United States of America 

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of  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

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 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 deemed 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.

BACKGROUND 

     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 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.[1]/

 ISSUE AT IMPASSE 

     The parties disagree over where 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 and Canine Enforcement Officers to have the option of wearing shorts in all Class 3 environments.[2]/  In 1999, the Customs Service and NTEU reached agreement on a nationwide Uniform Policy which included cargo shorts as part of the Class 3 Uniform.  Affidavits submitted from employees located in various ports of entry into the U.S. show that hot, humid weather conditions exist throughout the country.  In such locations, employees may be required to, among other things, work inside “a container or aircraft cargo compartment where temperatures can reach over 100 degrees”; process cars entering the U.S. during summer periods of high heat and humidity; and conduct x-ray scans and examine trucks in temperatures and humidity that are increased by vehicles’ engines, air conditioners, and compressors.  Permitting employees to wear cargo shorts in these types of environments would increase their comfort, and benefit the Employer by “[enabling employees] to do a better job.”    Contrary to the Employer’s contention that cargo shorts do not project a professional image, other Federal agencies and law enforcement entities allow employees to wear shorts with no apparent ill effects to their law enforcement image.  Further, during the previous 5 years when bargaining-unit employees have been permitted to include shorts as part of the Class 3 uniform there have been no known complaints.  The Employer, therefore, should be required to maintain the status quo as it pertains to bargaining-unit employees. 

2.   The Employer’s Position 

     The Employer proposes that cargo shorts be authorized as a Class 3 uniform trouser only for officers assigned in the confined cargo environments at CPB locations in South Florida, Puerto Rico, and along the Southwest Border.  As a preliminary matter, the Union’s proposal should not be adopted because it interferes with a number of management’s rights.  In this regard, “uniformed CBP personnel come into contact with a wide-range of both known and unknown hazardous substances with the potential to burn, or be absorbed by the skin.”  In addition, officers are required to spend extensive hours in direct sunlight.  Requiring employees to wear long trousers “mitigates the harmful effects of Ultraviolet rays and the risk of an officer’s incapacitation due to sunburn.”  Thus, restricting the wearing of shorts for officer safety is within the Employer’s right to determine policies and actions to safeguard its personnel.[3]/  Further, by potentially requiring officers to change from cargo shorts to long trousers during the course of a tour of duty or overtime assignment, the Union’s proposal also interferes with the Employer’s right to determine the “methods and means” of performing work.

     On the merits, the proposal is designed to create one uniform policy for all CBP employees.  CBP is a new organization with a new mission; therefore, it is necessary for the Employer to “foster a new culture by developing a professional uniformed image in order to maintain operational continuity, promote CBP’s goal of presenting ‘one-face’ at the border, and meet [its] anti-terrorism responsibilities.”  Additionally, the Union’s proposal is inconsistent with the agreements reached between CBP and the other two unions representing employees affected by the policy.  Therefore, the Union’s proposal to allow cargo shorts as an option for employees in Class 3 environments would result in the “separate and unequal treatment of the CBP workforce represented by NTEU,” causing an “unnecessary distraction” from the CBP’s “priority mission” which “negatively impacts” CBP and its personnel.  Finally, the Assistant Commissioner, Office of Field Operations, who is the management official with overall responsibility for CBP’s workforce, supports this proposal.

CONCLUSION

     Having carefully considered the Employer’s arguments essentially questioning its duty to bargain over the Union’s proposal, the Panel declines to retain jurisdiction over the parties’ dispute.  In this regard, on the basis of the FLRA decisions cited by the Employer, it is arguable that under FLRA case law the Union’s proposal interferes with management’s right to determine the internal security practices of the agency.  Given these circumstances, we are reluctant to issue an order addressing the merits of the dispute until a decision regarding the negotiability of the Union’s proposal has been rendered in the appropriate forum.  This determination to decline to retain jurisdiction is made without prejudice to the right of either party to file another request for assistance if an impasse is reached once the legality of the Union’s proposal has been established.

ORDER

     Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because the negotiability of the Union’s proposal has not been established, the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby declines to retain jurisdiction over the parties’ dispute.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

August 2, 2004
Washington, D.C.