In the Matter of DEPARTMENT OF THE TREASURY UNITED STATES CUSTOMS SERVICE CANINE ENFORCEMENT TRAINING CENTER FRONT ROYAL, VIRGINIA
and NATIONAL TREASURY EMPLOYEES UNION, NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 128	Case No. 94 FSIP 38

ARBITRATOR'S OPINION AND DECISION

BACKGROUND

    The National Treasury Employees Union (NTEU or Union), on behalf of Chapter 128, filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse involving § 7106 (b) (1) of the Federal Service Labor-Management Relations Statute (Statute) and, to the extent of its application, Executive Order 12871, 58 Fed. Reg. 52201 (1993), between it and the Canine Enforcement Training Center (CETC or Employer). Accordingly, on March 2, 1994, at 9 a.m., representatives from NTEU and the U.S. Customs Service (Customs) met before the undersigned in Washington, D.C. At the outset, the parties engaged in mediation efforts to resolve the issues at impasse. Mediation attempts were not successful. Thereafter, in an afternoon session, the proceeding was converted to a formal arbitration hearing. Each side called witnesses and submitted exhibits with the opportunity for cross examination and objections. At the close of the hearing, the parties were provided an opportunity to submit briefs and argument to be filed concurrently on May 4, 1994.

1. The Employer's Position

    The Employer maintains that the Union's first proposal is nonnegotiable, as it interferes with the Employer's right, under section 7106(a)(1) of the Statute, to determine its internal security practices. In this regard, its decision to reestablish the evening and night shifts for animal caretakers is designed "to safeguard and protect the dogs in the kennel area," and is part of its plan to secure its personnel and physical property. For this reason, the decision to implement the evening and night shifts is a reserved management right. Since the Union's proposal would "constitute a substantive limitation on that right," it is outside the duty to bargain.⁽¹⁾

    The Employer also argues that the Union's alternative proposal, which would require a minimum of two animal caretakers per 8-hour shift, is nonnegotiable, as it excessively interferes with management's right, under section 7106(a)(2)(B) of the Statute, to assign work.⁽²⁾ In Panama Canal Commission, the FLRA found nonnegotiable a union proposal which provided that certain employees would not be required to work alone.⁽³⁾ The Employer urges the arbitrator to apply that holding to the facts of this case and find the Union's alternative proposal nonnegotiable.

    On the merits, the Employer maintains that since the 1970s Customs has had three shifts per day at the canine training center -- day, evening, and night shifts. Prior to 1980, animal caretakers were assigned to work these shifts. Aside from the day shift, one unarmed animal caretaker was assigned to work the evening shift (4 p.m. to 12 p.m.) and one animal caretaker was assigned to work the night shift (12 p.m. to 8 a.m.). Customs has always strongly believes that there should be a physical presence in the kennel areas on a 24-hour basis to ensure the good health and security of the dogs.

    In 1980, a private guard service was engaged to provide the only physical presence in the kennel area during the evening and night shifts. The primary motivation for this arrangement was not the security of the dogs but the security of narcotics used for training purposes which were stored in the kennel area.

    In May 1993, two circumstances were presented which resulted in a decision to reinstate the three shifts and to staff the evening and night shift with animal caretakers.

    As a result of a change from a 10- to 15- week course, the animal caretaker/trainers no longer required the pre-training component to be a part of the training regimen. This change resulted in the animal caretaker/pre-trainers not having to pre-train the dogs. As a result there was not enough work for the animal caretakers/pre-trainers.

    The foregoing change was coincident with the private guard service's increase in charge from $98,000 to $135,000 per year. Consequently, a decision was made to re-institute three work shifts to save money to increase the quality of care and the level of security of the animals.

    This decision, the Employer contends, is a management decision designed to safeguard and protect the dogs in the kennel area.

    It is the Employer's position that no more that one animal caretaker be assigned per evening and night shift. This is contended to be consistent with past practice which dates back to the 1970s.

    There is no evidence that there are sufficient safety risks to warrant the assignment of two animal caretakers per shift. On the contrary the evidence in the record demonstrates that the Employer has taken many precautions in consideration of the safety interests of the one animal caretaker assigned to the evening and night shift.

    For instance, the kennel buildings are protected at night. The doors are locked. The kennel grounds are videotaped. The administration building and the narcotics storage area on the compound have an intrusion detection system which is remoted to the sheriff's office which, in turn, notifies the night duty officer. The kennel buildings have a fire detection system.

    In addition, the animal caretaker assigned to the evening and night shifts wears a personal duress monitor while on duty. If the employee has a medical emergency, he/she activates the emergency duress alarm and calls the duty officer. The animal caretaker is also issued a hand-held portable two-way radio to communicate directly with a radio base station.

    The facility is located in a rural low-crime area and a review of the security logs over the last 4 years does not list any serious incident involving an animal caretaker or animal caretaker/trainer.

    Moreover, since the re-institution of evening and night shifts on October 1, 1993, there have been only three minor incidences involving animal caretakers assigned to work these shifts.

    There is no evidence that demonstrates that work on the evening and night shifts is fraught with danger and that having two animal caretakers assigned per shift would make the work environment any safer than it already is.

    Finally, it is contended that if the Employer is required to assign two animal caretakers to the evening and night shifts, it may have to conduct a reduction in force (RIF) because it would be cheaper to go back to the private guard service and, a RIF would occur because a renewal of a contract with the guard service would result in the Employer's having to work the evening and night shifts. Thus, there would be eight animal caretaker/trainers but with only enough work for five. In this situation, it is likely that several animal caretaker/trainers would lose their jobs in a RIF.

    Furthermore, assigning two employees to the evening and night shifts is contrary to the "good government" standard set forth in the Report of Recommendations to the President of the National Partnership Council.

2. The Union's Position

    In response to the Employer's allegations that both of its proposals are nonnegotiable, the Union maintains that because the proposals involve subjects which are set forth in section 7106(b)(1) of the Statute, and those subjects are now mandatory subjects of bargaining in accordance with section 2 of Executive Order 12871, its proposals are fully negotiable. More specifically, the Union contends that Executive Order 12871 requires employers to negotiate over "the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty . . . ." The Employer's plan to change the animal caretakers' tours of duty from the day shift to the evening and night shifts would require a change in the number of employees assigned to all three tours of duty; as such, the subject is within the scope of section 7106(b)(1).⁽⁴⁾ Therefore, in accordance with section 2 of Executive Order 12871, the Union's first proposal, which, in essence, provides for zero employees on the evening and night shifts, is fully negotiable. Likewise, its alternative proposal, which would require a minimum of two animal caretakers per 8-hour shift, is also fully negotiable.

    On the merits, the Union contends that in the congeries a finding should be made that no night shifts are necessary. NTEU established its position by responding specifically to each of the reasons given at the hearing by the Employer for instituting the night shift, namely: (1) fear of being sued by animal rights activists; (2) so that the dogs could be medicated at night; (3) in case of an emergency involving the dogs, a human presence would be there; (4) because the guard service was too expensive; (5) because security interests require a human presence on the night shifts; and (6) because other agencies do it.

    The Union's response was as follows: Fear of being sued by animal rights activists is not a valid reason for implementation of the night shifts, for it is grounded neither in fact nor past practice. CETC has never been sued for lack of care given to its animals. For the past 13 years, no animal caretakers worked the night shifts. Furthermore, the private security guards had no contact with the dogs during night shifts. Not one law suit was filed. Nor did any animal rights activists voice a concern about the absence of caretakers on the night shifts. There is no need for an animal caretaker to work the night shifts in order to alleviate this phantom fear of being sued by animal rights activists because there has never been, nor is there now, a threat of a law suit.

    CETC's argument that the animal caretakers are required to work the night shifts in order to medicate the dogs is not cogent. For the past 13 years, the dogs have not been medicated during the night shift hours. Rather, they were medicated twice per day during the day shift hours. Not a single dog suffered from this practice. Furthermore, veterinarians have approved medicating the dogs twice a day, rather than three time a day.

    The argument that caretakers are required to work night shifts in case of an emergency is without merit. In the 13 years in which no animal caretakers worked the night shifts, not a single emergency incident involving the dogs arose. Moreover, even if a dog-related emergency should arise during the night shift hours, the night shift animal caretaker efforts to rescue the dog would be extremely limited. First, these animal caretakers have no training in handling emergency situations that may arise during the night hours. Second, according to the night shift position description, the night shift animal caretakers are not allowed to leave the premises to go for help. The most that they would be able to do in case of an emergency is call the on-call duty officer who lives over 30 minutes away. Because this would not likely effectuate a rescue in an emergency situation, there is no need for the animal caretakers to work the night shifts.

    The argument that the security guard service became too costly is inapposite. Cancellation of the guard service should have no impact on a decision to implement animal caretaker night shifts because the security guards allegedly performed different duties from those the animal caretakers perform. If the security guard service contract became prohibitively expensive and the security guard service was no longer needed, one would think that the remedy would be simply to terminate the security guard service. Oddly enough, however, CETC terminated the security guard service and added the night shifts. It did this despite the fact that Internal Affairs determined that security interests do not require personnel on the night shift because of improved security systems.

    It is not tenable that the night shifts were instituted for the purpose of caring for the dogs when such decision was coincident with the termination of the security guard service. If the animal caretakers are functioning as replacements for the expensive security guards, then, these employees should be reclassified as security guards or have their position descriptions and pay changed accordingly.

    In the alternative, the Union offered a second proposal urging that if a night shift is found to be necessary or that the Employer's proposal is nonnegotiable that, in the interests of health and safety, two animal caretakers be required for the night shift. Such a remedy would not cost CETC more than the amount of night differential pay for the additional employee on the two night shifts. CETC would still save a significant amount of money in comparison to the cost of the private security guard contract. Moreover, implementation of this proposal would partly satisfy the animal caretakers' needs as it would alleviate some of their legitimate fear of working the night shifts alone.

CONCLUSIONS

    Turning first to the jurisdictional issues raised by the Employer,⁽⁵⁾ I am guided by the FLRA's decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell) holding that an interest arbitrator may apply existing case law to resolve duty-to-bargain questions which arise during impasse proceedings.

    In examining the duty-to-bargain question raised by the Employer with respect to the Union's first proposal, I find it unnecessary to address the parties' jurisdictional arguments. That is because I am not persuaded that on its merits the proposal would provide a suitable resolution to the impasse, and, therefore, shall order that it be withdrawn. Concerning the nonnegotiability allegations which have been raised regarding the Union's alternative proposal, after reviewing the case law cited by the parties, as well as a recent decision by the United States Court of Appeals for the District of Columbia Circuit issued during the pendency of this case,⁽⁶⁾ I conclude that I am unable to resolve the duty-to-bargain question under Carswell because the state of the law is currently unsettled.⁽⁷⁾ In this connection, as a Panel Member I am bound by FLRA precedent unless the FLRA reverses itself, or is reversed by the U.S. Supreme Court. The FLRA appears to have taken the position that where a proposal falls under both subsections (a) and (b)(1) of section 7106, subsection (a) controls;⁽⁸⁾ the D.C. Circuit, however, has reached a different conclusion.⁽⁹⁾ Although I am convinced for the reasons set forth below that the Union's proposal requiring a minimum of two animal caretakers per 8-hour shift should be adopted, given the unsettled state of the law in this area,⁽¹⁰⁾ I am constrained to defer to the FLRA for resolution of the duty-to-bargain question. Accordingly, I shall order adoption of the Union's alternative proposal only on the condition that the FLRA finds that it is within the scope of section 7106(b)(1) of the Statute,⁽¹¹⁾ or otherwise negotiable.

    As to the merits of the parties' impasse, I am persuaded by the evidence in the record that the Union's alternative proposal would provide the best resolution to the dispute. It appears to me that the Employer's position on the staffing of the evening and night shifts is more forensic that factual. It is not tenable to conclude that a reassignment of the shifts using the existing staff, albeit a shift differential might be involved, would be more costly that renewing private guard service at a level that admittedly became prohibitive. Moreover, the three incidents of irregularity described by the Employer as trivial seem to me to be signal enough that the conditions are such that the human security is a reality that must responsibly be considered.

DECISION

1. The Union shall withdraw its first proposal.

2. The Union's alternative proposal shall be adopted by the parties if it is found by the FLRA to be within the scope of section 7106(b)(1) of the Statute or otherwise negotiable. If the proposal is found by the FLRA to be nonnegotiable, the Union shall withdraw the alternative proposal.

 

Charles A. Kothe

Arbitrator

June 3, 1994

Tulsa, Oklahoma

 

1.In support of this position, the Employer relies on the Federal Labor Relations Authority's (FLRA) holding in American Federation of Government Employees, Council of Prison Locals, Local 919 and U.S. Department of Justice, Federal Bureau of Prisons, Leavenworth, Kansas, 42 FLRA 1295 (1991) (Provision 2). In that case, which involved a contract provision requiring the employer (a correctional institution) to take necessary precautions to prevent physical harm toward employees or their families, the FLRA stated: 

[A]n agency's right to determine its internal security practices includes the right to determine the policies and take appropriate actions to secure or safeguard its personnel, property, and operations. Proposals that establish substantive criteria governing the exercise of a management right directly interfere with that right. It is not necessary that a proposal dictate the specific action that an agency must take in order for that proposal to constitute a substantive limitation on the exercise of a management right. A general criterion that would restrict the range of an agency's discretion pursuant to a management right would similarly constitute a substantive limitation on that right. (Citations omitted.)

2.The Employer cites District No. 1, Marine Engineers Beneficial Association, (AFL-CIO), Panama Canal Area and Panama Canal Commission, 49 FLRA 461 (1994)(Proposal 1)(Member Talkin Dissenting in Part)(Panama Canal Commission).

3.The union's proposal in Panama Canal Commission was as follows:

Except in an emergency, no bargaining-unit member/employee will be required to stand watch alone, in the engine room, while the vessel is underway, in order to ensure the safety of the unit employee. 

In its analysis of the parties' positions, the FLRA first determined that the proposal imposed a substantive condition on management's right to assign work, and, therefore, directly interfered with the exercise of that right. The FLRA then considered whether the proposal was, nevertheless, negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. After assuming for purposes of its decision that the proposal was an arrangement, the FLRA found that because the proposal would "impose substantial constraints on management's decisions concerning the assignment, timing, and completion of work," its benefit to employees was outweighed by the burden on the agency's right to assign work. Accordingly, the FLRA concluded that the proposal was nonnegotiable because it excessively interfered with the exercise of management's right to assign work. 

In Footnote 3 of its decision, the FLRA acknowledged that during the pendency of the case, Executive Order 12871 was issued, requiring management to negotiate over subjects set forth in section 7106(b)(1) of the Statute. Although the employer maintained that the union's proposal should be found nonnegotiable under that section of the Statute as well, the FLRA noted: 

In view of our decision that Proposal 1 excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute, it is unnecessary to address the Agency's contentions regarding its rights under section 7106(b)(1) . . . . 49 FLRA at 464-65.

4.The Union relies on the FLRA's Decision and Order in Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 33 FLRA 532 (1988), aff'd on other grounds sub nom. National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990). In that case, the FLRA found that "a change in employees' starting and quitting times is a change in their tours of duty." The FLRA went on to conclude: 

Changes in employees' tours of duty affect the 'numbers, types, and grades of employees . . . assigned to . . . [a] tour of duty' within the meaning of section 7106(b)(1) of the Statute. For example, when an agency changes 10 employees' tours of duty by moving the employees from a day shift to a night shift, that change affects the numbers of employees assigned to both tours of duty -- it decreases by 10 the number of employees assigned to the day tour of duty and increases by 10 the number of employees assigned to the night tour of duty. Therefore, an agency's decision to make these types of changes is negotiable only at its election under section 7106(b)(1) of the Statute. 33 FLRA at 542-43. 

The Union notes, however, that in a subsequent Decision and Order involving the negotiability of a union proposal related to changes in employees' tours of duty, the FLRA found that in addition to the proposal being negotiable only at the agency's election under section 7106(b)(1), the proposal was also nonnegotiable because it interfered with the agency's right, under section 7106(a)(2)(B) of the Statute, to assign work. National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392 (1990)(National Weather Service).

5.It should be noted that these allegations were raised by the Employer for the first time during the mediation-arbitration proceeding on March 2, 1994.

6.Association of Civilian Technicians, Montana Air Chapter No. 29 v. Federal Labor Relations Authority, No. 92-1379 (D.C. Cir. May 6, 1994)(Montana Air).

7.In National Treasury Employees Union and Federal Deposit Insurance Corporation, Chicago, Illinois, and National Treasury Employees Union and Federal Deposit Insurance Corporation, 32 FLRA 1131, 1137 (1988), the FLRA stated that "consideration of duty-to-bargain questions by third parties like the Panel and interest arbitrators is appropriate only where the duty-to-bargain questions have been resolved by precedent and the answers to those questions are well settled."

8.In National Weather Service, note 3 supra, as well as in a number of other cases, the FLRA has held that even if a proposal is found to be within the scope of subsection 7106(b)(1), a finding of nonnegotiability under subsection 7106(a) supersedes the (b)(1) finding. Conversely, in cases such as Panama Canal Commission, note 2 supra, the FLRA has held that once a proposal is found nonnegotiable under subsection 7106(a), a determination as to whether or not the proposal is within the scope of subsection 7106(b)(1) is unnecessary.

9.In Montana Air, the court rejected the FLRA's position on the relationship between subsections 7106(a) and (b)(1) of the Statute and concluded: 

[The] relationship between subsections (a) and (b) of § 7106 could not have been expressed more clearly in the language of the [Statute]. The nonnegotiability of management rights enumerated in subsection (a) is expressly '[s]ubject to subsection (b),' and subsection (b) concomitantly provides that '[n]othing in this section shall preclude any agency and any labor organization from negotiating' matters enumerated in subsection (b). 5 U.S.C. § 7106(a) & (b). In that sense, we have already decided that § 7106(b) is indisputably an exception to § 7106(a). Montana Air, slip op. at 10.

10.Although Panama Canal Commission appears to involve a proposal which is similar to the one at issue here, the analysis in that case appears to directly conflict with the court's reasoning in Montana Air. That is, in Panama Canal Commission, the FLRA determined that a proposal which would require that certain employees not be required to work alone was nonnegotiable, as it conflicted with the agency's right, under section 7106(a)(2)(B) of the Statute, to assign work. However, even though the FLRA did not address the argument, the proposal at issue in Panama Canal Commission also appears to involve a matter that is within the scope of section 7106(b)(1). Since the proposal in this case is also one that appears to fall under both sections 7106(a) and (b)(1), it is one that may be found to be negotiable at the Employer's election should the reasoning of Montana Air be adopted by the FLRA.

11.I note in this regard that the Employer has never alleged, either during the initial investigation of the case by the Panel's Staff, or while the case has been within my jurisdiction, that the proposal is negotiable only at its election under section (b)(1), and that it elects not to negotiate.