In the Matter of )
DEPARTMENT OF THE TREASURY )
U.S. CUSTOMS SERVICE )
WASHINGTON, D.C. )
and ) Case No. 91 FSIP 55
NATIONAL TREASURY EMPLOYEES )
The National Treasury Employees Union (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute between it and the Department of the Treasury, U.S. Customs Service, Washington, D.C.
After investigation of the request for assistance, the Panel directed the parties to meet informally with Chief Legal Advisor Donna M. Di Tullio for the purpose of resolving the issue concerning awards. They were advised that if no settlement were reached, Ms. Di Tullio would report to the Panel on the status of
the dispute, including the parties' final offers, and her recommendations for resolving the issue. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
The parties met with Ms. Di Tullio on December 3, 1990, in Washington, D.C., but they were unable to reach a settlement. Ms. Di Tullio has reported to the Panel based on the record developed by the parties, and the Panel now has considered the entire record
The Employer's mission is to enforce the U.S. Customs laws through the clearance of overseas passengers and cargo, and monitor
border points of entry to deter and apprehend smugglers and those
entering the country without proper authorization. The Union represents approximately 11,000 employees in a nationwide consolidated bargaining unit; the majority hold positions as customs inspectors. The parties recently negotiated a successor term agreement which they anticipate shall become effective shortly; until then, they are following the terms of their current collective-bargaining agreement (CBA) which was
negotiated in 1987.
The dispute arose when the Employer implemented Operation Short STOP, an intensified multi-agency enforcement operation along the southwest border. The program was implemented on October 29, 1990, for a 3-month period ending January 31, l991. The primary focus was to deter drug smugglers by supplementing existing resources at the border and performing intensified entry examinations.
In order to staff the operation, the Employer solicited
approximately 100 volunteer customs inspectors and canine officers or temporary assignment to Customs districts in San Diego, California; El Paso, Texas; Laredo, Texas; and Nogales, Arizona. When the Employer received insufficient volunteers, it reassigned involuntarily five customs inspectors in accordance with Article 20, section 5, of the parties' CBA. Both parties agree that the involuntary reassignments were conducted properly, pursuant to the terms of the negotiated agreement.
ISSUE AT IMPASSE
The parties disagree over whether employees involuntarily reassigned to Operation Short STOP should be awarded any monetary recognition.
POSITIONS OF THE PARTIES
1. The Union's Position
The Union proposes that all employees involuntarily reassigned to participate in Operation Short STOP should receive a monetary award of $250. An award should be granted to those employees who were directed to undertake dangerous duty, potentially involving armed confrontation with drug smugglers in remote areas, which took them away from their families during the holidays.
Article 20, section 5, of the CBA, which provides a procedure for involuntarily reassigning employees through inverse seniority, does not constitute a waiver of the Union's right to bargain. Rather, the proposal is consistent with the Union's right to bargain over appropriate arrangements for employees adversely affected by the exercise of a management right. The proposal also is consistent with Article 37 of the CBA which acknowledges the Union's right to negotiate over the impact and implementation of a management decision affecting working conditions. Since only five employees were involuntarily reassigned, the cost to the Employer of implementing the proposal would be minimal.
2. The Employer's Position
The Employer opposes granting such monetary awards. Those reassignments were carried out pursuant to the terms of the parties' CBA which do not contemplate additional compensation for those involuntarily reassigned. Moreover, granting awards to those forcibly assigned to the operation would set a bad precedent the next time the Employer solicits volunteers for such duty.
Having considered the evidence and arguments presented by the parties, we find that the impasse should be resolved on the basis of the Employer's position. In this regard, it would be inappropriate to provide cash awards to those who were involuntarily reassigned to Operation Short STOP, since doing so is likely to have a negative effect on the morale of the majority who volunteered to take part in the project. Furthermore, there also may be an adverse effect on the Employer's future ability to obtain volunteers for duty, if the rewards go to those who are "drafted" for the assignments. Moreover, it is reasonable to assume that customs inspectors, when they accepted a position with the agency, understood they would be assigned on occasion to hazardous duties; therefore, there is no need under the circumstances in this case to
provide them with additional monetary awards recognizing their service. There is nothing in the record to show that their
performance warranted such recognition.
Pursuant to the authority vested in it by section 7119 of
the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of the proceedings instituted under section 2471.6(a)(2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer's position.
By direction of the Panel.
Linda A. Lafferty
March 1, 1991