DEPARTMENT OF THE TREASURY U.S. CUSTOMS SERVICE MIAMI, FLORIDA and NATIONAL TREASURY EMPLOYEES UNION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
NATIONAL TREASURY EMPLOYEES UNION
Case No. 98 FSIP 92
DECISION AND ORDER
The National Treasury Employees Union (Union) 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 the Treasury, U.S. Customs Service, Miami, Florida (Employer).
After investigation of the request for assistance, which concerns tours of duty, the Panel directed the parties to participate in an informal conference with a Panel representative for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, the representative would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to this procedural determination, Panel Member Edward F. Hartfield met with the parties on August 4, 1998, at the Employer’s offices in Miami, Florida.(1) At the close of the proceeding, the parties remained deadlocked over the starting times for shifts, and were permitted to submit statements in support of their final offers. Member Hartfield has reported to the Panel, and it now has considered the entire record, including the parties’ supporting statements.
The Employer services the Miami seaport and airport, including cargo areas. Its mission is to enforce customs and related laws, collect revenue from imports, interdict and seize contraband, and process persons, carriers, cargo and mail into and out of the Miami port of entry. The Union represents a nationwide bargaining unit consisting of approximately 11,500 employees who hold positions such as customs inspector, import specialist, K-9 enforcement officer and administrator. There are approximately 650 bargaining-unit employees represented by the Union in Miami; of those, approximately 240 customs inspectors potentially are affected by the dispute.
The parties’ master collective-bargaining agreement (CBA) is in effect until September 30, 1999. In June 1995, they implemented a negotiated National Inspectional Assignment Policy (NIAP) which sets forth policy and procedures for the assignment of overtime work to customs inspectors and K-9 officers. Pursuant to NIAP, the parties have agreed to bargain over certain permissive subjects under 5 U.S.C. § 7106(b)(1), including staffing levels, the administrative workweek, and changes in tours of duty (shifts), including the creation of new tours of duty. With respect to the latter, NIAP sets forth the criteria to guide the parties at the local level in their negotiations over new shifts.(2)
Currently, customs inspectors assigned to the Passenger Processing Branch (PPB) at MIA work, on a rotating basis, one of three shifts: 6 a.m. to 2 p.m.;(3) 11 a.m. to 7 p.m.; or 4 p.m. to midnight. Employees work each shift for a 2-week period, then rotate to another of the three shifts. Every 6 months, bargaining-unit employees bid on work assignments in the seaport, airport and cargo areas, with seniority status being the determining factor for selection among inspectors who are equally qualified for the job. Once the location of the assignment is determined, inspectors are then chosen for their preferred shift assignments, again, based on seniority. The parties appear to agree that an airport assignment is the least desirable of the three work-area assignments because of the evening and night shifts there, whereas inspectors assigned to seaport duty work only day shifts.
During the past few years at MIA, there has been an increase in flights arriving during the hours of 4:30 to 6 a.m. To cover the increased workload in PPB, the Employer has assigned customs inspectors to work there on overtime. The dispute herein arose during negotiations stemming from the Employer’s desire to create permanent shifts covering the period of increased early morning flight arrivals, in lieu of staffing those hours through overtime assignments.(4)
Essentially, the parties disagree over the starting time for any permanent early-morning shift in PPB.
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Employer proposes to eliminate the 6 a.m. to 2 p.m. shift for customs inspectors, including rovers,(5) in PPB and replace it in Concourse B with a 5 a.m. to 1 p.m. shift, which would revert to 6 a.m. to 2 p.m. during eastern standard time (e.s.t.); and in Concourse E, substitute the 6 a.m. to 2 p.m. tour of duty with a 4 a.m. to 12 p.m. shift, reverting to 5 a.m. to 1 p.m. during e.s.t. Customs inspectors who demonstrate personal hardship may be exempt from working these shifts; hardship exemptions would be determined by a joint labor-management panel with the Port Director making the final decision in the event of a tie vote. The new shifts would apply on Sundays and holidays as well. All other existing shifts would remain in effect. Finally, implementation of the new shifts would take place 30 days after the Panel’s decision.
The creation of new shifts covering the time periods of early morning flight activity is justified because there has been an increase in flight arrivals during the period from 4:30 to 6 a.m. The proposed shift schedules are needed, including Sundays and holidays, to provide coverage for work between 4:30 and 6 a.m. which is regular and recurring on a daily basis. The creation of these shifts would "align the workforce to the workload," one of the criteria under NIAP which the parties are to consider when negotiating over new tours of duty. The data, however, demonstrate that current staffing procedures do not align the workforce with the workload during the early morning hours. In this regard, according to the Employer’s study, 10.5 percent of the total passengers processed by the Customs Service at MIA, including Sundays and holidays, arrive between 4 and 5:59 a.m., the only peak workload period not covered by an existing regular shift. Covering the periods of increased workload through regular shift assignments instead of with volunteers working overtime assignments (who change daily) would provide greater continuity of personnel, thereby improving the effectiveness of the Employer’s enforcement capabilities.
Moreover, the proposed shift schedules would further the goal of the National Performance Review to create a "Government that works better and costs less" by allowing the Port Director to direct operations in a more efficient and effective manner. In this regard, its data show that in Fiscal Years 1996 and 1997, the Employer spent approximately $775,000 each year, or 20.3 percent of its total overtime budget for the Port of Miami, on overtime compensation to provide service to the airlines between 4 and 6 a.m. During those hours, however, only 5.8 percent of the total narcotics seizures were made, demonstrating that overtime expenditures are being utilized primarily to facilitate routine passenger processing rather than to support critical drug interdiction efforts. Furthermore, implementation of the proposal would not affect the potential overtime earnings of customs inspectors assigned to the airport; rather, funds saved through the establishment of permanent early morning shifts in PPB would be redirected elsewhere to provide overtime compensation for more effective enforcement operations in seizing larger quantities of narcotics and other contraband. Other Federal, county, and private agencies who provide service to the airport have regular work shifts which start at 4 or 4:30 a.m., and it should have a similar shift so that overtime is not paid to employees unnecessarily.
For those employees who may find it difficult to work an early morning shift, the proposal provides an opportunity to request an exemption due to personal hardship. In staffing the new shifts, volunteers for the assignments would be sought first, and only if the number of volunteers is insufficient would customs inspectors be assigned to the shifts by inverse seniority. Potentially, there may be enough volunteers for the new shifts to avoid any involuntary assignments. Even if inspectors must be involuntarily assigned to the new shifts, the assignment period would last only for 2 out of every 6 weeks. Moreover, through the semi-annual bidding process for assignments, inspectors have the opportunity to change their work assignments every 6 months so that the same employees might not continue to receive the less desirable assignments. Over the past 2 years, inspectors with 18 to 24 months of seniority have been able to avoid assignments in PPB if they so choose. Those inspectors who receive less desirable assignments also have the option, pursuant to the parties’ CBA, of exchanging shifts, days off, and rotational work locations with other employees, subject to qualification requirements.
Working rotating shifts and irregular hours is not new to inspectors because they are informed, prior to being hired, that performance of their duties "frequently requires irregular and unscheduled hours." Furthermore, candidates for the position are queried about their willingness to "work rotation and irregular shifts." Finally, a 30-day period for implementation of the new shifts is reasonable so as not to further delay the needed changes. The proposal also provides for a longer notice period to employees of a change in their shift scheduling than the 2 weeks required under the CBA.
2. The Union’s Position
The Union proposes to implement a permanent 6 a.m. to 2 p.m. shift in Concourses B and E of PPB. Recently, the Employer unilaterally implemented the same shift, thereby demonstrating the need for such a work schedule. A shift which starts at 6 a.m. would strike a balance between the Employer’s interest in aligning the workforce with the workload and reducing overtime costs for routine baggage inspection, and the interest of employees in improving the quality of their work and personal lives. In this regard, its proposal would result in a 90-percent alignment of the workforce with the work, an admirable achievement under NIAP. Furthermore, a later starting time of 6 a.m. would give management 2 more hours of coverage in the afternoon during its busiest period so that it would avoid having to pay overtime to inspectors or pulling rovers off enforcement efforts to work on passenger baggage inspections.
While the proposal would result in savings of overtime expenses for routine baggage inspection for the Employer, it would not be at the expense of employees’ quality of life. The Union’s proposed shift schedule would allow for a more family-friendly work environment for employees, consistent with the current trend in business and government. In this regard, as attested to by a number of employees during the informal conference, 6 a.m. is less onerous for customs inspectors than the Employer’s proposed 4 and 5 a.m. starting times, given their need to provide childcare and eldercare for family members. If insufficient volunteers are found, it is likely that less senior customs inspectors would receive the undesirable work assignments in PPB. Because these employees quite often have young children, it would be extremely difficult to find daycare for them if 4 and 5 a.m. starting times are implemented. Thus, the Employer’s proposed tours of duty would only add to the turmoil in the personal lives of customs inspectors who already work shifts which rotate every 2 weeks, and may cause some customs inspectors to leave the Customs Service. If this occurs, the Employer would have to shoulder the added expense of hiring and training more customs inspectors. Under the Union’s proposal, on the other hand, employees are likely to find it less difficult to make daycare arrangements.
The Employer’s effort to make its proposal more appealing by adding a hardship exemption provision should be discounted. The parties have had a negotiated agreement in effect for some time which allows employees to request exemptions from transfers for hardship reasons, but management has failed to grant a single one. Even if exemptions were granted, it would only mean that the burden of working those shifts would fall upon other bargaining-unit members. Finally, the Union’s proposal meets the criteria in NIAP requiring the parties at the local level, when negotiating over changes in tours of duty, to consider the impact of proposed new shift schedules on the personal lives of employees. The Panel should give deference to this since it was agreed upon by the parties and sets forth the guidelines that are to shape the outcome of local negotiations on changes in work schedules.
Having considered the arguments and evidence in this case, including the statements of witnesses at the informal conference, we are persuaded that, on balance, a modified version of the Employer’s proposal should be adopted to resolve the dispute. In our view, the Employer has demonstrated a need for its proposed tours of duty based upon the regularity and volume of early morning flight arrivals at MIA between the hours of 4:30 and 6 a.m. Shifts which begin at 4 and 5 a.m. would permit more effective use of overtime funds by redirecting overtime activities from routine passenger processing matters to other enforcement activities likely to yield better results in terms of seizures of narcotics and other contraband. As the Employer has stated, and the Union does not dispute, such redirection of funds for overtime assignments should not result in the loss of overtime earnings for employees who will continue to have opportunities to work overtime assignments, albeit outside of routine passenger processing during early morning hours. Earlier starting times are also consistent with the current practices of other government agencies and private businesses which provide services to MIA which have tours of duty beginning at 4 or 4:30 a.m. This provides additional evidence of the need, on a regular and recurring basis, for a shift which begins earlier than the 6 a.m. shift proposed by the Union. Although it appears that the Employer intends to implement the new tours of duty every day of the week, including holidays, we shall modify its proposed wording to make it clear that the new shift schedules are to be in effect 7 days a week, including holidays.
In reaching this conclusion, we have carefully weighed the Union’s argument that the implementation of shifts which start as early as 4 and 5 a.m. would complicate the personal and family lives of some customs inspectors, primarily those who have young families and are in need of daycare which would be difficult to find at such early hours. While we are sympathetic to the burdens such early starting times would place on certain employees, it is nevertheless clear that prior to hiring, customs inspectors are informed that working irregular hours is a condition of their employment. Therefore, we believe that the Employer’s proposed procedure to provide customs inspectors with the opportunity to request an exemption due to personal hardship is the best that can be done under the circumstances. We shall, however, modify the procedure to emphasize that the Port Director, in rendering decisions on hardship exemption requests, should carefully consider the Memorandum issued on July 11, 1994, by President Clinton to Executive Departments and Agencies regarding "Expanding Family-Friendly Work Arrangements in the Executive Branch." By adding this requirement, it is our intent to underscore that bona fide exemption requests should be honored.
Finally, we note that the Employer has committed itself to first seeking volunteers to work the new shift assignments, and only in the event that there is an insufficient number of volunteers would employees be drafted, by inverse seniority, to work under those schedules. In our view, the solicitation of volunteers to work the new early morning tours of duty should further alleviate the adverse impact those assignments may have on certain employees.
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 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 adoption of the following wording:
(1) In the Passenger Processing Branch, the current 6 a.m. to 2 p.m. shift for inspectors assigned to passenger processing (including Rovers) shall be replaced in 30 days in Concourse B with a 5 a.m. to 1 p.m. shift, changing to 6 a.m. to 2 p.m. during eastern standard time (e.s.t.); and in Concourse E with a 4 a.m. to 12 p.m. shift, changing to 5 a.m. to 1 p.m. during e.s.t.
(2) The above shifts also apply to Sundays and holidays.
(3) All other currently existing shifts will remain in effect.
(4) Hardship Policy – Decisions on employee requests to be exempt from working the shifts referenced in paragraph (1), above, are to be made jointly by a Management/Union panel consisting of one manager and one Union member. If there is no consensus on whether or not there is a hardship, the Port Director will make the final decision. In making the determination, the Port Director shall take into consideration the July 11, 1994, Memorandum issued by President Clinton to heads of Executive Departments and Agencies, entitled "Expanding Family-Friendly Work Arrangements in the Executive Branch."
By direction of the Panel.
H. Joseph Schimansky