FACT V. FICTION SETTING THE RECORD STRAIGHT ON “SILLY UNION WORK RULES”
Opponents of the Lieberman homeland security bill have been citing “silly union work rules” that will impede the ability of the new Department of Homeland Security to protect Americans from terrorist attack. None of their stories is factually accurate. The law now forbids any “union work rule” that impairs the authority of a federal manager to assign work, to direct employees, or to take necessary action in an emergency.
In an emergency, a federal manager can impose any changes in assignments immediately, without dealing with the unions at all, and the unions may bargain over ways to lessen the impact on employees only after-the-fact. Below are several tall tales opponents of the bill have cited, followed by what really happened.
FICTION: Collective bargaining will prevent managers from moving homeland security workers to where they are most needed at any given time in order to protect national security in an emergency. FACT: Under federal statute (United States Code. Section 7106(a)(2)(D) of Title 5), collective bargaining cannot affect the authority of managers “to take whatever actions may be necessary to carry out the agency mission during emergencies.”
FICTION: The National Treasury Employees Union objected when Customs inspectors were told to wear radiation detectors – to help thwart the importation of nuclear or radiological materials – saying that wearing detectors should be voluntary. Opponents of the bill said the NTEU asserted collective bargaining rights, which would take a year to resolve. (President Bush, political fund raiser, 9/26/02) FACT: The NTEU and its members never refused to implement this policy, nor would it have been legal to do so. NTEU has raised concerns about whether the program would work because of inadequate training, the availability of detectors, and more effective, alternate technology. NTEU originally proposed that the policy be implemented on a voluntary basis but said, after receiving training information from Customs, the union would have no problem with making the program mandatory. The union also alerted the administration that radiation detection devices were not provided to INS inspectors, even if they are the only inspectors at a port of entry, constituting a serious lapse in homeland security efforts. Thus, the union is serving not only to look out for employees’ interests, but also as a watchdog looking out for the public interest. Finally, existing law required Customs Service inspectors to wear the detectors immediately, which they did. The union cannot require bargaining either before or afterwards, if the Customs Service does not want to engage. The union originally asked to bargain; the administration refused; and that was the end of it. In declining to bargain, the Customs Service asserted its rights under collective bargaining law to “determine the . . . internal security practices of the agency.” Any agency manager has that right under section 7106(a)(1) of title 5, United States Code. So this example demonstrates that the administration has ample authority – under existing law – to impose security policies unilaterally.
FICTION: President Bush is using a Customs Service proposal to develop a centralized, nationwide database of every employee’s home address and telephone number to claim that unions work against national security. Bush said “union leaders call that an invasion of privacy…that’s not right…” (President Bush, political fund raiser, 9/26/02) FACT: After the terrorist attacks last year, although the President implied otherwise, the NTEU dropped its privacy objection to the centralized database. Furthermore, the President clearly implied that the union was objecting to any system to provide emergency contact information, when, in fact, the privacy concerns were raised regarding the nationwide database only. Customs employees have already provided emergency contact information to local managers.
FICTION: When the Customs Service tried to implement a Terrorist Alert Warning System, NTEU filed a complaint, saying the warning system violated its union contract, and the Customs Service couldn’t implement the president’s alert system without first entering into extensive negotiations. (Senator Gramm, Senate floor, 9/26/02) FACT: The union is not questioning the warning system or asking that it be rolled back – nor could it, since the law does not allow a union to prevent implementation of such a security directive. The warning system was in place and was followed by union-represented employees since the day it was issued. The union merely requested the administration to provide the union with information about the alert system, which the administration is legally obligated to do, and then provide an opportunity to bargain about how the warning system should affect rank-and-file Customs Service employees.
FICTION: Union attempts to raise concerns about a proposed reconfiguration of the Logan Airport Customs inspection center in the mid-1980s were an effort to block the reconfiguration of a room designed to detect bombs on planes. (Senator Gramm, Senate floor, 9/02) FACT: Customs inspectors were trying to speak up about how the reconfiguration would actually impair their ability to detect contraband, like a bomb in baggage. The inspectors understood how the system worked and were concerned that their ability to do their job would be threatened by the reconfiguration. In fact, the airport went ahead and reconfigured the room long before the union’s objection ever reached the Federal Labor Relations Authority. The FLRA said that before conducting the reconfiguration, the Customs Service should have notified the unions and discussed it with them.
FICTION: The collective bargaining agreement covering the Border Patrol forbids posting agents in a location that lacks amenities like drug stores and cleaning establishments, even in an emergency. (Senator Gramm, Senate floor, 9/02) FACT: The collective bargaining agreement did not, and could not, tell the INS where Border Patrol agents – including members of the Border Patrol Tactical Team, which is specially trained and equipped to address unusual situations – may be posted. Under the law, a collective bargaining agreement cannot affect the authority of management to assign work to employees. Indeed, agency mangers may take whatever actions are necessary to carry out the agency mission during an emergency. So the collective bargaining agreement cannot, and did not, forbid posting agents in areas that lack amenities. In fact, the collective bargaining agreement affirms that the employees in question – members of the Border Patrol Tactical Team – may be deployed “to any location on short notice.” Then, the agreement says, if agents are posted away from public transportation, and only if it is “reasonable,” the INS will provide enough vehicles for the Border Patrol agents to get between work and their lodgings. And only if is reasonable, the INS will provide enough vehicles so the agents can get to restaurants, places of worship, and cleaning establishments.
FICTION: At an unnamed border crossing, Customs agents patrolled certain lanes, and INS agents patrolled other lanes, but each operated under different union work rules controlling how its inspectors could search vehicles. The agents patrolling certain lanes could not search trunks, and this apparently was known to drug smugglers who would watch with binoculars to decide what lane to get into to. (This claim was attributed to former drug czar Barry McCaffrey in 1998.) FACT: Union work rules have nothing to do with whether INS agents or Customs agents can open trunks of cars. No provision in the collective bargaining agreement between the INS and its employee unions prevents management from determining how and when vehicles are searched. No provision in the collective bargaining agreement between the Customs Service and its employee unions prevents management from determining how and when vehicles are searched. If there was – or is – a policy that not all car trunks are searched at the border, that policy had to have been established by management of the agency, for whatever reasons of efficiency or speeding up the lines.
FICTION: Unions are requiring that Customs inspectors being sent to sensitive jobs overseas be chosen solely by seniority instead of on their qualifications. FACT: In fact, when the Customs Service said it would not bargain about who should be sent overseas, the union did not pursue the matter, so union leaders are not “requiring” anything and never proposed anything. Even if the union wanted to, it could not insist on a system based on seniority rather than merit. The law allows managers to assign work based on employee qualifications rather than seniority. Seniority may be used as a factor in making assignments among equally qualified employees, but if the agency management wishes to make assignments based on qualification rather than seniority, the union may not insist otherwise.
FICTION: In 1990, the INS wanted to add an extra shift at the Honolulu International Airport to handle a surge in international flights in the afternoon. The union objected that new shifts of border inspectors could not be added without a collective bargaining agreement. FACT: Collective bargaining did not, and could not, prevent the agency from adding another shift. The union could only ask for notice of the change, and for an opportunity to bargain over ways to ameliorate the impact of the change on employees in the collective bargaining unit. There is nothing in collective bargaining agreements that takes away the President’s ability to add personnel and shifts of personnel when lives are at stake.
FICTION: In 1991, INS attempted to shut down a unit facility in Texas. No more than two union workers were at the facility in its last year, and one manager was capable of handling the workload. Yet, the union challenged the move. FACT: The union did not, and could not, prevent the agency from shutting down the office. The INS did shut down the office. Two years later, the Federal Labor Relations Authority found that INS should have bargained with the union over ameliorating the impact on the workforce before closing the office.
FICTION: In 1995, the INS sought to change its policies regarding body searches of detainees. The union insisted that no change occur until a broader collective bargaining agreement was reached. FACT: The INS decided to prohibit agents from removing the heavy outer garments of suspects to search for weapons. For the safety of employees and the public, the union objected until it had a chance to discuss the impact of the new policy on the INS workforce. In siding with the union, the Federal Labor Relations Authority ruled that the new search policy “adversely affected thousands of bargaining unit employees by increasing the danger to them from concealed weapons remaining undetected under the restrictive rules governing pat downs and strip searches.”