In United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

DECISION AND ORDER

    After investigating the request for assistance, the Panel determined that the dispute, which arises from bargaining over the Employer’s proposal to require Customs Inspectors to wear name plates with legal last names, should be resolved through an informal conference between a Panel representative and the parties. The parties were advised that if no settlement was reached, the Panel’s representative would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the issues. After considering the report, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    In accordance with the Panel’s procedural determination, Panel Member Mary E. Jacksteit met with the parties on January 19 and 20, 2000, at the Panel’s offices in Washington, D.C. Although the parties settled a number of issues, seven remain unresolved. Accordingly, the parties submitted their final offers and supplemental statements. The Panel has now considered the entire record, including Ms. Jacksteit’s report and recommendations.

    The Employer’s proposal is:

All bargaining unit employees who are currently wearing the uniform and after January 1, 2001, any bargaining unit employee who wears a class 1, 2, 3, or 4 uniform and any other uniformed employee who may have contact with the public will be required to wear a name plate on their uniform, with their legal last name, as of July 1, 2000.

Instituting a requirement that some 900 Customs Inspectors, Canine Enforcement Officers, and other uniformed Customs employees wear name plates displaying their legal last names is consistent with recent policy changes directed toward creating and projecting a highly professional law enforcement image that evokes respect and confidence in the public and in Congress. These include the redesign of the uniform, new weapons, marked cars, re-institution of shotguns, a tougher disciplinary table of offenses for misconduct, and a decision that, for the first time beginning March 1, 2000, Customs Inspectors would be authorized to carry service weapons 24 hours a day. The wearing of name plates also goes along with new measures to improve relations with the public that include informational pamphlets and comment cards at inspection sites, customer surveys, and revised search procedures. Over the last 5 years, the percentage of complaints that cite "rude and unprofessional conduct" by Inspectors has been on the rise, increasing from 15 percent in 1994 to 28 percent in 1999. While it is true that, overall, the number of complaints by the public is small, and satisfaction apparently high, this trend must be checked.

    The use of name plates is the overwhelming practice of other law enforcement and analogous agencies.⁽³⁾ The measure is justified because, at the borders, Customs Inspectors have authority by law to conduct "intrusive personal searches," detain persons, and seize property without a magistrate’s reviewing whether probable cause exists to issue a warrant; at the borders, Customs Inspectors take such actions based on "mere suspicion." In recent times, Customs has come under Congressional scrutiny because of allegations of racial profiling, inflamed by particularly egregious cases of minority women, one pregnant, taken into custody, held incommunicado, and subjected to invasive physical searches and examinations.

    The continued use of a badge number or, in the alternative, a pseudonym, as the Union proposes, does not address the problem. In this regard, "the whole purpose in wearing a legal last name is so the officer is accountable to the public and acts professionally since he/she knows his/her name is available to the public." Although the Panel was persuaded in one case that registered pseudonyms were a reasonable option for certain Internal Revenue Service employees with unique last names, that decision is not applicable to Customs.⁽⁴⁾ "In contrast to . . . IRS employees, Customs officers have substantially greater authority, which demands greater accountability."

    In border and airport settings, Customs Inspectors are the only Government employees not wearing name plates, except for those of the Agricultural Health Inspection Service (APHIS). In particular, INS Inspectors, wearing name plates, often work side-by-side in land border stations with Customs Inspectors. Frequently, they are "cross-designated," which means they do identical work. In that scenario, INS employees carry out Customs Inspector duties, including looking for drugs and other contraband. In addition, local law enforcement officers often inspect outgoing vehicles. Thus, the Union’s argument of unique dangers faced by Customs Inspectors because of their interference with drug smuggling is contradicted by actual experience in many locations.

    Customs supervisors have worn name plates for 5 to 6 years without incident. Similarly, the results of a survey of the 1,138 Customs supervisors, unchallenged by the Union, uncovered no instances of threats or assaults and no dangerous repercussions from wearing name plates. This is significant given that supervisors are "more likely to be involved in a confrontational situation because of the large numbers of employees they supervise and the fact that problems are sent to the supervisor." As to experience at the INS, there is no evidence that name plates have caused threats and assaults against those employees to any significant degree in the 30 years the practice has been followed.

    The Union’s assertions that Inspectors are regularly exposed to serious threats and assaults and will suffer an increase in such incidents as a result of wearing name plates are not supported by the facts. Four hundred and fifty million people pass through Customs annually and all but a tiny percentage of these are innocent travelers. It is the exception, not the rule, that an Inspector and/or a family member become the object of a threat, and is menaced at home or off-duty. In these situations, Customs responds with protective measures such as change of residence (sometimes temporary), protective personnel, phone taps, and name changes; a person can be moved in 48 hours.

    The Union proposes:

Either that employees be permitted to continue with the practice of only being identified by their badge number, or that employees be permitted to be identified by a pseudonym.

Essentially, name plates are unnecessary because employees are already identified by their badge numbers, ensuring their accountability and allowing Customs to identify a culpable employee. When a member of the public asks, Inspectors must provide their badge numbers.

    Name plates displaying employees’ legal last names will place Customs Inspectors and their families in greater danger from threats and retaliation. The evidence from Inspectors demonstrates that the potential is ever-present for a narco-terrorist, criminal, or otherwise violent-minded individual to take or attempt retaliation against an Inspector who has searched them, detained them, and seized their property. There are 70 instances in the record "where Customs Inspectors and Canine Enforcement Officers have either been threatened or assaulted by passengers who they have processed as part of their normal work duties." That the Nation’s borders are the entry points for narcotics smugglers places Inspectors in contact with people who have no scruples about harming, threatening, or intimidating them and their families. To put Inspectors’ legal names on their uniforms would make this kind of response easier and more likely. Furthermore, the policy change contradicts what employees are told during training and in earlier announcements about the importance of keeping one’s identity a secret. The experience of Customs supervisors who wear name tags is not dispositive since they mainly work in offices, away from the stress of dealing with travelers. When they do come onto the floor, they act as peacemakers, resolving problems.

    With the Internet, the capability now exists for obtaining a large amount of personal information starting only from a name. There is no dispute that Social Security numbers, credit data, home addresses, and other personal information can be obtained by those knowing how. Related fraud, known as "identity theft," which may entail, among other things, the unauthorized use of credit cards and bank accounts, is an increasing risk. Inspectors would be vulnerable to misuse of personal information as retaliation, the more so when their names are broadcast on name plates.

    Customs’ claimed need to increase professionalism is contradicted in its own reports. In this regard, customer surveys conducted by Customs show a high degree of satisfaction with the conduct of Customs Inspectors (84 percent of comment cards are positive). Given the 450 million people with whom employees interact every year, Customs receives very few complaints. While an average of 2,350 complaints were logged annually from 1994 through 1998, under 400 of these addressed Inspector behavior. Customs compiled 293 complaints referencing "employee identification" in the years 1997-1999. Of the 50 that reportedly express specific concern about "absence of identification," only a handful (1 percent) actually complain about badge numbers being used instead of names; most deal with an employee’s refusal to provide identification and other rudeness.

    It is hypocritical and inconsistent for Customs to assert an interest in Inspectors being part of a highly professional law enforcement operation while it is taking the legal position in employee appeals to the MSPB that, under the law, this group of employees does not qualify for law enforcement officer status (referred to as 6(c) status) and the favorable retirement benefits associated with that status. Instead, at MSPB, the Employer refers to Inspectors’ duties as "clerk-like." Finally, the Panel’s reasoning in IRS that a preventive approach is superior to an after-the-fact addressing of threats against employees applies with equal force in this case and compels adoption of the Union’s proposal.

    Having carefully reviewed the evidence and arguments presented, we conclude that the parties should adopt the Employer’s final offer to resolve their dispute over name plates, except for the implementation date which we address in issue 5 below. In reaching this conclusion, we find that the Union has failed to persuade us that the use of name plates displaying employees’ legal last names would increase the risk of threats, attacks, or other actions against uniformed Customs employees and their families. In this regard, the data presented do not reveal any discernable link between the wearing of name plates and attacks on law enforcement personnel in other agencies, or on supervisors within Customs. In most of the incidents described by the Union’s witnesses, employees were not wearing name plates. Rather, these employees were identified and located through other means: telephone ruses, court and chain of custody records, and the tracking of their automobiles. In addition, the record establishes that name plate use is the predominant practice among law enforcement and analogous agencies. Where an actual threat is made, as the Union acknowledges, the Employer responds quickly to take steps to protect employees.

    With regard to concerns the Union raises about threats to privacy and access to personal information, we observe the following. First, even without a name tag, names and other personal information can be obtained easily, as corroborated by a Union witness, for example by tracing automobile license plate numbers and making telephone calls to the workplace under false pretenses. A criminal who is intent on harassment or retaliation, therefore, need not depend on a name plate. Second, the potential for finding and misusing personal information exists for every other law enforcement employee, the overwhelming number of whom wear their names, and for all the thousands of other Federal employees whose names become known to Government customers. In conclusion, the change the Employer proposes, in our view, is a justifiable complement to the extraordinary search and detention powers that Customs Inspectors exercise. We are convinced that such power warrants a greater measure of accountability than afforded through the current practice of numbered badges.

2. "24-Hour Carry" [3f]

    a. The Employer’s Position

    The Employer proposes:

The Agency will provide authorization to carry the authorized firearm on a 24-hour basis ["24-hour carry"] in accordance with the National Agreement, Article 24, Section 8, and the Commissioner’s message issued on January 13, 2000. For any armed bargaining-unit employee not covered by the Commissioner’s authorization, the Agency will provide authorization to carry the authorized firearm during off duty hours in accordance with Article 24, Section 8, of the National Agreement between the parties.

Under the Employer’s proposal, implementation of "24-hour carry" would occur gradually once the initial test phase-in of the policy is complete. All Inspectors would eventually participate, but the authorization would only cover the weapon provided by Customs. While the Union’s proposal ties implementation of the name plate requirement to "24-hour carry" authorization, to avoid unnecessary delay, these two policy changes should be implemented independently. Otherwise, the resulting variations in identification practices across the country would be confusing. Finally, because the parties are involved in complex, ongoing negotiations on firearms policy in which the type of service weapon is an issue, it is inappropriate to address those aspects of the Union’s proposal which refer to weapons other than the authorized firearm.

    b. The Union’s Position

    The Union’s proposal reads:

Customs will provide such nameplate-wearing employees with, at their request, authorization to carry either the Customs issued weapon, or the privately purchased weapon for 24 hours, on or off duty. Nameplates will be phased in at the same ports at the same time as 24-hour carry is phased in.

Given that the requirement to wear a name plate will place employees and their families in greater danger, name plates should be implemented only when "24-hour carry" is effectuated. Regarding the choice of weapon, because the service weapon is large and hard to conceal, many employees prefer to carry a smaller, privately- owned weapon; they should be allowed to do so when on and off duty.

    Having considered the parties’ positions on this issue, we conclude that the Employer’s proposal would provide the better basis of resolving their dispute. In our opinion, uncertainties over the outcome of the parallel, national-level firearms negotiations make it undesirable to authorize the use of privately- purchased weapons before those negotiations, which are expected to cover the subject comprehensively, are complete. We also are persuaded that implementing the name plate change nationwide at one time will enable the Employer to present a more consistent image to the public. For these reasons, the Employer’s proposal shall be adopted.

3. Use of Pseudonyms [3g]

    a. The Employer’s Position

    As a counterproposal to the Union’s alternative of giving employees the right to use pseudonyms on name plates, the Employer proposes the following:

Once the Office of Investigations has determined that the employee has received a credible threat concerning their physical safety and it is requested by the employee, Management may authorize the employee to use a pseudonym in lieu of the name plate in 60-day increments pending the outcome of the threat review.

Employees would be allowed to use pseudonyms for a limited time when an actual threat is documented. To allow pseudonyms as a matter of course, however, would defeat the purpose of the name plate policy altogether by failing to instill a commitment to accountability in employees and, in turn, failing to communicate that commitment to the public.

    b. The Union’s Position

    If a name plate is required, the Union proposes that employees who are threatened or harassed be entitled to use a registered pseudonym. For all of the reasons discussed with respect to name plates, generally, the display of legal names would subject employees to an unwarranted degree of danger; pseudonyms achieve accountability in a safer way.

    After carefully considering the record provided on this issue, we conclude that the parties should adopt compromise wording to cover situations where an employee has actually been threatened or harassed. Accordingly, when management becomes aware than an employee, as a result of the performance of official duties, has been subjected to threats, harassment, or other conduct leading to a reasonable fear on the part of the employee for the safety of the employee and/or his or her family, we shall require the Employer to take certain actions. In this regard, the Employer would promptly discuss the matter with the employee and authorize the use of a pseudonym for a period of not less than 120 days while the incident is reviewed. At the end of 120 days management could extend the authorization in 60-day increments pending the outcome of the review. This compromise was discussed during the informal conference and is part of an agreement between NTEU and INS. By its terms, it requires the Employer to respond to a reported threat by allowing use of a pseudonym, and provides a longer initial period for its use. We believe that this offers employees a greater degree of reassurance that threats will be taken seriously, yet does not undermine the Employer’s basic desire to make name plates with legal last names the norm. We note that in discussions during the informal conference, the Union did not oppose the compromise, but questioned its necessity because the Employer has always responded quickly in exigent circumstances. Nevertheless, we are persuaded it would provide additional assurances for adversely affected employees.

4. State Firearms Licensing [4]

    a. The Employer’s Position

Nothing in the MCBA or Customs policies or regulations should interfere with the right of an employee as a private citizen to carry a privately-owned weapon in an off-duty status in accordance with state or local law.

In addition, Appendix E of the MCBA contains a letter that can be sent to support an employee’s application to carry a weapon while off duty.

    b. The Union’s Position

    The Union proposes that "Customs shall contact local police departments to expedite the firearms licenses and/or concealed carry permits for Customs officers." If employees are to be placed in greater danger, then the Employer should take steps to support increasing their means of protection. An important step in that direction is facilitating employees’ obtaining state licenses to carry concealed weapons.

    Having considered the parties’ arguments on this issue, we conclude that they should adopt a modified version of the Union’s proposal such that, upon request from an officer, Customs shall contact local police departments to expedite the firearms licenses and/or concealed carry permits for Customs officers. The modification, which adds a phrase to the beginning of the Union’s proposal, clarifies that the employee must request such assistance. In our view, it is reasonable for the Employer to expedite employees’ being able to obtain such licenses once it receives a request.

5. Unlisted Telephone Numbers [11]

    a. The Employer’s Position

    The Employer proposes that "employees would not be required to wear nameplates until July 1, 2000, to give them time to remove their names from telephone directories." The 1-year period the Union proposes would excessively delay the improvement to professionalism and accountability it has been attempting to institute for over 10 years.

    b. The Union’s Position

    The Union essentially proposes that the Employer delay implementation of the name plate requirement for 1 year from the date of the Panel’s decision so that employees may remove their names from the telephone directory. The time period the Employer proposes is unrealistic given the varying publishing schedules for telephone directories across the country. The goal should be to maximize the opportunity for affected employees to complete such efforts before name plates must be worn. Inspectors with unusual last names are not only concerned about themselves, but also about their relatives who may be listed in phone directories and could be linked to the employee. Although some Inspectors may already have unlisted numbers, others, and their relatives, may not have taken these precautions. In several instances, relatives living in separate households have received harassing telephone calls.

CONCLUSIONS

    Upon consideration of the evidence and arguments provided on this issue, we conclude that the parties should adopt the Union’s proposal so that employees are given an adequate amount of time to remove their names from telephone directories. In this connection, we agree with the Union that the Employer’s proposal provides an unrealistic time frame. As a result of the outcome on this issue, the Employer’s proposal to require the wearing of name plates (issue 1) shall be implemented 1 year from the date of this decision.

6. Reimbursement of Legal Fees [14]

    a. The Employer’s Position

    Basically, the Employer proposes that the parties abide by wording already in the MCBA at Article 32, Arbitration, Section 9, on the issue of reimbursement of legal fees. Reference to the negotiated arbitration provisions and the remedies afforded there are preferable to creating a special remedy.

    b. The Union’s Position

    In essence, the Union proposes that the Employer reimburse the employee and the Union for legal fees related to actions taken to exonerate the employee from false charges arising from the employee’s wearing a name plate. By virtue of wearing name plates, employees will be exposed to a greater likelihood that criminals and vengeful members of the public will seek to harm them by making false allegations that lead to adverse personnel actions. Employees should be protected against this possibility by assurances of financial restitution of the costs of proving their innocence.

CONCLUSIONS

    After consideration of the evidence and arguments provided by the parties on this issue, we conclude that they should adopt the Employer’s proposal to resolve their dispute. In our view, the contention that employees would find themselves in the situations contemplated by the Union is speculative. Nothing in the record developed by the parties suggests such episodes have occurred in those agencies where name plates are worn. Accordingly, we shall order the adoption of the Employer’s proposal.

7. Liability Insurance Premiums [15]

    a. The Employer’s Position

    The Employer contends that the Panel should decline to retain jurisdiction over the Union’s proposal that it pay for liability insurance premiums because affected employees are not "qualified employees" referred to in the law authorizing such payments.⁽⁵⁾ Therefore, the proposal is not within its duty to bargain. In 1996, Congress passed legislation authorizing Federal employers to pay 50 percent of the cost of liability insurance for "qualified employees" who are defined as "a law enforcement officer" or "a supervisor or management official." Since, as a legal matter, Customs Inspectors do not fit the definition, there is no authority for providing the premium coverage the Union proposes.

    b. The Union’s Position

    The Union proposes that "Customs [] purchase and provide a liability insurance policy to any employee required to wear a nameplate which contains their legal last name." Employees do not have the financial wherewithal to protect themselves and their families against the additional risk that may be created by the policy of wearing name plates. The measure is warranted because Customs officers may be vulnerable to law suits for acts that did not occur within the scope of their employment under 28 U.S.C. § 2679(c), and based on a purported violation of the Constitution or a violation of a statute that authorizes suit against an employee in his or her individual capacity. Furthermore, the Department of Justice has refused to be substituted as the defendant in actions that did not occur within the scope of the officer’s employment. If employees are to be subjected to greater risk, it is reasonable to expect the Employer to provide them with insurance against law suits that may occur as a result of actions they take in their jobs and false claims filed against them by members of the public. The law was amended in 1999 to make the payment mandatory.

    As to the jurisdictional question the Employer raises, by law, for certain employees, employers must pay up to half of the premiums for liability policies. While the law does not specifically identify Customs employees, "[s]uch statutory silence cannot be construed to preclude bargaining over a proposal concerning a matter not addressed in the applicable statutory provision."⁽⁶⁾ When, for example, the law was silent on the payment of transit subsidies, agencies were not deterred from determining to establish transit subsidy programs.

CONCLUSIONS

    Having carefully reviewed the evidence and arguments provided by the parties, we conclude that they should adopt the Employer’s proposal that the Panel decline to retain jurisdiction over this issue. It is unclear whether the Employer has the statutory authority to implement the proposal. Furthermore, neither party cited decisions of the Federal Labor Relations Authority (FLRA) that address a proposal substantively identical to the Union’s. In such circumstances, the Panel is guided by the FLRA’s decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (February 23, 1988), which permits the Panel (and interest arbitrators) to resolve duty-to-bargain issues only if it can apply clear FLRA precedent involving the negotiability of a substantively identical proposal. In this instance, no such precedent has been offered by the Union or otherwise discovered. Therefore, the Panel is constrained to decline to retain jurisdiction over the matter.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to 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:

1. Name Plates [1 and 2]

The parties shall adopt the Employer’s proposal to resolve their dispute, modified as follows:

All bargaining unit employees who are currently wearing the uniform and after January 1, 2001, any bargaining unit employee who wears a class 1, 2, 3, or 4 uniform and any other uniformed employee who may have contact with the public will be required to wear a name plate on their uniform, with their legal last name, as of March 23, 2001.

The parties shall adopt the Employer’s proposal to resolve their dispute.

    The parties shall adopt the following compromise wording:

When management becomes aware than an employee, as a result of the performance of official duties, has been subjected to threats, harassment, or other conduct leading to a reasonable fear on the part of the employee for the safety of the employee and/or his or her family, the Employer shall take action as follows. The Employer will promptly discuss the matter with the employee and shall authorize the use of a pseudonym for a period of not less than 120 days while the incident is reviewed. At the end of 120 days management may extend the authorization in 60 day increments pending the outcome of the review.

4. State Firearms Licensing [4]

    The parties shall adopt the following modified version of the Union’s proposal:

Upon request from an officer, Customs shall contact local police departments to expedite the firearms licenses and/or concealed carry permits for Customs officers.

5. Unlisted Telephone Numbers [11]

    The parties shall adopt the Union’s proposal.

    The parties shall adopt the Employer’s proposal.

    The parties shall adopt the Employer’s proposal that the Panel decline to retain jurisdiction over the Union’s proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

March 23, 2000

Washington, D.C.

1.Letters have been exchanged at the national level about whether to reopen the MCBA in its entirety or to revisit only a selected number of subjects. Notwithstanding these developments, the existing agreement contains wording that makes it a “living document”; either party, therefore, is permitted to open negotiations on any matter contained in the agreement at any time.

2.This proposal number does not appear in the parties’ proposals and was created by the Panel to facilitate its explanation of the issue involved.

3.All of the following governmental employees wear name plates: Immigration and Naturalization Service (INS) Inspectors (who have worn name plates for 30 years), Border Patrol uniformed agents, FBI and Secret Service agents, Fish and Wildlife and National Park Service uniformed employees, and at least 90 percent of state and local police and sheriffs.

4.See Department of the Treasury, Internal Revenue Service, Washington, D.C. and National Treasury Employees Union, Case No. 91 FSIP 229 (March 10, 1992)(IRS), Panel Release No. 326.

5.5 U.S.C. Part III, Subpart D, Chapter 59, Subchapter IV – Miscellaneous Allowances (pocket part), as amended in P.L. 106-58, § 642(a).

6.National Federation of Federal Employees, Local 1669 and U.S. Department of Defense, Arkansas Air National Guard, 188th Fighter Wing, Fort Smith Arkansas, 55 FLRA 63 (January 8, 1999).