United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Chapter 163, 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, Houston, Texas (Employer).

    After investigation of the request for assistance, which concerns the area of selection for vacancies and reassignments for bargaining-unit employees, the Panel directed the parties to participate in an informal conference with a Panel representative for the purpose of resolving the outstanding issue. The parties were advised that if no settlement was 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 Representative (Staff Attorney) Kenneth E. Moffett, Jr. conducted an informal conference with the parties on April 13, 2000. At the close of the proceeding, the parties remained deadlocked over the issue, and were permitted to submit statements in support of their final offers. Mr. Moffett has reported to the Panel, and it has now considered the entire record.

BACKGROUND

    The Employer services the Houston seaport and airport, including cargo areas. Its mission is to interdict and seize contraband, including narcotics and other illegal drugs; assess and collect customs duties, excise taxes, and fees on imported merchandise; and process persons, carriers, cargo, and mail into and out of the United States. The Union represents a nationwide bargaining unit consisting of approximately 12,000 employees who hold positions such as senior inspector (GS-11); inspector (GS-7 through -11); and import specialist (GS-7 through -13). There are approximately 210 bargaining-unit employees (BUEs) represented by the Union in Houston, 170 of whom are inspectors. At the national level, the parties have a master collective-bargaining agreement (MCBA) which, by extension, is effective through October 30, 2000.

    Organizationally, the Port consists of nine branches at various entry points, including the airport, airport cargo, and the seaport; there is also an administrative office, known as Northbelt. Within each branch, there are several subordinate "functions." These include two "special teams," the Contraband Enforcement Team (CET), within the Cargo Enforcement Branch at the seaport, and the Passenger Analysis Team (PAT), within the Passenger Service Branch at the airport.⁽¹⁾

ISSUE AT IMPASSE

    The parties disagree over what the area of selection for vacancies and reassignments involving bargaining-unit positions should be.

1. The Employer’s Position

    The Employer proposes that the status quo, which meets the parties’ interests, be maintained. Currently, announcements for vacant specialist positions on special teams are made within the teams; announcements for vacant generalist inspector positions on the CET and the PAT are made Port-wide during the annual "open season" pursuant to Article 20 of the MCBA; and voluntary reassignments of inspectors are conducted through the "waiting list" method pursuant to Article 20 of the MCBA.

    Article 20 of the MCBA, entitled "Assignment of Work," governs the reassignment of BUEs.⁽²⁾ In 1997, the parties at the local level agreed to a "Voluntary Reassignment Policy" (VRP), which governs the voluntary reassignment of employees at three specific posts of duty.⁽³⁾ Under the MCBA and the VRP, inspectors who volunteer for reassignment to another branch are placed on a "waiting list" for vacancies within the branch. As vacancies occur, the employee with the longest amount of time on the waiting list for that branch is assigned to the branch. Once assigned to the branch, the supervisor makes the work assignment.

    As to the special teams, there are two types of inspector positions; generalist and specialist. Under Article 20, Section 23, volunteers are solicited for assignment to special teams once a year during an "open season." Where there are too many equally qualified volunteers, selection to the team is made in order of seniority. Volunteers not selected are placed on a waiting list, in order of seniority, until the next open season.⁽⁴⁾ When a vacancy occurs in one of the specialist positions, applicants are solicited and vacancies filled with a "generalist" inspector from within the CET or PAT.

    In the 1996 Port-wide reorganization, employees were permitted to bid on positions, and assignments were made based on seniority. In the reorganization, 75 percent of all BUEs were granted either their first or second bid preference. Following the reorganization, reassignments have been accomplished under Article 20 of the MCBA and the locally negotiated VRP. There is continuous validation that the reassignment policies set forth in those agreements are accomplishing their intent. In this regard, as of April 1, 2000, only one inspector was on a waiting list for reassignment to a non-special teams branch. In addition, in the latest solicitations for the special teams in March 2000, no qualified inspectors applied for either team. The current practice is also justified on the ground that multiple employees may be selected and placed simultaneously, thereby ensuring that important interdiction work performed by inspectors is not interrupted by delays in posting and filling each vacancy sequentially, as would be the case under the Union’s proposal.

    The practice of selecting generalist inspectors who work on special teams for specialist inspector positions is essential for mission-related reasons. During their tenure as generalists, inspectors gain necessary knowledge of geographic area and manner in which interdiction work is performed, and thus make immediate contributions to the special team. These teams were created specifically to perform drug interdiction work, and the learning curve for the special teams is longer than for other units. For example, inspectors on the CET must be trained in how to perform vessel searches, often with advanced technology tools, and must become familiar with 200 docks spread over 75 miles of ship channel.

    It is difficult to recruit volunteers to fill positions on the CET; very few inspectors volunteer because the working conditions at the seaport are poor and physically demanding. Inspectors at the seaport must work in adverse weather conditions and in rodent-infested areas, confront stow-aways, and be subject to being called out at any time of the night. Some inspectors who volunteer for the CET do so with the expectation that, in time, they will become qualified and eligible for selection to one of the career enhancing specialist positions which have better working conditions. If inspectors were eligible for direct reassignment to a specialist position, inspectors would have little incentive to volunteer for the special team. When solicitations are made for volunteers to the CET and no employees volunteer, the Employer has no choice but to assign inspectors to the CET involuntarily.

    Adoption of the Union’s proposal regarding import specialist team leaders would hinder the continuity of the agency’s trade oversight mission, as an employee’s progression to the team leader position is based, in part, on his or her developing significant expertise with specific commodities. The reassignment of journeymen import specialists is unnecessary as reassignment to the positions are effected through an existing rotation policy; and the reassignment of inspectional assistants is not necessary because no vacancies have occurred in those positions since 1996. Finally, the last paragraph of the Union’s proposal would interfere with management’s right to assign work by "limiting . . . [the] ability to assign employees to duties and positions not previously open to volunteers."

2. The Union’s Position

    The Union’s final offer is as follows:

Vacancies for Journeyman and Team Leader Import Specialist, Inspectional Assistants, and Inbond bargaining-unit positions will be announced Port-wide to all bargaining unit positions named above. Where two (2) or more employees who put in for the vacant position are equally qualified, the most senior employee for the position will be selected.

Vacancies for Senior Inspector bargaining unit positions in the PSU, ISU, PAT, ROV, Outbound, ATT, CET, Firearms, Field Training Officer, Cargo/Carrier Compliance and Northbelt will be announced Port-wide to all bargaining unit senior inspectors. Where two or more employees who put in for the vacant position are equally qualified, the senior inspector with the greatest amount of time and grade as a senior inspector shall be selected.

Vacancies for Journeyman Inspectors in the same units named above shall follow the guidelines set forth for the senior inspectors.

Any employee that does not have the option to volunteer for a vacancy will not be reassigned to those areas.

The Employer’s selection practices for reassignment to vacant positions are unfair and should be changed. Currently, employees are selected for reassignment based on their performance of non-work related duties, such as the painting of office walls and murals, and other activities beneficial to the Employer, while on duty. In addition, the Employer reassigns employees to positions for which they have little or no experience. Announcing vacancies Port-wide, by contrast, will provide all BUEs with an opportunity to be considered for vacancies based on qualifications and seniority, and will improve employee morale and the Port work environment. Article 20 of the MCBA mandates that "all employees have opportunities to volunteer and compete for desirable assignments." When the VRP was executed in 1997, the Interest Based Negotiation teams recommended that rotations within posts-of-duty be addressed. The Employer has failed to establish a rotation policy within the Port since that time; in the absence of a rotation agreement, the Employer does not have the right to reassign employees to positions which were not previously open to volunteers.

    In regard to special teams, contrary to the Employer’s contention that inspectors lack interest in the CET because of working conditions, few inspectors volunteer because they do not desire to work under the current CET supervisors; several years ago, under different supervision, inspectors’ interest in working on the CET was high. Under the current practices for the filling of vacancies, inspectors and senior inspectors, many of whom may have more seniority than inspectors in generalist positions on the special teams, are deprived of consideration for vacancies in specialist positions on the special teams. Specialist positions on special teams are highly sought after and enhance an inspector’s career. Allowing senior inspectors and inspectors Port-wide to be eligible for consideration to specialist positions on the CET and PAT is, therefore, justified. Additionally, the Employer’s contention that its current practice is necessary because there is a 6-month "learning curve" for inspectors assigned to special teams lacks merit; all inspectors assigned to either the CET or PAT receive formal training before commencing work on those teams.

    Having considered the evidence and arguments provided by the parties in this case, we conclude that the Employer’s proposal should be adopted to resolve the impasse.⁽⁵⁾ In reaching this conclusion, we find that under the MCBA and the VRP, the parties currently have a comprehensive system governing the reassignment of employees when vacancies occur. In our view, the Union has not sufficiently demonstrated a need to alter the entire system, especially when its concerns appear to be limited to reassignments to the specialist positions on special teams. Further, the Union has offered very little credible evidence to substantiate its allegations of favoritism with respect to reassignments. In the absence of specific examples, the Panel is in no position to assess the truth of the Union’s claims. Moreover, it is unclear, except for a single recent instance cited by the Union in its post-conference submission, whether the employees it alleges to have been treated unfairly were even on a waiting list for voluntary reassignment, in accordance with the MCBA or the VRP and, therefore, in a position to be considered for selection. Nor did the Union offer instances of specific challenges, in the form of grievance "disputes," to address concerns about the Employer’s reassignment selections.

    As discussed below, a number of mission-related concerns support maintaining the status quo. While working in generalist positions on the CET, we are persuaded that inspectors gain significant knowledge of the operation and, therefore, may make a more immediate impact if selected to one of the specialist positions. The current system provides a necessary incentive for inspectors to volunteer for this more difficult work. If inspectors could simply bypass the unfavorable working conditions of that position by securing direct reassignment to a specialist position on the CET, there would be even less incentive for inspectors to volunteer for a generalist position. In addition, because each reassignment vacancy need not be posted and filled, the Employer may make multiple reassignments simultaneously. Consequently, there is less delay in filling important inspector vacancies, and less likelihood that important drug interdiction work will be interrupted. Accordingly, we shall order the adoption of the Employer’s proposal.

    Pursuant to the authority vested in it by the Federal Service Labor-Management 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 § 2471.11(a) of its regulations hereby orders the adoption of the following:

    The parties shall adopt the Employer’s proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

June 7, 2000

Washington, D.C.

1.In 1997, under special Congressional funding, the Employer created two Anti-Terrorist Teams (ATT), one within CET at the seaport, and one within PAT at the airport. Each ATT unit consists of two inspector or senior inspector positions. The parties agree that to initially fill the ATT positions, the Employer solicited for inspector volunteers Port-wide. The instant dispute had its genesis in 1999, after the Employer announced an ATT inspector vacancy in the CET; the announcement was made only within CET, not Port-wide. The Union objected and requested bargaining. While the parties initially negotiated over the area of selection for reassignment to special teams positions, they subsequently agreed to bargain - and reached impasse - over the area of consideration for all bargaining-unit positions at the Port.

2.Under Article 20, Part I, the Employer “retains the right to assign, reassign, and detail employees; to assign work and determine the personnel by which agency operations shall be conducted.” Article 20, Part IX, Section 23, provides that the parties “may negotiate locally over the assignment of employees to special teams,” and establishes a detailed selection procedure for special teams in the absence of local agreement.

3.Under the VRP, inspectors at the Port offices (Northbelt), the Intercontinental Airport, and the Barge office, may volunteer for reassignment to another post of duty pursuant to Article 20 of the MCBA; inspectors requesting reassignment are placed on a waiting list and are ranked in seniority order (time in series, time in grade, time in Customs, time in Government service).

4.The Employer is further authorized to solicit volunteers for special teams inspector and senior inspector positions at other times when there are no volunteers on the waiting list.

5.Because we adopt the Employer’s proposal, it is unnecessary to address its contention that the last paragraph of the Union’s proposal is non-negotiable.