permitting CBP employees to wear cargo shorts in all Class 3 environments would preclude it from presenting a more consistent, professional law enforcement appearance or compromise its ability to meet its mission. For this reason, we shall order the adoption of the Union’s proposal.
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 the 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 it regulations, hereby orders the parties to adopt the following:
The parties shall adopt the Union’s proposal.
By direction of the Panel.
H. Joseph Schimansky
April 25, 2006
The Panel initially addressed this issue in Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Customs and Border Protection, Washington, D.C. and National Treasury Employees Union, Case No. 04 FSIP 67 (August 2, 2004)(BCBP), Panel Release No. 470, where it determined to decline to retain jurisdiction because the Employer contended that the Union's proposal was nonnegotiable. The jurisdictional question was resolved in National Treasury Employees Union and United States Department of Homeland Security, Bureau of Customs and Border Protection, 61 FLRA 48 (2005) (Member Armendariz, dissenting). After the Federal Labor Relations Authority (FLRA) issued its decision finding the Union's proposal negotiable, the Union submitted the instant request for assistance to the Panel.
There are currently two other labor organizations representing CBP employees at DHS to whom the uniform policy applies: (1) employees formerly of the Immigration and Naturalization Service (INS) are represented by the National Immigration and Naturalization Service Council, AFL-CIO; and (2) employees formerly of the Animal Plant Health Inspection Service (APHIS) are represented by the National Association of Agriculture Employees.
Class 3 environments include land border passenger processing, cargo examinations, courier hubs, and mail facilities. It excludes airport and seaport passenger processing. Generally, Class 1 uniforms would be worn to attend vigils, memorial services, and other honorary occasions. Class 2 uniforms would be worn in climate controlled air and sea passenger processing facilities. Class 3 uniforms would be worn for all other assignments. Only inspectors assigned to work a full shift in areas that are isolated from the traveling public may wear Class 4 uniforms. All other uniformed employees (firearm instructors, airport tellers, animal caretakers, mail technicians, and Customs aides) wear Class 5 uniforms.
The Union is currently competing with AFGE, the exclusive representative of other bargaining units predating the creation of DHS, for the right to represent CBP employees. The FLRA has scheduled an election to resolve the representation question in May 2006.