United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE CHICAGO DISTRICT CHICAGO, ILLINOIS
and LOCAL 2718, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 93 FSIP 38

 

DECISION AND ORDER

    Local 2718, American Federation of Government Employees, AFL-CIO (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 Justice, Immigration and Naturalization Service, Chicago District, Chicago, Illinois (Employer).

    After investigation of the request for assistance, the Panel directed the parties to participate in an informal conference with Staff Associate Gladys M. Hernandez for the purpose of resolving the dispute over a procedure for overtime assignment of inspection duties at O'Hare International Airport (O'Hare). The parties were advised that if no settlement were reached, Ms. Hernandez would report to the Panel on the status of the dispute, including the parties' final offers, and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Ms. Hernandez met with the parties on March 15, 1993, in Chicago, Illinois, but the parties were unable to reach a settlement. She has reported to the Panel based on the record developed by the parties, and it has now considered the entire record.

BACKGROUND

    The Employer administers and enforces the immigration and naturalization laws of the United States. The Union represents approximately 251 General Schedule employees who are part of a nationwide consolidated unit of approximately 9,400. Employees work as Immigration Inspectors (II) and Examiners (IE), Deportation Officers (DO), and Special Agents, as well as secretaries and inspection aides. The parties are covered by a national collective-bargaining agreement between the Immigration and Naturalization Service (INS) and the National Immigration and Naturalization Service Council, AFGE, AFL-CIO (NINSC), which is due to expire in July 1993.

    Currently, there is one list for overtime assignments at O'Hare. Employees' positions on the list, whether they are IIs, IEs or DOs, change from week to week, with those having the least amount of overtime earnings (including overtime earnings other than for inspections)⁽¹⁾ at the top of the list. The dispute arose during negotiations over the Employer's proposal to remove DOs from the list and bump IEs to a secondary preference list to be created, thereby leaving only IIs on the primary preference list for O'Hare overtime assignments. Approximately 77 employees will be affected by the outcome of the dispute.

ISSUE AT IMPASSE

    The parties disagree over when the Employer's proposed changes to the O'Hare overtime assignment procedure shall be fully implemented.

POSITIONS OF THE PARTIES

1. The Employer's Position

    The Employer proposes that: (1) DOs be removed from the overtime list on March 31, 1993; and (2) IEs remain on the primary preference list until September 30, 1994, and thereafter placed on a secondary preference list to be accessed only after all IIs on the primary list have been offered an overtime assignment. Generally, its proposal is consistent with Administrative Manual 2978, which provides that assignment of airport inspection duties should be restricted to IIs, unless otherwise determined by the District Director. With the expected hiring of approximately 20 new IIs, a change in practice now has become possible without detrimental effect on the Employer's mission at O'Hare, and at a savings in airport inspection overtime costs. Moreover, IIs are more efficient at inspecting passengers because that is their primary duty. The new procedure is necessary because, since the issuance of the General Accounting Office's and, most recently, the Department of Justice's reports on INS overtime, INS has been under pressure from Congress to reduce inspection overtime costs.⁽²⁾

    It is appropriate to remove DOs from the overtime assignment list immediately since airport inspection duty is no longer included in their position descriptions. The economic impact of such action on them would be "negligible" because, since 1991, their salaries have been otherwise augmented through the upgrading of their positions (they are all now GS-12), their receipt of 4-percent locality pay and 4-percent law enforcement pay, and, most recently, their eligibility for AUO (at minimum, 10 percent, and at most, 25 percent of pay, which is what they are currently earning).⁽³⁾ Their immediate removal also would substantially reduce airport inspection overtime costs to the Employer because, as the higher graded and paid employees, DOs earn more for the same overtime assignment than IIs.⁽⁴⁾ If DOs are allowed to continue to work inspection overtime for an additional year, as the Union proposes, inspection overtime funds would be depleted in the fourth quarter of FY 1993, and most probably in FY 1994, as they were in FY 1992. Then, in order to accomplish its 24-hour mission at O'Hare, it would have to institute shifts, which in FY 1992 led to diminished service to the traveling public and complaints from the airline carriers which pay for the Employer's services through a user fee ($5 per passenger).⁽⁵⁾ Also, allowing them to "double dip," that is, continue to work inspection overtime now that they are certified-eligible for AUO, may result in their making more money for this FY than they would have otherwise, further raising, rather than reducing, the cost of overtime.

    As for IEs, they should be removed to a secondary preference list because airport inspections are not among their primary duties, and their services would probably be required in "emergency situations" only. It is, however, proposing to keep them on the primary list until the end of FY 1994 to give them an opportunity to adjust their personal finances because, unlike DOs, their loss in inspection overtime earning will not be made up through other pay adjustments.

2. The Union's Position

    The Union proposes the following:

Deportation Officers currently on the primary overtime wheel shall remain thereon for a period of twelve (12) months. At the end of this period they will be removed from inspection overtime completely. All Immigration Examiners currently on the primary overtime wheel will remain thereon for a period of sixty (60) months or five (5) years. At the end of this period, they will be placed on a secondary overtime wheel. As of the date of this agreement, all Deportation Officers entering on duty in the Chicago District will not be on any Inspection Overtime wheel. As of this date, all Immigration Examiners entering on duty in the Chicago District will be placed on a secondary wheel.

    A 1-year financial adjustment period for those DOs who stand to lose anywhere from $5,000 to $7,000 is "reasonable and adequate." The Employer's inspection overtime costs nonetheless will be reduced because DOs will be working more AUO and less inspection overtime during that period. Some IEs, by comparison, may lose $15,000 to $17,000 or 30 percent of their annual earnings because they do not work other overtime, and generally are not permitted to take outside employment; they, therefore, should be given a longer adjustment period. In the current economic climate, 5 years is a reasonable amount of time to permit IEs, for example, to pay off current debts to prevent severe financial hardship when their pay is substantially reduced, or find other employment which would allow them to continue to meet financial obligations entered into during the last 10 or more years they were allowed to share in lucrative airport inspection overtime. While a shorter period of time would be financially devastating to some IEs, particularly those who are single parents and the sole source of income for their families, the cost to the Employer of retaining them on the primary preference list through 5 years would be less than expected. In this regard, not only are their numbers likely to decrease through attrition but, with the hiring of new IIs, they will be working less overtime. In fact, the real cost to the Employer from removing IEs from the primary preference list will be in turnover; it is likely to experience difficulty in finding IIs willing to forego lucrative overtime earnings to take an IE position, the "worst job" in the INS, or IEs willing to stay in the position when they can make more money working overtime as an II, even at a lower grade.

CONCLUSIONS

    After examining the evidence and arguments presented, we conclude that the parties should adopt the Employer's proposal, modified to specify that DOs are to be dropped from the overtime assignment list 2 weeks from the date of receipt of this Decision and Order. In determining the amount of time to give DOs and IEs to adjust their finances before the Employer's new overtime assignment procedure takes full effect, we carefully weighed employees' concerns over the adverse effects the new procedure would have on their ability to meet financial obligations, against the Employer's need to control overtime costs during a time of budgetary cutbacks in the Government, and pressure from Congress to prudently administer overtime without interrupting the effective and efficient handling of airport inspection operations. In our view, the amount of time proposed by the Employer provides a more reasonable and equitable balance of the parties' interests.

    With regard to DOs, we are not convinced that any adjustment period is necessary given the recent augmentation of their incomes as detailed in the record. Moreover, if their participation in inspection overtime assignments is not terminated promptly, a reduction in their overtime pay could materialize anyway because the Employer is likely to run out of inspection overtime funds. This also would have a detrimental effect in the service provided to the traveling public. As for IIs, who will suffer a relatively greater financial loss, we are persuaded that 18 months is a fair amount of time in which to find other employment at present earnings or make other adjustments to mitigate the adverse effects of the upcoming pay reductions. Further, any difficulty the Employer may have staffing IE positions is merely speculative and can be addressed by the parties at a later point should it become a problem. Finally, we believe that our modification of the Employer's proposal, whereby DOs shall be removed from the overtime assignment list 2 weeks from the date the parties receive our Decision and Order, is consistent with the Employer's intent.⁽⁶⁾

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:

The parties shall adopt the Employer's proposal, modified to provide for DOs to be removed from the overtime assignment list 2 weeks from the date of receipt of this Decision and Order.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

April 28, 1993

Washington, D.C.

 

1.There are three types of overtime: (1) "1931 Act" or inspection overtime; (2) "1945 Act" or regular (time-and-a-half) overtime, which must be authorized in advance; and (3) administratively uncontrollable overtime (AUO), which applies to law enforcement-related activities only. We note that the most employees may earn in overtime is $25,000 annually.

2.It is uncontested that the net savings to the Employer had IIs worked the overtime jobs taken by DOs and IEs would have been $64,080 and $69,648 in Fiscal Years (FY) 1991 and 1992, respectively.

3.AUO is discussed more fully in the Department of Justice, INS memorandum on overtime policy, dated October 16, 1992, and in the Memorandum of Understanding between INS and NINSC, AFGE, dated November 17, 1992.

4.All DOs in the Chicago District are GS-12s and, in addition, receive pay differentials totaling 8 percent which is included in setting their overtime hourly rate; the journeyman grade for IEs is GS-11. In comparison, the top pay grade for IIs is GS-9.

5.8 U.S.C. §§ 1356(d)-(f)(1986). The Employer explains that all INS inspections operations are funded through an Immigration User Fee Account (§ 1356(h)). The amount INS Headquarters appropriates to district offices is determined by the number of positions and workload they have. In FY 1993, the Employer received the same amount of money for such operations as it did in FY 1992 even though its expenditures in salaries and benefits increased by 3.7 percent. Recent requests to INS Headquarters for additional funds to pay for inspection overtime were denied.

6.March 31, 1993, was 2 weeks from the date of the informal conference, which is when the Employer advanced its final proposal.