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
NATIONAL BORDER PATROL COUNCIL,
AMERICAN FEDERATION OF GOVERNMENT
Case No. 95 FSIP 86
DECISION AND ORDER
The Department of Justice, 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 site selection for mid-term negotiations, should be resolved on the basis of a single written submission from each party. Submissions were made in accordance with the Panel’s procedural directive, and it has now considered the entire record.
The Employer’s mission is to secure U.S. borders from, and to apprehend, illegal immigrants. The Union represents about 4,500 employees, approximately 90 percent of whom are border patrol agents. The parties recently entered into a collective-bargaining agreement (CBA) which is due to expire in February 1998. In the instant case, they have reached impasse following negotiations over a set of "generic" ground rules which are to govern mid-term bargaining.
The sole issue in dispute is the selection of sites for mid-term negotiations.
1. The Union’s Position
The Union’s proposal is:
The parties agree that the site of negotiations shall be selected in the following manner:
a. The parties will confer and make a good-faith effort to mutually select the site of each negotiation session.
b. Where the parties cannot mutually agree over the site of a negotiation session, they shall rotate in the selection of negotiation sites in the following manner:
1. For every three selections made by the Employer, the Union shall be entitled to make one selection.
c. All negotiation sites shall be in the continental United States and the parties shall meet in Government space unless agreed otherwise.
This proposal is consistent with a provision ordered by the Panel to resolve a prior dispute over the same issue.(1) In the prior case, the Panel rejected the Employer’s arguments that all bargaining sessions be held in Washington, D.C., and noted that neither party should be able to force the other to consistently be the "visiting team." Selection of a site other than Washington may be appropriate on some occasions because of a direct nexus to the negotiations or close proximity to one or more of the Union’s negotiators. Overall, since the logic of the prior arrangement remains sound, adoption of the Union proposal is appropriate.
2. The Employer’s Position
The Employer proposes the following:
a. The parties will first attempt to reach mutual agreement on the appropriate location for each negotiating session (a session shall be defined as a continuous block of time, normally 1 or 2 weeks, including travel time, devoted to negotiations). The parties agree to confer in good faith for this purpose. Such consultations shall be accomplished expeditiously, normally by telephone.
b. If the parties are unable to agree on the location of negotiations, the Employer shall select the location, which shall normally be at or in close proximity to the Employer’s facilities in the Washington, D.C., area. The Employer may elect to conduct negotiations outside of the Washington, D.C., area based on reasonable considerations such as coordination with other meetings or conferences involving representatives of both sides, the desirability of visiting work sites or test sites to obtain information related to the negotiations, the location of the negotiation team members on both sides, etc. Such other locations, except by mutual agreement, shall be at or in close proximity to Employer facilities within the continental United States.
Conducting talks at the INS Headquarters in Washington "contributes to effective and efficient negotiations" and "facilitates intra-management consultation which can lead to more voluntary agreements between the parties." Since mid-term bargaining usually involves policies developed at the headquarters level, it makes more sense to discuss these matters in Washington with the managers who were instrumental in their development. Such an approach reduces the time that these individuals spend away from their managerial functions while providing the negotiators from both sides with increased access to information and research facilities. Moreover, because the parties’ CBA requires the Employer to bear the full cost of all impact-and-implementation negotiations, it is only fair to expect that Union negotiators will travel more frequently than their management counterparts.
The Union’s proposed solution does not offer its representatives significant relief from the burden of travel. In this regard, its negotiators are scattered over a wide geographic area, and most of them will be required to travel regardless of where negotiations are held. In addition, the cost of negotiating sessions outside of Washington, D.C., is nearly double that of sessions at headquarters, as the Employer must pay the travel and per diem expenses of both the Union and management negotiators. Overall, the Employer’s proposal provides an efficient and equitable arrangement and, therefore, should be adopted.
Having carefully reviewed the record on this issue, we conclude that the matter should be resolved on the basis of a compromise provision. Under this solution, the parties shall adopt the introductory wording found in the Employer’s proposed paragraph a. This wording provides greater detail regarding the initial steps to be taken prior to any mid-term negotiations while providing a clear definition of the term "session." In our view, it is superior to the Union’s proposed paragraph a. and, therefore, we will order its adoption.
With respect to site selection when the parties are unable to reach consensus on a location, we agree in principle with the plan proffered by the Union. Consistent with our prior decision,(2) we continue to believe that absent unusual or compelling circumstances, neither party should have to bear the full burden of travel. In our view, allowing the Union to select every fourth site should not create an undue hardship for the Employer. While we appreciate that bargaining at the Employer’s headquarters in Washington may be appropriate much of the time, we also recognize the value of holding talks in a different atmosphere, away from the daily business which goes on "inside the Beltway." In adopting this approach, we note that the Union’s proposal neither provides a starting point for the selection process nor establishes clearly that negotiations must be in Employer-controlled facilities. Because we believe that such modifications are necessary, we shall incorporate them into our final 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 wo