12/01/2005

SUMMARY: NTEU and CBP have reached a settlement concerning NTEU’s national grievance filed in response to the suspension of testing in violation of the parties’ Foreign Language Proficiency Award Program Memorandum of Understanding.

NTEU and CBP have come to a settlement agreement on CBP’s failure to test foreign languages skills in violation of the parties’ Foreign Language Proficiency Award Program to the Foreign Language Award Program (FLAP) Memorandum of Understanding (MOU). The attached settlement agreement will apply to:

1. All CBP Officers (CBPOs) employees hired between October 2, 2003 and July 24, 2004;
2. All CBPOs, regardless of hiring date, who submitted an application to be tested but were not tested;
3. All CBPOs, regardless of hiring date, who were told not to apply or were otherwise not able to apply; and
4. CBPOs eligible to be retested after October 2, 2003, who either submitted an application to be tested but were not tested, were told not to apply or were otherwise not able to apply to be tested.

CBPOs eligible under this settlement who have not already done so have 30 calendar days from the agency’s issuance of notice of this settlement to apply. Chapter leaders should help ensure that all employees hired before July 24, 2004, know about the FLAP program, this settlement, and the 30-day window to apply.

BACKGROUND

The FLAP MOU provides cash awards for CBPOs who demonstrate foreign language proficiency and use that foreign language during at least 10% of their job duties. In order to qualify for the program, officers who submit an application take an examination provided by the agency. Depending on the score officers receive on that exam, cash awards range from 3–5% of base salary. After taking the examination, the awards are distributed on a continuing basis and paid out semiannually, provided that the officers continue to use the foreign language for at least 10% of their job duties.

The FLAP MOU has been in effect since 1997 and is attached to this memorandum. The program operated without problem until October 2003 when the agency unilaterally stopped testing officers. NTEU filed a national grievance in response and invoked arbitration. Earlier this month, on the day of the arbitration, the agency indicated it was interested in a settlement, ultimately resulting in the attached settlement agreement.

SETTLEMENT

As stated above, the settlement applies to four groups of employees who will have 30 days from the agency’s issuance of notice to apply. The procedures employees must follow to claim their rights under this settlement agreement are detailed below.

CBP Officers Who Submitted an Application

The agency has a record of 444 CBPOs who applied for testing in FY 2004 and 391 CBPOs who applied for testing in FY 2005. All of these officers have met their application requirements and will be tested on a priority basis in FY 2006. Officers may confirm that their applications have been received by contacting Mr. Hunt at the address listed below.

CBP Officers Hired Between October 3, 2003 and July 24, 2004

All CBPOs hired between those dates must submit an application within 30 days of the agency’s issuance of notice. Some of these officers may already have submitted an application and, therefore do not need to apply again.

Applications must be submitted to Cleatus Hunt, the HQ FLAP Coordinator. The agency prefers that such applications be submitted by fax at (202) 344-2791, Attn: Cleatus Hunt. However, these applications may be submitted by mail to:

Attn: Cleatus Hunt
HQ FLAP Coordinator
U.S. Customs and Border Protection
Room 5.5C
1300 Pennsylvania Avenue, NW
Washington, DC 20229

Upon receipt of application, the agency will send employees two copies of a written decision stating that they are eligible for the FLAP settlement award (eligibility is limited to a determination that they were hired between the applicable dates and have not previously submitted an application). This written decision will be sent within 30 days of the agency’s receipt of the application and will inform employees that they may provide a copy to the local NTEU chapter.

CBP Officers Not Able to Apply

NTEU received several complaints that some CBPOs were not able to apply, either because they were told not to apply or because their applications simply were not accepted. Therefore, this settlement provides that any employee hired before July 24, 2004, may submit an application to be tested. This application should include evidence that the employee was told not to apply to be tested. Examples of evidence that should be submitted if available include:

1. E-mails or letters stating that the employee(s) should not apply;
2. Meetings that took place between the employee(s) and a supervisor/manager, and a statement that at that meeting the supervisor/manager indicated they should not apply;
3. Any other evidence the employee has.

The agency will make a case-by-case determination as to whether the employee is eligible to be tested under this agreement based on the application and the evidence, and will send two copies of a written decision to the employee within 30 days of receipt of the application, one of which will inform the employee that it may be provided to the local NTEU chapter.

The application and accompanying evidence must be submitted within 30 days of the agency’s issuance of notice and should be sent to Mr. Hunt using the same contact procedures listed above.

AWARD DETERMINATIONS AND PAYMENTS

For all employees in any of the above categories, award determinations will be made based on their proficiency scores and when they should have been tested. Award amounts will be based on the original FLAP MOU. This means that subject to the requirements of the FLAP MOU:

1. Employees who submitted an application can demonstrate that they would have submitted an application or were hired in the first six-month period of FY 2004 (between October 3, 2003 and March 31, 2004) will receive an award retroactive to October 3, 2003;
2. Employees who submitted an application can demonstrate that they would have submitted an application or were hired (up to July 24) in the second six-month period of FY 2004 (between April 1, 2004 and September 30, 2004) will receive an award retroactive to April 1, 2004;
3. Employees who submitted an application or can demonstrate that they would have submitted an application in the first six-month period of FY 2005 (between October 1, 2004 and March 31, 2005) will receive an award retroactive to October 1, 2004; and 4) Employees who submitted an application or can demonstrate that they would have submitted an application in the second six-month period of FY 2005 (between April 1, 2005 and the present) will receive an award retroactive to April 1, 2005.

All of the above situations are subject to the requirements of the FLAP MOU, meaning that award amounts are based upon the score received on the examination and that the employees must certify that they used the foreign language for at least 10% of the job duties in each of the six-month periods described above.

Awards retroactive to FY 2004 will be paid with interest at the rate of 5.5%, calculated from the date of December 9, 2004. That date represents the day on which the awards would have been paid had the agency not stopped testing. These awards will be based on the employee’s grade as of September 30, 2004.

Awards retroactive to FY 2005 will be paid without interest. However, the award payments will be based upon the employee’s grade as of September 30, 2005. For many employees, this may represent a higher grade than at the time they should have been tested.

Further, award payments for those employees qualifying under this settlement agreement will be made on a quarterly basis so that employees receive their back pay in as quick and efficient a manner as possible.

Employees Eligible to be Retested

Employees who had previously attained a FLAP proficiency score of between a (2) and (3) on the five-point proficiency scale may have been eligible to be retested. If one of these employees had submitted an application to be retested but were not retested, they now will qualify for an award under this settlement agreement. If that employee receives a higher score on the proficiency test, they will receive back pay consisting of the difference in award amounts between the proficiency levels for FY 2005 only. This back pay will be based upon the employee’s grade as of September 30, 2005.

Employee Notification of Testing Dates

CBP has agreed to make a good faith effort to notify employees at least two weeks prior to their testing date. Employees will lose their right to be tested under this settlement agreement if:

1. the employee fails to report for the scheduled test at the designated location and cannot show that exigent circumstances were present that prevented him/her from reporting; or
2. notification of the employee’s inability to report is not made within five (5) working days prior to the scheduled test to allow for an appropriate substitution from the eligible settlement pool.

CBP has also agreed that in the future it will notify bargaining unit employees at least once a fiscal year of the FLAP MOU, their opportunity to be tested, and the application and testing procedures.

Currently, officers represented by NTEU are the only CBP employees who are rightfully rewarded for the service that they provide to CBP and the American public through the use of their language skills. In the early 1990s, NTEU leaders at both the local and national level effectively lobbied Congress to include a foreign language award provision when the Customs Officer Pay Reform Act (COPRA) was drafted. After COPRA was passed, continuing NTEU efforts were responsible for forcing the Department of the Treasury to issue implementing regulations after which NTEU chapter leaders and national staff successfully negotiated a FLAP agreement with Customs.

Please make sure that employees are aware that Customs/CBPOs have been receiving FLAP awards for the past nine years because of NTEU’s efforts at both the local and national level.

Any questions on FLAP and this settlement can be addressed to your local NTEU National Field Representative or to Jonathan Levine, Assistant Counsel for Negotiations, via e-mail at Jonathan.Levine@NTEU.org.

Colleen M. Kelley
National President