DEPARTMENT OF HOMELAND SECURITY CUSTOMS AND BORDER PROTECTION LOS ANGELES, CALIFORNIA and LOCAL 505, 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 HOMELAND SECURITY
LOS ANGELES, CALIFORNIA
LOCAL 505, national
council, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
Case No. 06 FSIP 51
DECISION AND ORDER
The Department of Homeland Security (DHS), Customs and Border Protection (CBP), Los Angeles, California (Employer), filed a request for assistance with the Federal Service Impasses Panel (Panel) under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120 et seq., to resolve an impasse arising from its decision to terminate a 4-10 compressed work schedule (CWS) for CBP Officers (CBPOs) at the Los Angeles International Airport (LAX) who are represented by Local 505, National Immigration and Naturalization Service Council (NINSC), American Federation of Government Employees (AFGE), AFL-CIO (Union).
After investigation of the request for assistance, the Panel determined that the dispute should be resolved through an informal conference at the Panel’s offices in Washington, D.C., with Panel Member Joseph C. Whitaker. The parties were advised that if no settlement were reached during the informal conference, Member Whitaker would report to the Panel on the status of the dispute, including the parties’ final positions and his recommendations for resolving the impasse. After considering this information, the Panel would take final action in accordance with 5 U.S.C. § 6131 and 5 C.F.R. § 2472.11 of its regulations.
Pursuant to the procedural determination, Member Whitaker conducted an informal conference with the parties on April 21, 2006. While the possibility of a settlement was explored, a settlement was not reached. The Panel has now considered the entire record, including the parties’ pre-conference submissions, and Member Whitaker’s recommendation for resolving the dispute.1/
CBP is the unified border agency within DHS. It combined the inspectional workforces and broad border authorities of the U.S. Customs Service, the U.S. Immigration and Naturalization Service (INS), the Animal and Plant Health Inspection Service (APHIS), and the U.S. Border Patrol. It includes more than 41,000 employees who manage, control and protect the Nation’s borders, at and between the official ports of entry. CBP's priority mission is preventing terrorists and terrorist weapons from entering the United States, while also facilitating the flow of legitimate trade and travel. NINSC represents approximately 7,000 employees nationwide; Local 505 represents 251 CBPOs who work at LAX, GS-7 through -12.2/ The parties’ master collective bargaining agreement (MCBA) expired on June 8, 2004, but its terms and conditions continue by mutual agreement and operation of law.
ISSUE AT IMPASSE
In accordance with section 6131(c)(2)(B) of the Act, the issue in dispute is whether the finding on which the Employer bases its determination to terminate the 4-10 CWS at LAX is supported by evidence that the schedule has caused an adverse agency impact.3/
POSITIONS OF THE PARTIES
1. The Employer’s Position
The 4-10 CWS is causing an adverse impact on CBP operations at LAX by substantially increasing overtime costs, decreasing productivity, and directly interfering with the Employer’s "efforts to develop a cohesive, unified workforce." Termination of the 4-10 CWS is also necessary so that managers can "align the inspectional workforce . . . to meet the passenger processing workload and provide efficient service to passengers entering the United States." To demonstrate the adverse impact of the CWS, the Employer compared the man-hours of the current Passport Control employee schedule for pay period 12 of 2005 with its proposed 8-hour schedule.4/ An 8-hour schedule "increased the daily total of man-hours available and decreased overtime expenditures and idle man-hours." In this regard, the actual cost of overtime at the three passenger terminals that have CBPOs on CWS for pay period 12 was $132,435, and the cost of idle man-hours was $85,456, for a total cost of $217,891. The proposed 8-hour schedule would have resulted in overtime costs of $73,848, and idle man-hour costs of $26,869, for a total cost of $100,716. Therefore, the total savings under an 8-hour schedule would have been $117,175, or 54 percent of the actual cost of overtime and idle man-hours for pay period 12.5/ Overall, the Employer projects that it would have saved $2,269,332 during 2005 if its proposed 5-8 work schedule had been in effect instead of the 4-10 CWS.
The Employer also provided the Union a bi-weekly schedule of the terminals during pay period 12 "to illustrate the current (4-10 CWS and 8-hour shifts schedule inclusive) and proposed (all 8-hour shifts) staffing schedules for all [CBPOs] assigned to Passport Control at LAX." The comparison reveals an average productivity increase of 15 additional CBPOs available to be scheduled to work per day. This is consistent with its cost data, and supports its contention that an 8-hour schedule "reduces the number of idle-man hours currently incurred and reduces the need to fill staffing shortages with overtime." Moreover, the number of staff that managers need to process arriving passengers efficiently in Passport Operations is based on the average number of scheduled passengers/flights, which remains relatively constant regardless of the pay period. Once again, the bar chart it has produced comparing average passenger arrivals, actual staffing levels, and the number of staff that management ideally required for pay period 12 to process passengers, reflects that the use of a 5-8 schedule for all CBPOs is "better able to match available staff resources to workload demands." Finally, in addition to providing the "requisite level" of customer service without incurring excessive overtime expenses and idle-time hours, the termination of the 4-10 CWS would also align the schedules of all CBPOs "while attending mandatory training classes, such as regular and recurring firearms instruction."
2. The Union’s Position
The Panel should find that the Employer has not met its burden under the Act of demonstrating that the 4-10 CWS in effect for CBPOs at LAX has caused an adverse agency impact. Its analysis "contains misleading and incomplete information" and "omits additional facts," creating the "misimpression that the current [CWS] creates adverse agency impact." In this regard, the CBPOs represented by AFGE are deployed in Terminals 3 and 5, as well as TBIT and Terminals 2 and 4, "so the employees are able to accomplish much more work than the Agency indicates." The Employer also calculates its overtime costs and alleged savings based on a GS-11/Step 2 salary rate, when GS-11s are only a "small portion of the total" workforce. Overtime is assigned to the lowest graded workers first in order to save costs, and higher graded workers are assigned overtime only when the lower graded workers reach their maximum allowable earnings. In addition, GS-11 CBPOs are typically assigned to secondary inspection duties and "not the primary inspection lines that are the subject of the Agency’s charts." Furthermore, pay period 12 is in the middle of the peak summer travel season and should not have been used to perform the Employer’s CWS study. The Employer did not provide the type of "exhaustive study for pay periods during which international travel is at lower levels," even though the Union requested this information during bargaining. If the "real costs" were computed, the Employer’s case would "dissipate."
The Panel also should reject the Employer’s claim that the ability of only some of the CBPOs at LAX to participate in a 4-10 CWS undercuts its effort to develop a unified workforce and is damaging to employee morale. The Employer "has created morale problems entirely on its own," and should not blame this on the better employee benefits in the AFGE MCBA. When AFGE wins the election ordered by the FLRA to determine the new bargaining unit’s exclusive representative, it plans to extend alternative work schedules to all of the employees currently represented by other labor organizations. In the meantime, however, by moving to terminate the 4-10 CWS prior to the election, the Employer "is interfering with the fair conduct of that election by eliminating a condition of employment" that the other labor organization on the ballot has been unable to negotiate.
Under section 6131(c)(2) of the Act, the Panel is required to take final action in favor of the agency head’s (or delegatee’s) determination to terminate a CWS if the finding on which the determination is based is supported by evidence that the schedule has caused an "adverse agency impact." As its legislative history makes clear, Panel determinations under the Act are concerned solely with whether an employer has met its statutory burden on the basis of "the totality of the evidence presented."6/
Upon thorough examination of the evidence presented in this case, we conclude that the Employer has demonstrated that the 4-10 CWS is causing an increase in the cost of Passport Operations at LAX. During the informal conference, the Union was successful in raising doubts concerning the savings that would occur in idle time if the 4-10 CWS were terminated, and in pointing out that the Employer’s estimated savings in overtime costs are inflated because they are based on an unrealistically high rate of salary. The Union, however, was unable to undercut the essential methodology the Employer relied on to support its contention that the 4-10 CWS has resulted in significant amounts of overtime, and that a 5-8 schedule would reduce overtime costs while enhancing the level of service provided to the public.7/ Accordingly, we shall order that the 4-10 CWS in Passport Operations at the Los Angeles International Airport be terminated.
Pursuant to the authority vested in it by the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. § 6131(c), the Federal Service Impasses Panel under § 2472.11(b) of its regulations hereby orders the termination of the 4-10 CWS in Passport Operations at the Los Angeles International Airport.
By direction of the Panel.
H. Joseph Schimansky
May 8, 2006
Near the end of the informal conference, the Union requested that the record remain open so it could submit additional information to support its position. Given that both parties were provided with adequate time to prepare for the informal conference and that the Panel is under a 60-day statutory deadline to decide cases involving the termination of CWSs, Member Whitaker denied the Union's request. Nevertheless, on April 25, 2006, the Panel received an unsolicited written request from the Union that it "consider a status quo [sic] and reconsider the parties' evidence at a new hearing." The letter and its attachments contained additional information supporting the Union's position that do not appear to have been served on the Employer. The Panel hereby denies the Union's request. Moreover, the Panel did not consider any of the information contained in the Union's letter or accompanying attachments in rendering its decision in this case.
The dispute concerns 165 CBPOs in Passport Control who currently participate in the 4-10 CWS stationed at the Tom Bradley International Terminal (TBIT), Terminal 2, and Terminal 4. The existing unit was certified when employees worked for INS. The Federal Labor Relations Authority (FLRA) has scheduled an election for eligible CBP employees, beginning in May 2006, to determine whether AFGE or the National Treasury Employees Union will be their exclusive representative.
5 U.S.C. § 6131(b) defines adverse agency impact as:
(1) a reduction in the productivity of the agency;
(2) a diminished level of the services furnished to the public by the agency; or
(3) an increase in the cost of operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed work schedule).
The burden of demonstrating that the CWS has caused an adverse agency impact falls on the employer under the Act. See 128 CONG. REC. H3999 (daily ed. July 12, 1982) (statement of Rep. Ferraro); and 128 CONG. REC. S7641 (daily ed. June 30, 1982) (statement of Sen. Stevens).
According to the Employer, pay period 12 was selected because "it best represents a typical schedule and contained no holidays." In addition, the average daily passenger count for that pay period was 22,475, which compares favorably with the average daily passenger count for 2005, 22,087.
During negotiations with the Union, the Employer also provided comparisons for a number of additional pay periods in 2005. For example, total savings in PP 23 and PP 24 would have been $62,975 and $64,555, respectively, or 33 percent less than the actual costs incurred for overtime and idle man-hours for each of those pay periods had an 8-hour schedule been in effect.
See the Senate report, which states:
This burden is not to be construed to require the application of an overly rigorous evidentiary standard since the issues will often involve imprecise matters of productivity and the level of service to the public. It is expected the Panel will hear both sides of the issue and make its determination on the totality of the evidence presented. S. REP. NO. 97-365, 97th Cong., 2d Sess. at 15-16 (1982).
For example, although the Union argued that pay period 12 was unrepresentative and, therefore, should not have been used as the basis for the Employer's CWS study, it could not refute the Employer's claim that the average daily passenger count for that pay period was similar to the average daily