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

SERVICE

WASHINGTON, D.C.

and

NATIONAL BORDER PATROL COUNCIL,

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

Case No. 98 FSIP 158

 

DECISION AND ORDER

    The Department of Justice, Immigration and Naturalization Service, Washington, D.C. (INS or 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 (Union).

    After the investigation of the request for assistance, the Panel determined that the dispute, which arose during negotiations over the impact and implementation of the Employer’s proposed "Enforcement Standard - Use of Non-deadly Force" (Standard),(1) should be resolved through an informal conference between a Panel representative and the parties.(2) If no settlement were reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel's determination, on December 17, 1998, Panel Representative (Staff Attorney) Gladys M. Hernandez met with the parties at the Panel’s offices in Washington, D.C.(3) With her assistance, the parties reached agreement on four of the five disputed issues.(4) At the conclusion of the meeting, the parties exchanged their final proposals on the remaining issue, which concerns employee exposure to pepper spray during certification training on the use of the selected OC spray device;(5) written statements setting forth, in summary fashion, their positions in support thereof were received by December 28. Ms. Hernandez has reported to the Panel, and it has now considered the entire record.(6)

BACKGROUND

    The Employer administers and enforces the immigration and naturalization laws of the United States, including securing the Nation’s borders and apprehending illegal immigrants. The Union represents approximately 7,442 General Schedule and Wage Grade employees, the overwhelming majority of whom are border patrol agents. The dispute affects about 6,300 employees, all of whom are considered law enforcement officers for retirement purposes.(7) The parties’ MCBA, which was due to expire in October 1998, will remain in effect until a successor agreement is implemented; successor agreement negotiations, which started about 1 year ago, are ongoing.

    By way of background, the OC spray device selected for use by the Employer is the "CAP-STUN Weapon System" (CAP-STUN) manufactured by ZARC International, Inc., of Bethesda, Maryland. It uses an aerosol delivery system that disperses the OC in a conical mist and can deliver six 1-second bursts.(8) The device is most effective at distances of 4 to 6 feet, has a maximum range of 15 feet under ideal conditions, and should not be used at a range of under 3 feet.(9) The Material Safety Data Sheet (MSDA) shows that this aerosol spray device contains 5.5 percent OC, 64 percent Isopropyl Alcohol, and 30.5 percent Isobutane/Propane.(10) The effects of exposure may include eyes tearing and burning, coughing, gagging, shortness of breath, burning sensation of nose, mouth, and throat, and burning sensation and redness of the skin.(11) Without any decontamination, the effects should subside within 45 minutes.(12) The Employer proposes to conduct the exposure in a practical training exercise as part of the certification program.(13) Specifically, immediately following exposure, officers will be asked to use an appropriate level of force to control a situation where a suspect is fleeing or armed with a weapon; officers will also have to assist others in decontamination procedures.(14) During the exposure exercise, the Employer will: (1) have medical personnel present or within radio contact; (2) provide a decontamination area where there is access to water and fresh air in close proximity to the training area; and (3) monitor officers for at least 45 minutes after exposure.(15)

ISSUE AT IMPASSE

    The parties disagree over whether exposure to the CAP-STUN pepper spray should be a requirement for officer certification on the CAP-STUN device.

POSITIONS OF THE PARTIES

1. The Employer's Position

    The Employer’s proposal is as follows:

As part of basic training, all border patrol agents shall be exposed once to OC spray as part of the course of instruction on the device. The exposure will be at a distance of 6 to 8 feet. The agent can choose whether or not to be sprayed from the front or the side. Employees may also choose to wear eye protection (i.e., shooting glasses). The exposure will be part of a practical exercise as administered by a certified INS instructor. Border patrol agents who have already completed the aforementioned training academy course on the effective date of the Enforcement Standard will not be required to receive an OC exposure. However, if the officer does not receive an exposure, he/she will not receive certification to use the device. The exposure will be at a distance of 6 to 8 feet. Employees may choose to use shooting glasses. The employee can choose whether or not to be sprayed from the front or the side. The exposure will be a part of a practical exercise as administered by a certified INS instructor. INS will keep statistics on the number of officers exposed during training and the number of them who suffer unusual reactions requiring attention beyond normal decontamination and share the data with the Union on an annual basis.

This proposal is consistent with the policies of the Federal Bureau of Investigation (FBI) and the United States Marshall Service (Marshall Service), among others, and the recommendation of ZARC, Inc. It is also consistent with "past practice." In this regard, currently as part of their training, officers are "exposed to CS (tear) gas" which produces symptoms "similar" to those produced by OC, although OC "is considerably safer." In fact, there is already the "potential for injury" in the officers’ "rigorous" training, which also includes physical training, baton training, boxing, and arrest and defense tactics. Officers, however, "must necessarily be exposed to hazardous situations during training in order to prepare them for the higher danger of their work."

    There are "myriad reasons" why officers "need" to be exposed to the CAP-STUN spray as part of their training on the device. First, the exposure better equips them to deal with, and work through, the effects of exposure in the field. In this connection, there is a "high likelihood" that officers will be exposed in the field. In the past, "panic" has been the "initial" reaction of officers exposed to tear gas in training. It would be "far better," therefore, for officers to first learn their reaction to OC in a "controlled environment," instead of in the field "during a violent confrontation with a suspect" possibly "jeopardiz[ing]" the safety of the officers, their partners, and "innocent third parties." Second, exposure would "discourage overuse or misuse" of the spray because it "increases the officer’s empathy with victims of the spray." Third, the exposure teaches officers to recognize "any unusual or dangerous symptoms requiring medical attention." Finally, exposure is likely to bolster officers’ credibility when called upon to explain their use of the device in any court proceeding.

    The exposure requirement, on the other hand, will not adversely affect officers. In this regard, the Employer has agreed to allow current officers to choose to carry either the collapsible steel baton or the CAP-STUN device. Those officers who are concerned about the effect exposure may have on their health can forego exposure by electing to carry only the collapsible steel baton. New hires were "recruited with the understanding that they will undergo rigorous training including an OC spray exposure" and, therefore, should not have the same choice as current officers.

    Exposing officers to CAP-STUN spray in training is "very safe." To date, about 9,000 individuals have been exposed as part of their CAP-STUN training by ZARC, Inc., the FBI, the Marshall Service, and the Federal Law Enforcement Training Center, without a documented case of an individual suffering any long-term medical effects; this is an "outstanding" safety record. The report of the North Carolina Department of Labor, Division of Occupational Safety and Health (NCOSH) on its investigation of the North Carolina Department of Correctional Center’s OC training policy mandating exposure "should be given no weight" because: (1) the device used contained a "higher" OC concentration than CAP-STUN (10 percent, almost twice the concentration as CAP-STUN), and other ingredients not found in CAP-STUN; (2) the exposure of only 15 individuals was observed; and (3) the rate of complications from exposure was only .6 percent. Also, NCOSH’s findings of long-term health effects from exposure were based on two studies which looked at the "effects" that the ingesting or injecting of large doses of "pure" OC had on laboratory animals, and not on the effects of "CAP-STUN or any other aerosol product."(16) In fact, as reported by the FBI’s General Counsel, an FBI toxicologist who reviewed the Army Report "found that the studies upon which [the Army Report] relied employed high or multiple dosage protocols and failed to address the realistic toxic risk from the much lower exposure to which individuals would be subject in a field setting."(17) The Florida Department of Labor and Employment Security, Division of Safety Report (FDOL), finding the Florida Highway Patrol in violation of various OSHA regulations for mandatorily exposing employees to "Freeze+P" (pepper gas) should also be "discounted" because the spray is a combination of OC and tear gas and was delivered by stream, which "is known to be hazardous to eyes by creating a ‘needling’ effect."(18)

    The Union’s proposal, which prohibits even a single exposure as a requirement for certification on the CAP-STUN device, "interferes with management’s right to assign work." The policies of the New York City Police Department (NYPD) and the United States Customs Service (Customs) cited by the Union in support of its proposal are not "relevant" and, therefore, should be "discounted." The Customs’ training program overall differs from the Employer’s, and the devices used "may contain harmful chemicals that are not in CAP-STUN."(19) It appears that Customs’ determination to prohibit exposure "was a knee-jerk reaction from labor relations personnel, rather than a reasoned weighing of the benefits and risks of OC exposure." As for the NYPD policy, a different product is used and the work environment of NYPD officers differs from those of INS -- an urban setting as compared to "vast areas of open spaces along most of the border."(20) It believes that "costs and numbers may have been a factor in omitting exposure from training."

2. The Union's Position

    Under the Union’s proposal, which is "similar" to the Customs policy, "no employee [would] be required to be exposed to OC spray as part of any course of instruction;" voluntary exposure would be allowed, but only if the Employer "advises [the] employee of potential health risks prior to exposure."(21) In its view, "the mere possibility of harm" should be sufficient to prohibit exposure. Officers "should not serve as guinea pigs" for CAP-STUN; in this regard, "the lessons of Agent Orange and other chemicals," which were used without first conducting adequate testing and "later found to have serious adverse health consequences," should be heeded. It "adamantly opposes" officers being exposed to OC spray because of the "very real possibility of short- and long-term health risks and serious adverse effects."(22) The Army and Woodhall Reports and the findings of NCOSH, OSHA, and the Tennessee Department of Labor, Division of Occupational Safety and Health (TOSH), among others, all show that exposure to OC spray "would pose serious health risks for employees."(23) In fact, according to the Army Report, OC exposure may have been the cause of death of 14 individuals in police custody.(24)

    Contrary to the Employer’s argument, employees do not have to be sprayed during training for them to "function effectively if they are inadvertently exposed" in the line of duty, or to be credible witnesses in cases concerning the use of CAP-STUN. Even assuming, for the sake of argument, that exposure is necessary for these purposes, "the health risks far outweigh any benefit that might be derived from exposure." As for the eye protection proposed by the Employer, it is inadequate and violates OSHA regulations because it does not "provide a seal from any direction and would allow the spray to touch the eyes." TOSH, for example, recommends "the use of face shields or tight-fitting chemical goggles to minimize exposure during training."

CONCLUSIONS

    Upon careful review of the evidence and arguments presented by the parties on the merits of their respective positions, we are persuaded that the Employer’s proposal provides a better balancing of the interests of officers, management, and the general public, than the Union’s. In this regard, current officers concerned about possible health risks can avoid exposure by electing not to carry the CAP-STUN device, while officer candidates are free to refuse job offers. For those who elect to carry the device, the Employer’s approach provides some protection from the spray, even though it appears on the basis of the evidence in the record that CAP-STUN is safe to use for the purposes intended. Moreover, given the real possibility of accidental exposure in the field, and the fact that reactions cannot be predicted beforehand, it is safer if an officer’s first exposure is in a controlled environment with medical assistance nearby. Perhaps of equal importance is our belief that those exposed to the spray are less likely to use it indiscriminately against the public. For these reasons, we shall order the adoption of the Employer’s proposal.

    With respect to the health risks associated with exposure to CAP-STUN, the NCOSH, TOSH, OSHA, and FDOL findings are unpersuasive because the chemical components and level of OC of the products in question, the exposure requirements, and/or the method of delivery differ from those proposed by the Employer in this case. Nor do we find convincing the Army and Woodhall Reports, which are literature reviews, as they do not appear to address the specific effects of CAP-STUN. We note that if the Union believes that the training program on the CAP-STUN device violates Federal safety regulations, it may file a complaint with OSHA.(25) Finally, in our view, through their representatives, employees should be kept up to date on any new information concerning the effects of CAP-STUN. Therefore, we will modify the Employer’s proposal to require management, when it becomes aware of any new studies concerning the effects of CAP-STUN or a comparable device, promptly to share them with the Union.

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 following:

    The parties shall adopt the Employer’s proposal, and the following additional wording:

If the Employer becomes aware of any new studies concerning the effects of CAP-STUN or a comparable device, it will promptly share the information with the Union.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

February 3, 1999

Washington, D.C.

 

1.The Standard concerns “the authority of immigration officers to use non-deadly force, parameters for use of non-deadly force, authorized non-deadly-force devices, unauthorized non-deadly-force devices, prohibited acts and techniques, reporting procedures, training and certification requirements, and storage and maintenance of non-deadly-force devices.” Standard, paragraph I., “Purpose,” p. 1. The two principal devices authorized are the oleoresin capsicum (OC) spray (commonly known as pepper spray) and the collapsible steel baton (21 or 26 inches).

2.The Panel also declined to assert jurisdiction over the issue concerning the memorialization of the parties’ agreement on the Standard because, as alleged by the Employer, the matter appeared to be addressed in Article 3A.A. of the parties’ master collective-bargaining agreement (MCBA).

3.The parties provided supporting documentation to the Panel and each other shortly before and during the meeting.

4.The parties agreed to: (1) the circumstances under which an employee may be temporarily excused from the recertification requirement; (2) “immediate implementation” of parts of the Standard concerning the collapsible steel baton, and to “not expose any bargaining-unit employee to OC spray pending [the] Panel[’s] resolution of the issue”; (3) the training of “probationary officers at the Academies” outside normal duty hours without “affect[ing] the position or rights of either party with respect to overtime compensation” for those officers; and (4) “80 percent or higher” as the “passing score for the written portion of the examination for the OC spray and collapsible [steel] baton courses.”

5.There is no dispute that officers must be certified to carry and use the OC spray device on the job.

6.A videotape showing the exposure of certain officers in the course of a practical exercise was submitted by the Employer and viewed by the Panel as part of its consideration of this dispute.

7.Employees required to carry a firearm will be required to “carry at least one approved non-deadly-force device of their choice.” Id. The Union reports that the OC spray device is the one preferred by most employees; the Employer’s preference is for employees to carry both devices.

8.“United States Border Patrol Academy Oleoresin Capsicum Spray Basic Lesson Plan,” dated November 2, 1998 (Academy Lesson Plan), p.12.

9.Id. at pp. 12 and 17.

10.The Union appears to argue that the MSDA does not list all the ingredients in CAP-STUN simply because the Department of Labor’s Occupational Safety and Health Administration (OSHA) regulations allow ZARC, Inc., to not list all ingredients if such information is a trade secret. Also, the parties disagree over whether the chemical composition and levels in CAP-STUN require compliance with OSHA regulations. These are not appropriate matters for the Panel to resolve.

11.Id. at pp. 10-11 and MSDA.

12.Id. at p. 24 and MSDA.

13.This program is an 8-hour course including classroom lectures (2 hours); laboratory work (3½ hours); a practical exercise (2 hours); and a written examination (½ hour). Academy Lesson Plan at p.2. The annual recertification training course will last 4 hours and will not include another exposure. Id. at p. 33. The parties report that basic training already includes an exposure to tear gas.

14.Id. at pp. 31-32.

15.Id. at pp. 4, 29, and 31.

16.These studies are one issued in 1993 by H. Salem, E.J. Olajas, L.M. Miller, and S.A. Thomson, entitled “Capsaicin Toxicology Overview” (also referred to as “the Army Report”) and another issued by Dr. Woodhall Stopford with the Division of Occupational and Environmental Medicine of Duke University Medical Center (Woodhall Report). Our review of the Army Report showed that it looked at studies concerning the “intravenous,” “intra-arterial” and “intra-gastric” administration of OC, and not a spray mist administration. Its claim that OC may be a carcinogen is based on studies where it was “administered in a diet” over a period of time. In fact, with respect to CAP-STUN itself, the Report stated that “there does not appear to be any data available on the chronic effects of overexposure,” Army Report at p. 9. Similarly, in addressing the chronic effects of OC, the Woodhall Report cites studies where it was administered systemically or orally. In claiming that OC causes cancer, Dr. Woodhall relied on various studies which show that people who use pepper routinely in their diet have an increased incidence of gastric cancer.

17.Also, the toxicologist criticizes the authors of the Army Report for not conducting a critical review or analysis of their literature sources.

18.The Employer reports that a representative of ZARC, Inc., was told by the FDOL that it has approved “Freeze+P” exposure as part of training, provided the method of delivery is spray and individuals wear eye protection.

19.It is unclear from the evidence provided by the Union what device(s) is used by Customs. The undated Customs Directive setting forth its OC spray policy states that training is to be conducted at the local level.

20.The product used by NYPD is the MKIII device manufactured by MACE Security International (contains 10 percent OC) and the training lasts 30 minutes, consists of a lecture and viewing a demonstration video only, and is “[d]esigned to make officers aware of the appropriate guidelines when authorized OC spray with regards to effectiveness, physical limitations, legal authority, and basic first aid.” NYPD Lesson Plan at pp. 17 and 21.

21.While acknowledging that the Panel has no jurisdiction concerning management’s decision to require employees to carry non-deadly force devices, “it is important that at least two different devices be available” because of the likelihood that some employees “will not be able to certify with the collapsible baton,” and will need to certify with the CAP-STUN device to avoid reassignment or to remain employed.

22.The Union cites to portions of the Army and Woodhall Reports which essentially indicate that some individuals who have been exposed reported: (1) that temporary effects have persisted; and (2) such medical problems as broncho spasm, severe headaches, acute hypertension, chest pains, and loss of consciousness. It also refers to studies finding that: (1) injecting “dogs and sheep” with OC “caused heart stoppage for up to 2 minutes”; and (2) “44 percent of chili grinders exposed chronically to capsaicinoid develop chronic respiratory symptoms.”

23.We note that neither the OSHA nor TOSH findings concern CAP-STUN. The OSHA findings, issued in response to an inquiry from the Utah Occupational Safety and Health Division, concern “First Defense” which has 10 percent OC, while the TOSH findings concern “Freeze+P” and other pepper gases. The Union contends that any attempts by the Employer at distinguishing devices is “disingenuous” because OC is the “primary active ingredient” in them all.

24.Compare Monty B. Jett, “Pepper Spray Training for Safety,” FBI Law Enforcement Bulletin, November 1997, p. 18. In this article submitted by the Employer, the author reports on the International Association of Chiefs of Police and the FBI studies on 32 in-custody deaths in which OC spray was used to subdue a subject; both studies revealed that there was “no specific evidence that OC caused or contributed significantly to any of th[e] deaths.” The studies found that the subjects, all males, possessed some or all of a number of “features” including obesity, large stature, and drug- or alcoho