United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    The 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 Homeland Security (DHS), Border and Transportation Security Directorate, Bureau of Customs and Border Protection, Washington, D.C. (Employer).

    Following an investigation of the request, which concerns bargaining over the impact and implementation of the Employer’s decision to have employees provide after-hours work coverage,^1/ the Panel determined that the dispute should be resolved through written submissions with rebuttal statements. The parties were informed that after considering the entire record, the Panel would take whatever action it deems appropriate to resolve the matter, which may include the issuance of a Decision and Order. Written submissions were received from the parties pursuant to this procedure and the Panel has now considered the entire record.

    The Employer’s overall mission is to control and protect the Nation’s borders, at and between the official ports of entry, by: (1) preventing terrorists and terrorist weapons from entering the United States; and (2) facilitating the flow of legitimate trade and travel. The Union represents a bargaining unit consisting of approximately 14,000 professional and non-professional employees who were formerly part of the U.S. Customs Service. When DHS was established in 2003, these employees were moved there from the Department of the Treasury.

    The parties disagree over the extent to which: (1) employees should be compensated for providing after-hours work coverage; that is, whether they should be paid for the entire time they are assigned to after-hours duty ("standby duty"^2/), or paid only for the time they actually are responding to calls and inquiries ("on-call status"^3/); and (2) seniority should be a factor in determining who would be assigned to an after-hours work shift.

a. The Employer’s Position

The Employer proposes the following:

Client Representatives providing after-hours shift coverage will be considered to be in an on-call status. While serving in an on-call status, employees will be compensated from the time they respond to a call through to the time when the issue raised by the call is resolved.

The Employer contends that the conditions under which employees are to make themselves available for after-hours duties comport with the requirements under law and regulation that would place them in an on-call status. In this regard, based upon other provisions already agreed upon by the parties, employees would have certain flexibilities while assigned to an after-hours shift; that is, they would not be assigned to a particular duty station; rather, they could choose to perform the work at home, at their duty station, or at another Employer facility resulting in a limited infringement upon their social, family and personal activities. While on-call, CRs would have the responsibility to accept communications from the Help Desk after normal duty hours and would be allotted a reasonable amount of time to respond to calls. In this regard, they would be provided with cell phones, laptop computers and a toll-free telephone number to perform after-hours duties outside the employees’ duty stations. Furthermore, employees would have the flexibility to trade after-hours work shift assignments with other qualified employees. Therefore, since there would be few restrictions on the personal activities of employees during their assignment of after-hours coverage, employees would be in an "on-call status." The Union’s proposal, however, would provide for employees to only perform coverage in a "standby" status that would dictate the work assignment and excessively infringe on the employees’ ability to engage in personal activities while providing after-hours shift coverage. Decisions of the Comptroller General, General Accounting Office, support the Employer’s position that employees must be considered to be in an on-call status, given that they have certain flexibilities as to where they perform after-hours duties; accordingly, CRs should receive overtime compensation or compensatory time only for the amount of time they actually perform after-hours work.^4/

b. The Union’s Position

The Union’s proposal is as follows:

Client Representatives providing after-hour coverage will not be required to carry or respond to cell phones, pagers, telephone calls or other paging or communication devices unless they are in a duty and pay status, i.e., in a ‘standby status.’ Client Representatives will be considered to be in a duty status entitling them to standby pay during the entire time they are required to provide after-hour shift coverage.

The Union maintains that the proposal to place employees in a standby pay status, when they are required to carry beepers, is negotiable; the Federal Labor Relations Authority (FLRA) and a reviewing court have determined that a similar proposal did not violate an agency’s right to direct and discipline employees, assign work and determine the technology of performing work.^5/ Pay is warranted for the entire duration of an employee’s after-hours work assignment, regardless of whether any work actually is performed, because employees must be in a constant state of readiness to perform the work. In this connection, electronic devices make it possible for employees to be reached easily, and they should be compensated for the infringement and intrusiveness in their personal lives of having to remain close to home and be available on a 24-hour basis on weekends. They also would not be able to drink alcoholic beverages, travel out of the metropolitan area, or be certain that they can attend or participate in an extended social activity (e.g., attend a child’s school play or participate in a sporting event without interruption), or have an uninterrupted nights sleep if called upon to answer inquiries or respond to emergencies. Placing these employees in a standby pay status also is likely to result in a greater pool of volunteers. Finally, the Panel has supported proposals similar to the Union’s in prior cases.

    a. The Employer’s Position

    In essence, the Employer proposes to "consider" an employee’s length of service time when making after-hours coverage assignments. Its proposal would allow management to ensure, first and foremost, that the needs of the agency are met in making the assignments. In this regard, certain employees have developed specialties with respect to the means of transportation used to import goods, as well as the international companies importing products, that make them more suitable for specific after-hours work assignments. While any number of employees technically may be qualified to perform the assignments, selecting employees for assignments solely on the basis of service time, as the Union proposes, disregards the fact that some have developed areas of expertise that would make them better candidates to perform certain after-hours assignments. Thus, the Employer’s proposal would better serve the needs of the agency.

    b. The Union’s Position

    Essentially, the Union proposes that after-hours work assignments be determined by allowing employees to volunteer for them, with seniority as the "tie-breaker." In support of its position, the Union asserts that the proposal would not interfere with the right to assign work because management would determine which employees are qualified for the assignment. The Union’s approach represents a "traditional" selection system based first on a request for qualified volunteers, followed by the use of seniority as a tie-breaker in the event there are too many or too few volunteers. If there were too many qualified volunteers, the most senior employee would choose the week to provide after-hours coverage. Similarly, if there were not enough volunteers, the least senior qualified employee would be drafted to perform the work. In any event, longevity of service should be given greater weight than under the Employer’s proposal, particularly where management has determined which employees are qualified to perform the work. Moreover, employees would be aware of their after-hours assignments at the start of the 6-month period the pilot is in effect; this would help employees to plan their personal lives better. Finally, providing an objective selection process would help to avoid claims of favoritism, capriciousness and retaliation.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

April 25, 2006
Washington, D.C.