DEPARTMENT OF THE TREASURY U.S. CUSTOMS SERVICE NEWARK, NEW JERSEY and CHAPTER 161, NATIONAL TREASURY EMPLOYEES UNION Case No. 00 FSIP 100

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF THE TREASURY U.S. CUSTOMS SERVICE NEWARK, NEW JERSEY
and CHAPTER 161, NATIONAL TREASURY EMPLOYEES UNION	Case No. 00 FSIP 100

DECISION AND ORDER

Chapter 161, National Treasury Employees Union (Union or NTEU) 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, Newark, New Jersey (Employer, Customs, or Customs Service).

Following an investigation of the request for assistance, arising from negotiations over the staffing of a Monday to Friday 4 p.m. to midnight tour for Customs Inspectors at Newark International Airport (NIA),⁽¹⁾ the Panel determined that the dispute should be resolved through the issuance of an Order to Show Cause why the Panel should not maintain the staffing plan established by the parties’ settlement agreement in Department of the Treasury, U.S. Customs Service, Newark Area, Newark International Airport, Newark New Jersey and Chapter 161, National Treasury Employees Union, Case No. 97 FSIP 136.⁽²⁾ After considering the entire record, including the parties’ statements of position, the Panel would take whatever action it deemed appropriate to resolve the impasse, which may include the issuance of a Decision and Order. Pursuant to this procedure, the parties submitted their final offers and initial written responses to the Order to Show Cause.⁽³⁾ Only the Employer submitted a rebuttal. The Panel has now considered the entire record.

BACKGROUND

The Employer’s mission is the enforcement of Customs and related laws and the collection of revenues from imports. The Union represents approximately 800 employees who are part of a nationwide, consolidated bargaining unit of about 11,500. They hold positions such as customs inspector, import specialist, K-9 enforcement officer, and administrator, at grades GS-5 through -11. At the national level, the parties’ master collective-bargaining agreement (MCBA) expired on September 30, 1999, but remains in effect while negotiations for a successor agreement are being explored.

ISSUE AT IMPASSE

The parties disagree over the number of customs inspectors regularly to be assigned to the Monday to Friday 4 p.m. to midnight shift.

POSITIONS OF THE PARTIES

1. The Employer’s Position

The Employer proposes to increase "actual" staffing of the summer 4 p.m. to midnight shift from 8 inspectors to 11 inspectors, with minimum staffing of 5 inspectors, and to increase "actual" staffing for the remainder of the year from 6 to 9 inspectors, with minimum staffing of 4.⁽⁴⁾ The Employer also proposes to implement a hardship policy that would allow employees with demonstrable hardships to request to be exempt from working certain tours.

The proposed change is necessary to bring the workforce into better alignment with the workload. In this regard, the number of passengers coming through NIA has more than doubled since 1996, and the number of passengers coming through the airport between 8 p.m. and midnight has increased by 8 percent. Over the past few years, overtime expenditures in general, and during the late hours in particular, have steadily risen as passenger arrivals have increased. During this period, however, only the late tour has not had a staffing increase. This is reflected in data which show that 30 percent of the daily overtime budget is currently spent from 9 p.m. to midnight. Moreover, increasing the level of staffing would not decrease the overall use of overtime; instead, it would make overtime funds available for "value added special operations, including critical enforcement activities." Additionally, because the later tour of duty has been consistently supplemented through the assignment of inspectors on overtime, increasing the staffing level to 11 employees would maintain the current staffing status quo, and merely change the pay status of those inspectors.⁽⁵⁾

Contrary to the Union’s assertion, it is not the case that current staffing is adequate simply because the percentage of daily staff working from 9 p.m. to midnight is equal to the percentage of daily passengers arriving from 9 p.m. to midnight. Passenger arrivals are not the only factor used to determine staffing levels. Other factors include "targeting, body scanning, pat down approvals, and recordation of all secondary baggage examinations." Furthermore, the Union errs in claiming that the new tour would have a disproportionate impact on female inspectors because they are under-represented among inspectors, but are nevertheless required to constitute half of the staffing on any given tour so that pat downs of female passengers can be performed. In fact, only two inspectors of each gender are required on each tour, and 40 percent of the total inspector workforce are women.

2. The Union’s Position

The Union proposes to have "nine inspectors assigned to the 4 p.m. to midnight tour in the summer and seven inspectors assigned to the 4 p.m. to midnight [tour] in the winter." The Employer’s proposal to increase regularly scheduled staffing levels would not align the workforce with the workload because the number of passengers arriving at the airport begins to decline between 7 and 8 p.m. In addition, it is not necessary to increase staffing, since statistics from 1998 indicate that the percentage of staff working from 9 p.m. to midnight is equal to the overall daily percentage of passengers arriving during that time period. Moreover, the statistics indicate that the peak hours of operation are between noon and 6 p.m. "when the number of passengers arriving is consistently highest." Thus, "if the Agency’s intent was to align the workload, then it would be concentrating on the hours when arrivals are the highest."

The Union is not alone in expressing skepticism concerning how the Employer establishes its "workload ratios." In this regard, in a Government Accounting Office (GAO) report issued in August 1998 to the House Subcommittee on Government Reform and Oversight, GAO stated that it could not perform the analyses requested by the Subcommittee because

Customs does not have a systematic, agency-wide process for assessing the need for inspectional personnel or allocating them to its commercial cargo ports . . . While Customs uses a quantitative model to determine the need for additional inspectional personnel to process air passengers, the model is not intended to establish the level at which airports should be staffed, according to Customs officials.⁽⁶⁾

The Union’s decision to agree to a year-round 4 p.m. to midnight tour eliminates the need to increase staffing. In fact, the Union believes that the only reason that the Employer has been regularly assigning as many inspectors as it has on overtime between 9 p.m. and midnight (3 to 5 inspectors) is to manufacture a "need for a regular tour." Moreover, the Employer’s claim that its proposal will not result in a loss of overtime is not credible because it contradicts its position in an earlier case involving the parties where it stated that it planned to increase overtime at NIA.⁽⁷⁾ The Customs Service’s previous rationale for assigning irregular hours to inspectors, i.e., that inspectors are on notice when they are hired of this possibility, and "the Panel’s complete acceptance of this rationale," as demonstrated in its previous decisions involving this matter, "is nothing new in labor history."⁽⁸⁾

An additional reason for rejecting the Employer’s proposal is the disproportionate adverse impact it would have on female inspectors. Fifty percent of a tour’s staffing must be female because only female inspectors can do pat down searches of female passengers. Since there are fewer female inspectors than male inspectors, the female inspectors will be required to work the late shift more frequently than their male inspector colleagues. This is comparable to the mistreatment of female mill workers in nineteenth-century Lowell, Massachusetts. Finally, in spite of the numerous instances in which the Panel has sided with employers where the issue of "tours and employee welfare" has been raised, "the Union would like to believe that this time the Panel will actually look at the data and discover that there is no reason to increase the numbers on these tours in the manner the Agency proposes."

CONCLUSIONS

Having carefully reviewed the evidence and arguments presented by the parties in support of their proposals, we are persuaded that a compromise solution should be adopted to resolve their dispute on the central issue of staffing levels for the 4 p.m. to midnight tour. Under the compromise, we shall order that the summer tour normally be staffed with 10 inspectors with minimum staffing of 5, and that the staffing levels during the remainder of the year be set at 8 inspectors, with minimum staffing of 4. In addition, the Employer’s hardship policy and, for the sake of completeness, its wording on the other matters the parties negotiated where tentative agreement was apparently reached,⁽⁹⁾ also shall be imposed.

This dispute is the latest in a series of impasses the Panel has received from the Customs Service and NTEU involving proposed changes in staffing levels and tours of duty. While the context of these disputes has varied, in our view the underlying issue has remained the same. The Customs Service has repeatedly stated that the changes it proposes are intended "to align the workforce with the workload so that overtime is not used for regular and recurring workloads." NTEU, on the other hand, has steadfastly argued that the proposed changes are really an attempt to reduce overtime opportunities for inspectors which would adversely affect their quality of life. As the Union accurately points out, in the past the Panel has been persuaded by the evidence and arguments presented by the Customs Service in deciding these disputes, and the outcome here essentially is no different. In light of our previous experiences with the issue, and the likelihood that additional impasses may arise concerning the matter, we take this opportunity to discuss some of the challenges that were encountered in understanding certain aspects of the record in this case. What follows, therefore, should serve the dual purpose of explaining the basis for our decision, and of providing guidance to parties who may face an impasse over similar issues in the future.

Preliminarily, the parties are reminded that, as in any case before a neutral third party, they jointly share the burden of creating the record upon which a decision ultimately is based. With this clearly in mind, we turn first to the statistical information provided by the Employer to support its contention that its proposal represents the better staffing level.⁽¹⁰⁾ While some of this data is crucial in supporting the Employer’s case, particularly information showing that more inspectors work overtime than on the regular tour during the late hours, its effectiveness is undercut by the Employer’s failure in its rebuttal statement to address the significance, if any, of the finding in the GAO report that the Customs Service has no systematic way of determining appropriate staffing levels of inspectors at airports. In view of the report, and the fact that the Customs Service has relied on workload-to-inspector ratios before in impasses that have come to the Panel, the importance of these ratios need to be more fully explained. Even more telling is the Employer’s failure to explain why the "normal absence pattern" of inspectors working the later shift appears to be so high.⁽¹¹⁾ By not focusing on this issue directly, the Employer leaves the impression that high absentee rates are the real reason more inspectors work overtime than on the regular tour and that its proposal may merely be a way to avoid addressing a more fundamental problem.⁽¹²⁾

Furthermore, the Employer has not explained the means by which it has arrived at some of the figures used to support its position. For example, the Employer states without elaboration that an 8-month delay in adding two inspectors to the 4 p.m. to midnight tour cost $50,000. In another place, also without elaborating, the Employer contends that its proposal would save "approximately $85,000 per year in overtime costs." Without calling into question the Employer’s figures, the Union states that it agreed to change the tour’s starting time from 3 p.m. to 4 p.m. to "guarantee[] additional regular-time coverage through midnight that would equal two additional inspectors and would result in approximately $35,000 in savings of overtime over the year." The Employer does not challenge this assertion. It is impossible on the basis of the record to reconcile these figures, or to know how the Union and the Employer calculated them.

Another difficulty with the Employer’s use of statistics arises from its reliance on passenger arrival data to support increases in staffing, while simultaneously asserting that passenger arrivals are not fully determinative of necessary staffing levels because inspectors perform additional duties not directly related to the number of arriving passengers. The Employer has not elaborated on how much time these additional duties require, how many inspectors are necessary to perform them, or whether they are performed more frequently during late hours than at other times. Additionally, the Employer has repeatedly asserted that it will redirect overtime expenditures into "value added special operations, including critical enforcement activities." It has never specifically identified the activities it intends to add, however, or indicated whether it has, in fact, redirected overtime expenditures in the past. Finally, although the Employer disputes the Union’s contention that increased staffing of the later tour will adversely affect female inspectors, it has not provided hard data conclusively refuting the Union’s position.

The Union’s presentation of its case is of equal concern. First of all, it cites the GAO report as evidence of the "serious problems" the Customs Service has in establishing its workload ratios. It then relies on the very same data used by the Employer to reach a different conclusion. This raises questions concerning the relevance of the GAO report in the context of this case. Moreover, while we certainly can appreciate the Union’s excursion into the history of the labor movement, we nevertheless believe it would have been well served by submitting a rebuttal statement addressing the arguments and evidence set forth by the Employer, rather than relying so heavily on appeals to emotion. Bare assertions regarding the adverse affect the Employer’s proposed change would have on the quality of life of inspectors, particularly female inspectors, are no substitute for the hard work of accumulating, and then effectively presenting, substantive evidence to support such claims. In this connection, a response to the Employer’s contention that most overtime between 9 p.m. and midnight is worked by inspectors who remain after their 1 p.m. to 9 p.m. shift has ended might have helped the Union’s cause. A statistical breakdown of how much more frequently inspectors would have to rotate through the less desirable shift under the Employer’s proposal also could have substantiated the Union’s adverse impact allegations. Instead, we are left with the perception that, like a number of other previous cases the Union cites, the real issue at the heart of this matter is the Employer’s attempt to change a past practice which has made the earning of overtime income by inspectors routine and predictable.

There also appears to be no discernable support in the record for the Union’s belief that the Employer has deliberately assigned too many inspectors on overtime the past 3 years during the 9 p.m. to midnight time period to justify its proposed increases in staffing levels. As stated above, the need to supplement the number of regular-time inspector assignments appears to be more a function of relatively high absenteeism. In this regard, the Union has done no better job than the Employer in explaining the role absenteeism plays in the issue before us. Nor is there necessarily any inconsistency between the Employer’s position in a previous case, where it stated that it would increase overtime opportunities at NIA, and its position here. The data relied upon by both parties confirm that overtime expenditures at NIA have increased every year from FY 1997 to FY 1999.⁽¹³⁾ At this point in the process, therefore, the Union has presented no basis for disputing the Employer’s statement that "all employees who work overtime at NIA will still have an opportunity to earn the same amount of overtime."

As these comments indicate, neither side has clearly demonstrated that its proposed staffing levels should prevail. This is somewhat understandable where the difference between their final offers is minimal, and the setting of appropriate levels is based on so many factors that scientific precision may never be attained. Nevertheless, we suggest that in the future the parties document their information and present salient arguments with evidence. For the reasons expressed herein, we shall order the adoption of a compromise which the parties should have reached on their own but for the poor state of their relationship.

ORDER

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 following:

The parties shall adopt the following wording to resolve their impasse:

1. The current 3x11 tour that converts to a 4x12 tour June 15 through September 15 will be replaced with a year-round 4x12 tour.

2. Actual staffing will be increased by two inspectors on the 4x12 tour (year round) as follows:

Actual Minimum

From May 1 to October 31 10 5

Remainder of the year 8 4

3. The tour change and increased staffing as noted above will be implemented effective November 1, 2000, when the staffing for the "Remainder of the year" goes into effect.

4. The tour will be staffed first with volunteers.

5. If there are not enough volunteers, all tours at NIA will be staffed by a rotation of all inspectors who will rotate equally via a wheel concept through all tours based on seniority, and other agreements between the parties currently in force.

6. A hardship policy will be implemented which will provide employees, with substantiated legitimate hardship, who can demonstrate that they have sought other alternatives without success, with the opportunity to request to be exempt from working one of more of the tours depending on the circumstances. Requests to be exempt from the 4x12 tour will initially be considered jointly by the Branch Chief and the NTEU representative for NIA. If there is no agreement between them concerning the employee’s request, then the final decision whether to exempt the employee will be made by the Branch Chief.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

September 25, 2000

Washington, D.C.

1. During these negotiations, the record indicates that the parties agreed to eliminate a winter tour from 3 p.m. to 11 p.m., and to staff the late Monday to Friday tour year round from 4 p.m. to midnight. The parties apparently also agreed that the tour would be staffed first by volunteers, and if there are not enough volunteers, all inspectors assigned to NIA would rotate equally via a wheel concept through all tours based on seniority, and in accordance with other agreements in effect between the parties. The change in staffing levels would be implemented November 1, 2000.

2. In that case, the parties agreed, among other things, to create a Monday to Friday, 4 p.m. to midnight tour annually during the period of June 15 to September 15, and normally to staff the tour with eight inspectors, with minimum staffing of five inspectors.

3. After the Panel received the parties’ initial written responses, a telephone conference was conducted to clarify the Union’s final offer. Subsequently, the Union was permitted to submit a brief supplemental statement clarifying its position.

4. The Panel interprets “actual” staffing to mean the number of inspectors normally scheduled to work in non-overtime status on a given tour. According to the Employer, the number of inspectors who report for work depends primarily on leave usage.

5. In this connection, the Employer states in its initial response to the Order to Show Cause that “we have staffed the late tour with an average of 8 to 9 inspectors, including inspectors working on overtime.” In its rebuttal statement, it goes on to explain that, because of leave usage, to ensure that 8 or 9 inspectors report to work on the late shift, the Employer routinely schedules 11 inspectors for the tour.

6. Union Response to Order to Show Cause at 4, quoting Attachment B at 4. The report also stated that GAO could not perform workload-to-inspector ratio analyses because [GAO] did not have a sufficient level of confidence in the quality of the workload data. [GAO] identified a few significant discrepancies in the workload data [it] obtained from Customs headquarters and the ports [GAO] contacted, and [GAO] did not identify any systematic controls over the quality of the data. (Union Response to Order to Show Cause, Attachment B at 1.)

7. The Union refers to Department of the Treasury, U.S. Customs Service, New York Customs Management Center, Elizabeth, New Jersey and Chapter 161, National Treasury Employees Union, Case No. 00 FSIP 30 (April 25, 2000), Panel Release No. 431.

8. The Union cites Andrew Carnegie’s efforts to break the union at Edgar Thomson Steel Works in 1888 and at the Carnegie Steel Works in Homestead, Pennsylvania, in 1892 (“where Pinkerton’s opened fire on strikers with deadly results”) as comparable examples where greater efficiency was attained by imposing longer hours on the American worker.

9. The Employer’s proposed hardship policy is essentially the same wording imposed by the Panel in Department of the Treasury, U.S. Customs Service, Miami, Florida and National Treasury Employees Union, Case No. 98 FSIP 92 (September 28, 1998), Panel Release No. 413.

10. In this regard, the data primarily show that there has been a 30-percent increase in passenger volume at NIA from FY 1997 to FY 1999; an 8-percent increase in passengers during these years between the hours of 8 p.m. and midnight; an increase in the passenger-to-inspector ratio between 9 p.m. and midnight; steady increases in actual overtime expenditures for baggage processing activities from FY 1997 to FY 1999; and, generally, more inspectors working overtime on weekdays between 9 p.m. and midnight during that 3-year period than working regular time.

11. In this connection, the Employer apparently believes it will have to schedule 11 inspectors to work the regular 4 p.m. to midnight shift to ensure that 8 or 9 inspectors actually report for duty.

12. This may account for the Employer’s willingness during the negotiations leading up to this impasse to accept a summer staffing level of 10 inspectors, and a level for the remainder of the year of 8, i.e., the compromise we are imposing.

13. As we indicated elsewhere, however, the statistics do not clearly indicate how the increases have been allocated.

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DEPARTMENT OF THE TREASURY U.S. CUSTOMS SERVICE NEWARK, NEW JERSEY and CHAPTER 161, NATIONAL TREASURY EMPLOYEES UNION