DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE WASHINGTON, D.C. and NATIONAL IMMIGRATION AND NATURALIZATION SERVICE 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 IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL,
AMERICAN FEDERATION OF GOVERNMENT
Case No. 98 FSIP 162
DECISION AND ORDER
The National Immigration and Naturalization Service Council, American Federation of Government Employees, AFL-CIO (Union), and the Department of Justice, Immigration and Naturalization Service, Washington, D.C. (Employer or INS), filed a joint request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119.
Following an investigation of the impasse, arising from impact-and-implementation bargaining over the Employer’s decision to enforce its "overseas" rotation regulation regarding employees stationed in Canada, the Panel directed the parties to participate in an informal conference with a Panel representative to resolve the dispute. If the parties were unable to reach a settlement, the representative would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the matter. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Accordingly, Panel Representative (Staff Attorney) Sara L. Walsh conducted an informal conference with the parties on October 15, 1998, at the Panel’s offices. Although they explored possibilities for settlement, they were unable to resolve the dispute. Ms. Walsh reported to the Panel, and it has now considered the entire record, including written statements in support of their final offers submitted by the parties after the close of the informal conference.
The INS facilitates the legal entry of visitors and immigrants into the United States (U.S.) by granting naturalization or asylum; it deters illegal immigration by apprehending and removing those entering the U.S. unlawfully. Employees work as immigration inspectors, immigration examiners, criminal investigators, deportation enforcement officers, detention officers, asylum officers, and in clerical and support positions at pay grades ranging from GS-5 through -13. The parties’ master collective-bargaining agreement (MCBA) is due to expire on April 14, 2000.
ISSUE AT IMPASSE
The parties disagree on the time-frame for the return of employees currently stationed in Canada to positions in the U.S.(1)
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Employer proposes the following wording:
(1) Employees who have been on a continuous overseas tour of duty for between 4 and 9 years will be permitted, with the favorable recommendation of local and regional management, to receive a 1-year extension; and (2) Employees who have been on a continuous overseas assignment for over 10 years will be permitted, with the favorable recommendation of local and regional management, to receive a 1-year extension. If an employee encounters difficulty in obtaining an assignment during the first year and can show that he/she acted with due diligence in competing for positions within the United States, an additional 1-year extension may be granted.
The current overseas rotation policy provides for an initial 2-year duty tour with three possible 1-year extensions upon employee request and at the discretion of "appropriate management officials"; the maximum tour is 5 years.(2) Under this system, an employee may rotate back to the U.S. either by: (1) applying for a merit-based promotion or other competitive position; or (2) submitting a rotation preference list of five preferred duty locations for seniority-based placement.(3)
Essentially, the proposal seeks to bring the rotation practice into compliance with the INS’s policy to achieve consistent agency-wide application and enforcement. Currently, only bargaining-unit employees stationed in Canada are not subject to the policy. Previously, the Employer had inadequate funding to cover the cost of returning employees to the U.S. within the policy’s stated time frames. Due to revived Congressional interest in law enforcement and prevention of illegal immigration, however, the INS’s budget is now sufficient to rotate employees stationed in Canada back to the U.S. To accomplish its goal, the proposed 1-year extension gives employees sufficient time to make preparations without unnecessarily delaying their return to the U.S.
Timely restoration of the rotation policy is in the Government’s best interest because it will reestablish employees’ mission-critical ties to the U.S. without fostering their denial about the inevitability of reassignment. By leaving open the opportunity for a second extension to those with more than 10 years in Canada, the proposal rewards employees who can show that they have made a good faith effort to obtain a position at a desired duty post. Simultaneously, it discourages employees from rejecting appointments or requesting additional extensions to prolong their stay. In actuality, the proposal would probably give employees 18-months before reassignments take affect because administrative processing of applications takes up to 6 months. The Union’s proposal is unreasonable because, "absent allowing them to stay indefinitely, there is little that can be done to alleviate the emotional," psychological, and financial impact of the move. Instead, the Union’s proposal "merely delays the inevitable" in an attempt to postpone employees’ loss of overseas benefits for as long as possible.(4) It also would unfairly deny employees in the U.S. opportunities to rotate into assignments in Canada.
2. The Union’s Position
The Union proposal is as follows:
(1) Employees who have been on continuous overseas assignment for a period of 10 or more years will be able to apply for a maximum of four additional 1-year extensions of their overseas tour. Absent discipline or performance problems, these requests will be approved; (2) Employees who have been on continuous overseas assignment for a period of more than 5 years but less than 10 years will be able to apply for a maximum of three additional 1-year extensions of their overseas tour. Absent discipline or performance problems, these requests will be approved; and (3) Employees who have been on continuous overseas assignment for a period of more than 3½ years but less than 5 years will be able to apply for a 1-year and a 6-month extension, for a total of 18 months. Absent discipline or performance problems, these requests will be approved.
Under the Union’s proposal, time frames for employees’ return to the U.S. are based on the length of employees’ Canadian service. Those with 10 or more years in Canada would receive the longest extension period while those with under 5 years would receive the least. At maximum, however, all employees would return to a stateside position within 4 years. Employees stationed in Canada should have at least a 1-year "waiver" period before having to apply for a position, submit a rotation list, or prepare to move because the Employer essentially treated them as if they were in permanent, non-rotating U.S. positions. Its failure to enforce the policy for at least 7 years, combined with local management’s assurances of automatic extensions, created the impression that employees could remain in Canada indefinitely. As a result, employees made personal, professional, and financial decisions in reliance on this understanding; preparing to return to the U.S., therefore, requires more time than the Employer’s proposal would permit.(5)
On a personal level, moving back to the U.S. will cause hardships related to employees’ child custody arrangements, children’s schooling, and family ties in Canada. Financially, the loss of overseas benefits will affect employees’: (1) incomes and standards of living; (2) spouses’ employment and retirement eligibility; (3) home purchases; and (4) other long-term financial commitments in Canada. Professionally, employees may have difficulty finding acceptable positions in the U.S. because, unlike many other Federal agencies, the Employer does not provide them with priority job placement. They also will lose the benefit of remaining in Canada for which some sacrificed promotions to higher-graded, earlier retirement-eligible law enforcement positions. "To require these employees to return to the United States within a year and with no guarantees . . . (of) a location of their choice is just not fair."
Upon careful review of the evidence and arguments presented, we conclude that the dispute should be resolved through the adoption of compromise wording which permits employees with 10 or more years in Canada to request two extensions of their overseas tour, the first for 18 months and the second for 1 year. Employees with more than 5 but less than 10 years may request an 18-month extension, and employees with 3½ to 5 years may request a 1-year extension. Approval of such requests will be granted unless the employee has a disciplinary or performance problem.
In our view, the time frames in the compromise reflect a reasonable return schedule, tailored to meet employees’ needs. Preliminarily, the record is clear that the Employer bears significant responsibility for the current situation. The extensions in each length-of-service category are warranted, therefore, to adjust for decisions employees made because they believed their assignments in Canada would be virtually permanent. Those with the longest service in Canada will be eligible to receive an initial extension that is basically identical to the first part of the Employer’s proposal, i.e., a 1-year extension plus the 6-month period to process reassignment applications. The possibility of a second 1-year extension, as necessary, recognizes that these employees made more extensive financial and personal commitments related to their family, work, housing, and schooling requirements. In any event, under this approach, within 3 years employees’ mission-critical connections to the U.S. community will be re-established. Moreover, the certainty of their return should discourage the belief that employees might delay their reassignments indefinitely. Finally, the compromise imposes the limited criteria for denying extensions contained in the Union’s proposal which, in our view, is clearer than the "due diligence" standard the Employer proposes.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the parties’ failure 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 § 2471.11(a) of its regulations, hereby orders the following:
The parties shall adopt the following wording:
(1) Employees with 10 years or more continuous overseas service may request: (a) one 18-month extension of their overseas tour; and (b) a second 1-year extension of their overseas tour.
(2) Employees with more than 5 but less than 10 years may request one 18-month extension; and
(3) Employees with 3½ to 5 years may request a 1-year extension of their overseas tour.
Absent discipline or performance problems, these requests will be approved.
By direction of the Panel.
H. Joseph Schimansky
December 4, 1998
1.Both parties agree that at least 42