The FLRA has decided that CBP has no duty to bargain over an NTEU proposal that would require CBP to install barriers at APC kiosk podiums that would enable officers to perform their jobs more safely. The FLRA has deferred for the present a decision on whether officers at the podiums should be able to determine for themselves whether to stand or sit while inspecting passengers.
Last month, NTEU received the decision from the Federal Labor Relations Authorit on a negotiability appeal that NTEU filed when CBP refused to bargain over two of its proposals concerning the APC Kiosks. In its decision, the FLRA found one of NTEU’s proposals to be nonnegotiable or outside CBP’s duty to bargain because the FLRA concluded that it violated the agency’s right to determine its internal security practices. On the other proposal, the FLRA determined that it would not make a decision at this time because of procedural reasons. The FLRA found the following proposal to be nonnegotiable:
Permanent waist-high see-through plexiglass barriers will be installed between those performing inspection functions at the APC podiums and the traveling public.
NTEU maintained before the FLRA that the barriers had nothing to do with CBP’s security interests because most officers in the air environment work in booths that provide a barrier between the officers and the passengers despite CBP’s alleged concern that barriers prevent officers from quickly reacting to emergencies. NTEU also argued that the proposed barriers were consistent with CBP’s policy that requires passengers to maintain a sufficient space from an officer upon request.
CBP argued to the FLRA that plexiglass barriers would inhibit the ability of officers to “stop any threat that may arise from drugs or from weapons and that in the event of an emergency, the barriers “could lead to an officer being pinned” between the kiosk podium and the barrier.
Unfortunately, in response to NTEU’s argument that CBP provided “no evidence” that the plexiglass barriers would restrict officers from acting in an emergency, the FLRA held that “we will not examine the extent to which the policy or practice adopted by the Agency to achieve its security objective actually facilitates the accomplishment of these objectives.” The FLRA also held that NTEU’s proposal was not “an appropriate arrangement” because the benefits to employees by having a barrier were outweighed by CBP’s insistence that there be no barriers in the kiosk environment.
The irony of course is that since the parties began bargaining over kiosks, CBP at some locations has inserted barriers between officers and passengers in the kiosk environment because it recognizes that it is what the officers want, they provide a measure of additional safety for the officers, and barriers have absolutely no impact on CBP’s operational interests. As NTEU argued to the FLRA, CBP has “no evidence” that barriers interfere with any legitimate internal security interest because there is no such evidence.
On the other hand, the FLRA decided not to issue a substantive decision on NTEU’s second proposal that would require CBP to place ergonomically appropriate chairs, stools, etc., at the APC kiosk podiums in order to provide officers the discretion to determine for themselves whether or not to sit or stand while inspecting passengers. Rather, the FLRA held that since NTEU had filed an unfair labor practice charge over the issuance by CBP of an airport directive that required officers to stand while processing passengers in the airport environment, an illegal unilateral change, the FLRA would defer ruling on whether CBP has to negotiate over NTEU’s proposal.
CBP has settled the above-referenced unfair labor practice charge by deleting the standing requirement from its directive. As a result, NTEU is in the process of determining whether the Authority will now issue a ruling over its standing/sitting proposal or whether NTEU must refile its negotiability petition in order to get a decision from the FLRA.