August 2, 2007

Term Contract Negotiations

On May 18, 2007, NTEU was certified as the exclusive representative of a new CBP bargaining unit that includes legacy Customs, Immigration and Agriculture employees and CBP Officers hired after July of 2004. As you are aware, CBP forced this election by filing a representational petition with the Federal Labor Relations Authority, allegedly because it wanted “one set of rules” to govern the working conditions of its employees. Based upon CBP’s term contract bargaining strategy and its post-certification communication to its managers (see National Grievances issue below) we were right in believing that CBP’s one set of rules mantra was insincere, and their priority goal is to try to undo contract protections and benefits negotiated by NTEU over the last thirty years.

Immediately after our certification, NTEU presented CBP with a proposed complete contract that was modeled on the prior NTEU contract with changes made to update the contract in line with case law and some of the favorable provisions from other term agreements. Taking CBP at its word, we also proposed that the parties immediately agree to put all bargaining unit employees under the NTEU 1996 National Agreement so that CBP’s three year quest for one set of rules could end. Refusing to take yes for an answer, CBP proposed instead that the new National Agreement be limited to ten contract articles and that NTEU agree to delete the remaining 30 articles from the term agreement.

As a result, NTEU has invoked the services of the Federal Mediation and Conciliation Service (FMCS) in order to reach a ground rules agreement that would govern our term contract bargaining. Hopefully, with the assistance of the FMCS the parties will agree to expedite bargaining as proposed by NTEU. For example, NTEU has proposed that the parties engage in nonstop bargaining rather than the more leisurely and typical two weeks of bargaining per month; that we set a quick deadline for an agreement or declare impasse; that the 1996 NTEU contract serve as the starting point; and that the parties use a private arbitrator to issue a fact-finding report with recommendations if the parties have not reached an agreement within 40 days. NTEU will continue to provide updates on these term bargaining negotiations. (See chapter presidents’ memorandum dated July 13, 2007).

National Grievances on Post-Representation Issues

NTEU has filed two national grievances in response to CBP’s decision to ignore both private and federal sector labor law and selectively void provisions of the NTEU National Agreement and those covering legacy Immigration and Agriculture employees. The first grievance covers CBP’s repudiation of all three legacy contracts while the second focuses on CBP’s noncompliance with Article 33 - Official Time-of the National Agreement. Making it up as it goes along, CBP has invented a new legal theory that it need only follow those contract terms that related to “employee conditions of employment” and not those related to “union institutional benefits.” As such, CBP is knowingly ignoring the central fact that the reason NTEU has been able to bargain over matters such as official time, dues withholding, facilities and services and the like, is because the Federal Labor Relations Authority and the federal courts have already found that such matters, in fact, relate to employee conditions of employment. Given the settled state of the law, it is clear that CBP’s sole motivation in voiding these provisions is to make it more difficult for NTEU to represent employees at the local level, to train officers and stewards and to lobby Congress in response to daily questionable management decisions. Absent settlement of the two national grievances, NTEU will be invoking arbitration so that we can present these important issues to an Arbitrator. (See chapter presidents’ memoranda dated June 14 and July 16, 2007).

New DHS Human Resource Management System

On June 27, 2006, NTEU achieved an historic victory on behalf of DHS employees when a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the DHS labor-management relations regulations. In unusually strong language, the court declared that the DHS scheme “defies common sense,” is “bizarre,” and upheld an earlier decision by a federal district court that the regulations do not “ensure collective bargaining,” as required by the Act. The appeals court agreed with the district court that the regulations allowing management to abrogate collective bargaining agreements were contrary to the Act’s requirements that DHS “ensure employees’ right to bargain collectively.” In addition, the appeals court held that DHS had impermissibly restricted the scope of bargaining and had therefore “render(ed) collective bargaining meaningless.”

As a result of the court’s decision, the entire labor relations scheme remains blocked. On July 16, 2007, the government filed a status report with the district court in which it stated that no decision had been made yet regarding whether to proceed with new labor relations regulations comporting with the Act's requirements or abandon the effort. The report stated that the issue remains under consideration. The court granted the government's request to file another status report within six months. That report, which will advise the court whether any decisions have been made with respect to the labor relations system, is now due to be filed by January 17, 2008. In the event that DHS and OPM attempt to modify the labor relations regulations, NTEU fully intends to participate actively in the statutorily-required "meet and confer" consultation process. We also stand ready, if needed, to initiate additional legal action.

In March 2007, NTEU received notice from DHS that the Department intends to implement the performance management, adverse action, and appeals portions of the regulations on a bureau-by-bureau basis. These portions of the regulations are not subject to the injunction. While CBP has not notified NTEU of its intentions, it would be reasonable to expect that CBP will pursue implementation of these regulations as part of negotiations over a new national contract.

In addition, it is NTEU’s position that since the regulations’ companion “pay-for- performance” system is subject to bargaining by NTEU, it also cannot be implemented until all bargaining obligations are satisfied. Discussions with DHS over a new basic pay system, as part of the statutorily-required "continuing collaboration" process, ended more than a year ago. NTEU currently has no information concerning DHS' plans for implementing a new basic pay system.

On the legislative front, NTEU has been successful in its efforts to reduce FY 2008 funding for implementation of MaxHR. The House adopted, in its FY 2008 DHS Appropriations bill, language that zeroed out all funding for implementation of MaxHR, but included $3 million for the DHS Chief Human Capital Officer to conduct a human capital survey. The Senate passed FY 2008 Appropriations legislation that provides only $5 million for funding MaxHR. The House bill also includes language that prohibits funding for the development, testing, deployment, or operation of any system related to MaxHR, or any subsequent but related human resources management project, until any pending litigation is fully resolved.

For details on DHS’ progress to date on the pay-for-performance scheme addressing performance goals, performance competencies, occupational clusters, and private sector “market-matching” in order to determine pay ranges and pay bands, see chapter presidents’ memorandum dated February 23, 2006. For up-to-date information on the latest version of DHS’ performance management directive, see chapter presidents’ memorandum dated January 18, 2007. For recent information concerning the adverse action and appeals directive, see the chapter presidents' memorandum dated March 28, 2007.

Foreign Language Proficiency Award Program

In August 1996, NTEU and Customs signed a Memorandum of Understanding implementing the agency’s Foreign Language Proficiency Award Program (FLAP) that continued after the transition of Customs into CBP. In order for employees to receive an award, they have to show proficiency in a foreign language via a test, and use the foreign language during at least ten percent of their normal work schedule. Since at least the beginning of fiscal year 2004, CBP stopped testing officers for foreign language proficiency. NTEU was not notified of this change and given the opportunity to negotiate. NTEU filed a national grievance and invoked arbitration that was settled on the even of the hearing. The settlement agreement required CBP to resume FLAP testing and to provide retroactive monetary awards to deserving CBP Officers represented by NTEU who should have been tested but were not.

Subsequently, CBP notified NTEU and the legacy Immigration and Agriculture unions of its proposal to increase the proficiency threshold requirements for an officer to receive an award while also reducing the monetary amount for those officers who qualify for an award. Under its proposal, officers would no longer receive an award if they tested below a “two plus” level on the test. Also, the award amount for officers testing at the “three” or “three plus” level would be reduced from five to three percent of basic pay while those testing at the two plus level would receive an award of one percent instead of the current four percent payout.

CBP has implemented its FLAP proposal for those officers hired after July of 2004. Prior to NTEU’s May 18, 2007 certification, AFGE accepted CBP’s proposal on behalf of the legacy INS officers. After being delegated the authority to negotiate FLAP on behalf of the Agriculture Specialists by their former union, NTEU also agreed to temporarily put the Specialists under the terms of CBP’s FLAP proposal so they could be compensated for their language skills along with the other Officers and Agriculture Specialists represented by NTEU.

NTEU is currently negotiating a FLAP policy for all COPRA covered Officers and Agriculture Specialists in recognition of our newly expanded bargaining unit. NTEU and CBP have been unable to reach a voluntary agreement given the extent of CBP’s “take-back” proposal. As a result, the parties agreed to seek the services of the Federal Mediation and Conciliation Service and one of its mediators is currently assisting NTEU and CBP in our negotiations. If necessary, NTEU will invoke the assistance of the Federal Service Impasses Panel, who, absent a voluntary agreement, will impose an agreement on the parties. (See chapter presidents’ memoranda dated September 21, 2004, October 28, 2004, March 8, 2005, December 1, 2005, December 30, 2005, January 3, 2006 and May 7, 2007)

Residency Requirement

At CBP it’s hard to keep a bad idea down. On October 30, 2006, NTEU and CBP were scheduled to arbitrate NTEU’s national grievance challenging CBP’s implementation of an employee residency requirement. The residency requirement would have required employees working in the United States to also reside in the United States. Aside from the unnecessary disruption to the lives of CBP employees and their families, NTEU challenged the residency requirement as unlawful because it would have imposed a nonmerit factor as a condition of employment. Fortunately, two weeks before the scheduled hearing, CBP informed NTEU that it would not be enforcing the proposed residency requirement and that if it decided to do so, it would provide NTEU with notice of a new residency policy and negotiate prior to implementation.

Unfortunately, by notice dated July 9, 2009, CBP did just that. It has again informed employees that they lack the integrity and common sense to work in the United States yet live abroad. As a result, NTEU will again use the bargaining and grievance-arbitration process to fight CBP’s latest misguided initiative. Hopefully, a third party neutral will agree with NTEU that after over 200 years of not one identified security or operational breach as a result of the existing policy, there is no rational basis to permit CBP to implement its proposal. (See chapter presidents’ memoranda dated July 19, 2007, October 23 and February 10, 2006, December 9, 2005 and July 12 and 22, 2005.)

Personal Appearance Standards

NTEU has filed a second national grievance challenging CBP’s insulting grooming standards that make a mockery of OFO’s repeated statements that it values the professionalism of its uniformed workforce. The grievance alleges that the personal appearance standards are illegal under the United States Code, the Code of Federal Regulations and the parties’ National Agreement because CBP has failed to establish that there is a rationale relationship between performance as a CBP Officer and the grooming standards employment practice. Since NTEU believes that CBP is committing a “prohibited personnel practice” by continuing to enforce the grooming standards, NTEU will be asking an arbitrator to order CBP to cease enforcement of the standards by issuing a “stay” until the completion of all litigation related to the national grievance. After CBP denied the grievance, NTEU invoked arbitration and an arbitrator has been selected. (See chapter presidents’ memorandum dated January 23, 2007.)

The Federal Labor Relations Authority has still not ruled on the two grooming standard appeals that have been filed in response to CBP’s unilateral implementation of its ridiculous and unnecessary personal appearance standards. As you were previously advised, an arbitrator has ruled that CBP violated the parties’ National Agreement and applicable law when it unilaterally implemented the new personal appearance standards. In his decision, the arbitrator rejected all of the many excuses advanced by CBP to explain its illegal conduct. The arbitrator ordered CBP to rescind the grooming standards until it had satisfied its bargaining obligations. CBP has appealed the arbitrator’s decision to the Federal Labor Relations Authority (FLRA) leaving the standards in place. NTEU is contesting CBP’s appeal before the FLRA. As you are aware, the new standards severely limit the amount of facial hair, the length and style of hair for both men and women and the amount and types of jewelry. CBP’s questionable rationale for the new military-type grooming policy, rejected by the arbitrator, is that it will promote employee morale, bolster employee self-confidence, and contribute to the efficiency of the workplace. NTEU has also filed a “negotiability” appeal with the Federal Labor Relations Authority requesting a ruling on whether its proposals, including one allowing employee facial hair, is within the agency’s duty to bargain. (See chapter presidents’ memoranda dated August 6, 2004, October 13, 2004, November 8, 2004, October 17, 2005 and November 15, 2005)

Import Specialist Redesign Negotiations

NTEU has filed a national grievance and invoked arbitration over CBP’s violation of the recently negotiated Import Specialist Redesign Agreement. NTEU is alleging that CBP violated the agreement by failing to offer saved-grade in addition to saved-pay for those Field National Import Specialists (FNIS) who took a voluntary downgrade rather then being forced into the Supervisory Import Specialist position. The grievance also alleges that CBP failed to properly follow the agreement’s FNIS reassignment procedures and breached its commitment not to force any FNIS into the Supervisory Import Specialist position.

CBP has begun implementing its commitment to create and fill over 100 new GS-12 Import Specialist positions. In addition to requesting a briefing on nationwide Import Specialist Staffing levels as required by the agreement, NTEU will continue to lobby Congress for higher staffing levels and reasonable pay grades. NTEU will continue to work with the Government Accountability Office and Congress to ensure that DHS/CBP honors its responsibilities to maintain its customs revenue functions, staffing, and resources as required by Section 412 (b) of the Homeland Security Act.

Other provisions of the agreement address first consideration for bargaining unit positions for those FNIS’s forced to become a supervisor, cargo examination selection procedures, equipment for those Import Specialists performing cargo examinations, and the requirement to use existing agreements and past practices in determining Import Specialist assignments, tariff coverage and assignment of port accounts. (See chapter presidents’ memoranda dated February 5 and May 8, 2007.)

FLSA Litigation for Import Specialists and GS-12 Paralegal Specialists (FP&F Officers)

After a favorable decision from the U.S. Court of Federal Claims in a case presented by NTEU attorneys, GS-12 and GS-13 Import Specialists were reclassified to FLSA nonexempt status on October 30, 2005. GS-12 and GS-13 Import Specialist plaintiffs in that case are now in the process of receiving a total of $1.5 million dollars in compensation. As a result of this litigation, GS-11 import specialists were converted to FLSA nonexempt status on December 31, 2000 and those who joined the litigation also received a settlement check. The case also recently resulted in the conversion of GS-12 paralegal specialists to FLSA nonexempt status on October 30, 2005 and the payment of settlement checks to affected plaintiffs. When combined with previous payouts for claims in other positions during earlier phases of the litigation, this case has now resulted in a total of $3.3 million being paid to plaintiffs.

NTEU has also filed a new national FLSA grievance on behalf of GS-12 and GS-13 Import Specialists who did not join the litigation. While all Import Specialists benefited prospectively from the 2005 court victory, only those who joined the case as plaintiffs shared in the back pay settlement. This new grievance seeks back pay for employees who did not join the suit. It also addresses instances where CBP failed to properly pay certain Import Specialists for their overtime following their October 5, 2005 conversion to FLSA nonexempt status. Settlement discussions concerning this grievance are underway. (See chapter presidents’ memoranda dated April 26, 2006)

FLSA Litigation for Auditors, Chemists, Textile Analysts, Field Analysis Specialists, and Information Technology Specialists

NTEU has filed a national grievance challenging CBP’s classification of Auditors, Chemists, Textile Analysts, Field Analysis Specialists, and Information Technology Specialists as exempt from the Fair Labor Standards Act. As you are aware, CBP’s classification of these positions as FLSA-exempt causes employees working in these positions to receive overtime pay at a capped rate under the Federal Employees Pay Act. If paid under the FLSA, they would be entitled to overtime compensation at a rate equal to one-and-a-half times their regular rate. The agency’s classification decision may also cause employees to receive no compensation for travel time that may be compensable under the FLSA. In accordance with the FLSA, NTEU is seeking back pay and an equal amount of liquidated damages for affected employees. An arbitration hearing concerning the FLSA exemption status of the Auditor and FAS positions was held from July 17-19, 2007. Arbitration of the FLSA exemption status of the Chemist, Textile Analyst, and Information Technology Specialist positions is set for November 28-30, 2007. (See chapter presidents’ memorandum dated February 6, 2006).

National COPRA Grievance and National Grievance on CBPO FLSA Coverage

NTEU is also moving forward with two national grievances seeking compensation for unpaid firearm and canine-related overtime. In one of the grievances, NTEU challenges CBP’s decision to exempt the CBPO position from coverage of the FLSA, thereby depriving employees of overtime payments under that statute. In the other grievance, NTEU seeks compensation under COPRA for certain firearms and canine-related overtime work. These related cases are being heard by the same arbitrator. The hearing began in April 2007, and the first round of briefs, focusing on CBP’s legal liability, has been submitted to the Arbitrator. If the Arbitrator rules in favor of NTEU in this first phase of the proceedings and the parties are unable to reach agreement on an appropriate remedy, an additional hearing and/or briefing may be required.

In a related case, in March 2007, the U.S. Court of Appeals for the Federal Circuit affirmed the decision of the U.S. Court of Federal Claims to compensate approximately 60 former Customs CEOS under the FLSA for unpaid firearms and canine-related work. NTEU submitted several amicus briefs on their behalf in the Court of Federal Claims and submitted an amicus brief in the U.S. Court of Appeals for the Federal Circuit in support of their FLSA claims.

FY 2008 DHS Appropriations, the SAFE Port Act and LEO Status

Section 202 of the SAFE Port Act (P.L. 109-347) authorized the hiring of a minimum of 200 additional CBP Officers for fiscal years 2008 through 2012. The House and Senate FY 2008 appropriations bills include funding to pay for the FY 2008 new hires. The bills also continued the $35,000 overtime cap for CBP officers.

The SAFE Port Act also required CBP to complete a Resource Allocation Model (RAM) to determine optimal staffing for commercial and revenue functions. The Model must comply with the requirements of section 412 (b) of the Homeland Security Act of 2002 and requires the CBP Commissioner, not later than September 30, 2007, to ensure that the requirements of 412 (b), for example no reduction in trade staffing levels and resources, are fully satisfied. The CBP positions protected by Section 412 (b) include Entry Specialists, Import Specialists, Drawback Specialists, National Import Specialists, Fines and Penalty Specialists, Attorneys at ORR, Auditors, International Trade Specialists, and Financial Systems Specialists.

The SAFE Port Act also mandated that the Government Accountability Office (GAO) conduct a study evaluating the extent to which DHS is meeting its obligations under section 412 (b) of the Act with respect to the maintenance of customs revenue functions. The GAO report (GAO-07-529) “Customs Revenue-Customs and Border Protection Needs to Improve Workforce Planning and Accountability” was released on April 12, 2007, and concludes that CBP has much work to do to meet its section 412 (b) obligations.

The Senate Finance Committee has tentatively scheduled hearings on Customs Reauthorization legislation that will include the results of the RAM and this GAO report in late fall.

On the issue of Law Enforcement Officer (LEO) status for CBPOs, FY 2008 DHS authorizing legislation (H.R. 1684) and appropriations legislation (H.R. 2638) was passed by the House that included prospective LEO coverage only to eligible CBPOs. There is no LEO language in the recently passed Senate appropriations bill (S. 1644). The House appropriations LEO provision will be addressed in the House and Senate appropriations conference. NTEU is working with conferees to provide some consideration for CBPOs that will not be eligible for this new LEO benefit because of age restrictions. We will keep you posted via CP memos at this issue develops in the House-Senate Conference.

First Amendment Lawsuit for CBP Officer Holding a Local Nonpartisan Political Office

NTEU has filed a first amendment lawsuit against CBP in response to its order requiring a CBPO to resign his seat on a nonpartisan city council. NTEU obtained emergency relief to bar CBP from enforcing its order and proceedings on the merits are now underway. The CBP Officer has served since 2004 as a member of the local city council, an unpaid, nonpartisan position. In fact, as recently as early 2005, the Officer was commended by the Director, Field Operations for his civic service. Yet in December of 2006, the Officer was abruptly ordered to resign his seat or face disciplinary action by CBP. Because the position is nonpartisan, there is no allegation that his service violates the Hatch Act. Instead, CBP is alleging that his public service creates the “appearance” of a conflict of interest with his official CBP duties, even though the Officer abstained from voting on the only issue involving CBP that has ever arisen before the city council. (See chapter presidents’ memorandum dated Marcy 13 and January 12, 2007.)

Lawsuit Challenging Federal Career Intern Program

NTEU has filed a lawsuit challenging the legality of the Officer of Personnel Management’s regulations establishing the Federal Career Intern Program (FCIP). NTEU has alleged that there is no justification for FCIP’s broad exemption from the competitive examination and selection requirements fundamental to the federal civil service. CBP now uses FCIP authority as its exclusive mean of hiring new CBP Officers. The FCIP was originally created in 2000 as a limited special focus hiring program to provide formally structured two-year training and development “internships” as a strategic recruitment tool. Since then, however, because OPM placed very few restrictions on the program, its use by agencies has increased so dramatically that it amounts to a frontal assault on the competitive examination process as the primary method of hiring for competitive civil service positions. As established by OPM, the FCIP allows agencies to hire “interns” for almost any entry-level position. FCIP vacancies are not required to be posted for internal candidates or on OPM’s USAJOBS web site. “Interns” serve a two-year “internship” after which the agency may noncompetitively convert them to permanent service status, effectively doubling the one-year probationary period applicable to new hires in competitive service positions. The FCIP authority threatens to undermine fundamental merit systems principles. These principles require that selection and advancement be determined on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. NTEU’s lawsuit asks the court to declare FCIP’s hiring authority illegal. (See chapter presidents’ memorandum dated January 24, 2007.)

National Inspectional Assignment Policy (NIAP)

An arbitrator has ruled in NTEU’s favor on our National NIAP grievance finding that the revised NIAP requires CBP to bargain with NTEU at the national level over any local changes in assignment and overtime procedures. After collecting information from NTEU chapters for purposes of fashioning an appropriate remedy, NTEU is now waiting for the decision from the arbitrator on his remedial order. As a result, this is not a final decision so we should not expect CBP to immediately agree to bargain with NTEU on assignment and overtime changes. CBP, having failed to take advantage of the opportunity to resolve the underlying grievance in hopes of beginning to turn around its abysmal morale survey results, has apparently decided to appeal another litigation loss in hopes of delaying or avoiding an eventual remedy. (See chapter presidents’ memorandum dated November 22, 2006.)

Scheduling of Tours of Duty and Work Shifts for CBP Officers

NTEU has litigated and presented its post-arbitration brief over a national grievance that we filed concerning the assignment of work to CBP Officers. NTEU’s grievance alleges that CBP has violated 5 U.S.C. § 6101, 5 C.F.R. § 610.121 and corresponding provisions found at Article 21, Section 3 of the parties’ National Agreement. Under the law, generally, CBP is required to schedule tours of duty and work shifts such that they are scheduled one week in advance, officers are provided two consecutive days off, the working hours in each day in the basic workweek are the same, the basic nonovertime workday may not exceed eight hours, the occurrence of holidays do not affect the designation of the basic workweek, and there are no breaks in working hours of more than one hour in a basic workday. NTEU believes that CBP is violating these provisions in an attempt to avoid the payment of overtime and that CBP’s scheduling practices are not justified by the only two exceptions allowed by law: that to do otherwise would “seriously handicap” the accomplishment of CBP’s mission or its costs would be “substantially increased.” Since, the United States Code and the Code of Federal Regulations establish these core scheduling rules, NTEU has argued to the arbitrator that NIAP’s references to “least cost” and “operational need” cannot be used by CBP as a valid defense. NTEU will shortly be filing a similar national grievance on behalf of the officers and agriculture specialists now represented by NTEU in the newly certified bargaining unit. (See chapter presidents’ memoranda dated March 7, 2006 and June 20, 2006.)

New GS-13 Auditor Position in the Office of Regulatory Audit

In order to keep competitive with other employers hiring auditors, CBP’s Office of Regulatory Audit (ORA) has decided to create a new GS-13 Auditor position that will replace the current GS-13 Lead Auditor position. According to CBP, it will be promoting a significant number of GS-12 Auditors into the new position that will take the lead in various complex audits while also serving as ORA’s most highly skilled Auditors. Under CBP’s proposal, current GS-13 Lead Auditors will be automatically reassigned into the new position. The new position will be available in all current Regulatory Audit locations, including those offices scheduled to close by attrition that were listed in an internal management report. (See chapter presidents’ memorandum dated December 28, 2006.)

National FLETC Training Grievance

CBP officials assert that all eligible current and former employees have been issued their settlement payments pursuant to the NTEU-CBP Settlement Agreement discussed in detail below. Nevertheless, NTEU filed a national grievance challenging CBP’s failure to confirm these payments in writing and the agency’s denial of requests for payment submitted by certain former employees. CBP finally provided written confirmation of the payments. Settlement discussions over the payment denials and an appropriate response to NTEU's request for information needed to determine whether the agency has otherwise complied with the Settlement Agreement and applicable law, rule, or regulation are underway. (See chapter presidents’ memorandum dated January 17, 2007.)

In May of 2006, NTEU and CBP entered into a settlement agreement to compensate legacy Customs Inspectors and Canine Enforcement Officers (CEOs) for their unpaid sixth day of basic training at FLETC. CBP agreed to the settlement after an arbitrator sustained an NTEU national grievance in June 2005 and ruled that legacy Customs Inspectors and CEOs were wrongfully excluded from coverage of the Fair Labor Standards Act (FLSA) and ordered CBP to pay overtime to affected employees who were forced to work an unpaid sixth day of training at FLETC. The arbitrator rejected CBP’s argument that an Officer’s coverage under COPRA precluded FLSA coverage. Rather, she ruled that affected employees were entitled to time and a half overtime pay under the FLSA for their sixth day of training at FLETC.

NTEU’s tenacity resulted in very favorable settlement terms to resolve this long-standing dispute. The vast majority of affected employees have already received settlement awards derived from the Customs Officers Pay Reform Act’s (COPRA) double-time overtime rates. The settlement payments are tied to the grades of employees when they began FLETC basic training and are as follows: GS-5: $2,858.24; GS-7: $3,539.36; GS-9: $4,331.36; GS-11: $5,239.52. Among those included in the settlement are employees hired into NTEU’s bargaining unit as GS-1890 Customs Inspectors and GS-1801 CEOs with the expectation of being converted to GS-1895 Customs and Border Protection Officers (CBPOs).

These figures resulted from the following settlement terms:

• Officers will be paid for 88 hours of double-time at Step 5 of each grade using the 2004 locality pay rates in effect for the San Francisco-Oakland-San Jose (SF-Oak-SJ) locality pay rates;
• Officers will be compensated for 11 full Saturdays (88 hours), even if they did not work that many additional eight-hour days;
• Officers will be compensated at Step 5 of their grade, even if they were paid at a lower step when they began basic training;
• Officers will be compensated using 2004 double time rates even if they attended basic training during 2002 or 2003 when hourly rates were lower;
• All employees will be compensated using the SF-Oak-SJ pay table, which had the highest hourly rate of any pay area, even if they were paid under another locality’s pay table when they began training.

For all affected employees, this results in pay in excess of the FLSA time-and-a-half ordered by the arbitrator. According to CBP, 5,187 individuals will receive a total of $16.5 million under the settlement agreement. (See chapter presidents memoranda dated January 13 and 30, 2006, May 1, and 22, 2006, July 7, 2006 and August 1, 2006)

ACE

CBP is in the process of implementing the latest ACE release involving entry summary, accounts and revenue (ESAR). According to the agency, “ESAR will provide enhanced account management functions, a single source for master data, and an integrated account-based, financial and entry summary processing system.” The new release will enable trade personnel to use ACE to create accounts, maintain account master data, cross account access, merge accounts, and update CBPR 5106. In addition, the type of accounts has been expanded such that they cover: lighterman, facility, facility operator, service provider, manufacturer ID/Shipper, and thirty party claimant. Approximately 3,250 employees will be impacted by this latest ACE release, including some CBP Officers and Agriculture Specialists. CBP will be providing either web-based or instructor-led training with such training scheduled for summer of 2007. (See chapter presidents’ memorandum dated May 25, 2007)

Establishment of the Office of Trade

NTEU and CBP have negotiated a Memorandum of Understanding concerning the establishment of a new Office of International Trade within CBP. The new Office consolidates CBP’s existing Office of Strategic Trade (OST) and the Office of Rules and Regulations (ORR). Frontline trade jobs carried out in the ports-of-entry will continue to be performed within CBP’s Office of Field Operations’ management structure. The Office of Trade has been tasked with providing uniformity and clarity for the development of CBP’s national strategy to facilitate legitimate trade and will manage the design and implementation of results-drive measurements of trade compliance and enforcement. It will include all functions and staff from OST and ORR. It will also include designated national program managers/specialists from Headquarters, Headquarters national analysis specialists and the national account managers currently stationed at ports of entry. CBP represents that “there will be minimal changes to existing offices, divisions and branches,” and that “most employees will see little or no change other than realignment to the new Office.” The MOU confirms that aside from a different chain-of-command, the new Office will not impact employees’ conditions of employment such as bargaining unit status, work schedules, flexi tour with credit hours and flexi place. (See chapter presidents’ memoranda dated October 19, and September 15, 2006).

National Grievance Concerning Reassignment of Field National Import Specialists

NTEU has received a favorable grievance arbitration decision over CBP’s decision to involuntarily reassign Field National Import Specialists (FNIS’s) into the Supervisor Import Specialist position without first bargaining with NTEU. In agreement with NTEU, the arbitrator rejected CBP’s argument that it had no obligation to bargain with NTEU because the employees were reassigned into a nonbargaining unit position. According to the arbitrator, CBP had an obligation to bargain because the change significantly impacted the working conditions of the FNISs by taking away their right to receive the benefits of NTEU representation such as the agreements negotiated on their behalf. While the arbitrator did not order a status quo ante remedy, he did order CBP to bargain over proposals that address procedures for directing the reassignments of employees to nonbargaining unit positions and over appropriate arrangements for employees so reassigned. Significantly, he also held that any negotiated agreement on this issue could have retroactive application. As has become the custom for CBP in order to hold on to the benefits of its unlawful conduct as long as possible, CBP has appealed the arbitrator’s decision and the parties are waiting for the decision on appeal from the FLRA (See chapter presidents’ memoranda dated April 18, 2005, June 22, 2006, and July 26, 2006)

Spraying Employees with Oleoresin Capsicum (OC) as Part of Intermediate Use of Force Certification

NTEU and CBP have agreed that officers will have the option of being certified to carry OC spray, the Collapsible Straight Baton or both intermediate weapons. Officers will still be required to attend OC spray training. However, if they do not want to be exposed to OC spray, they will not be exposed. In such circumstances, they will not be certified to carry OC spray. Officers who have already been certified to carry OC spray will still be permitted to carry and use OC spray, even if such certification did not require an OC spray exposure. New officers in the category “unrepresented bargaining unit employees” will be exposed to OC spray as part of basic training. However, the benefits of the NTEU-CBP OC spray agreement will also apply to legacy officers that previously worked for Immigration and Agriculture. CBP field managers have been provided with a memorandum from Patricia Duffy dated September 6, 2006, confirming the information conveyed above. (See chapter presidents’ memorandum dated September 7, 2006).

Following a request from NTEU, the National Institute for Occupational Health and Safety (NIOSH) conducted a health hazard evaluation of a 2006 OC spray training exercise at FLETC that resulted in injuries to two trainees and a supervisor. In June 2006, NISOH issued a report criticizing the manner in which CBP conducted the exercise. Following the issuance of the report, NTEU demanded that CBP cease OC spray training exercises and filed Freedom of Information Act (FOIA) requests with CBP and FLETC for documents related to the FLETC incident and subsequent investigation. See the chapter presidents' memorandum dated June 21, 2007 for additional information.

Investigatory Interviews of Bargaining Unit Employees Conducted by the DHS Office of Inspector General and CBP’s Office of Professional Responsibility

NTEU has filed a national grievance against CBP and unfair labor practice charges against DHS and DHS’ Office of Inspector General challenging their continuing failure to follow the procedures of Article 41 of the National Agreement when conducting investigatory interviews of bargaining unit employees. By failing to follow the procedures of Article 41, employees are not being advised of their right to NTEU representation during investigatory interviews and are not accorded similar rights set forth in Appendices G through L of the National Agreement. NTEU has repeatedly brought these concerns to the attention of CBP but both DHS OIG and CBP OPR apparently believe they are not legally bound by CBP’s obligations under Article 41. Arbitration has been invoked. (See chapter president’s memorandum dated March 15, 2006)

Awards and Recognition

Undeterred by a recent arbitration decision that concluded that CBP unlawfully terminated the negotiated Article 17 Awards and Recognition procedures, CBP once again used the same discredited, secretive, and illegal performance awards policy to reward fiscal year 2006 employee performance. NTEU has invoked arbitration over a national grievance to challenge the 2006 award process just as we successfully did for fiscal year 2005.

As you were previously advised, NTEU received a favorable arbitration result that concluded that CBP had unlawfully terminated the negotiated Article 17 Awards and Recognition procedures when it unilaterally imposed its own awards system. The arbitrator ordered CBP to return to the prior joint awards process where awards are determined by a joint union-management committee, and to rerun the fiscal year 2005 awards process using the Article 17 procedures. Once again, however, CBP has delayed the ultimate resolution of this issue by appealing the arbitrator’s decision to the FLRA. In its appeal CBP argued that the award should be overturned because it allows employees to grieve CBP’s award decisions. Yet, CBP has acknowledged that employees would also be permitted to file grievances under the agency’s unlawfully implemented award process. From the agency that brought you grooming standards to improve your self-confidence, CBP has also asked the Authority to overturn the arbitrator’s decision in order to improve employee morale. Employees are encouraged to keep a record of their work achievements for fiscal years 2005 and 2006 in the event that the FLRA upholds the arbitrator’s remedy to rerun the 2005 award process and NTEU gets a similar remedy concerning our fiscal year 2006 award grievance. (See chapter presidents’ memoranda dated January 27, 2005, November 29, 2005, March 1, 2006 and July 17, 2006)

NTEU’s Use of CBP’s Electronic Mail System

NTEU has negotiated a favorable settlement to resolve a national grievance filed concerning the contractual right of NTEU representatives to use CBP’s electronic mail system (e-mail). NTEU was forced to file the grievance when CBP interpreted Article 34 of the parties’ National Agreement as prohibiting NTEU from transmitting the DHS Update and other types of NTEU mass communication via CBP e-mail. As a result of the settlement, CBP acknowledged NTEU’s right to use its e-mail system for all “communications concerning Employer-Union business” pursuant to Article 34, § 8.A. of the National Agreement. During settlement of the national grievance, CBP also indicated a willingness to resolve local grievances on the same issue, including those where disciplinary actions were involved. (See chapter presidents’ memorandum dated May 25, 2007).

Firearm Storage Negotiability Issue

In December 2000, Customs proposed a policy related to the storage of firearms. In response, NTEU proposed that “Customs will ensure that either a lockbox or other secure and locked container such as a safe, file cabinet, or desk is available at all government offices where armed employees work or are assigned. Routine overnight storage of a firearm in a government office is permitted.” NTEU appealed a two to one adverse decision from the FLRA that found that Customs/CBP did not have to negotiate over NTEU’s proposal. The United States Court of Appeals for the D.C. Circuit overruled the FLRA because it failed to conduct its analysis based on the record evidence. The negotiability issue has been remanded to the FLRA to issue an “appropriate arrangement/impact” analysis based on a proper reading of the record. After over two years, the FLRA has still not issued its decision. (See chapter presidents’ memorandum dated April 18, 2005).

Firearms and Use of Force Handbook Issues

NTEU and CBP have reached an agreement providing officers with “due process” rights that will require CBP to explain why an employees’ authority to carry a firearm has been denied, suspended or rescinded and their right to provide written and oral evidence to persuade CBP to reverse its decision. The agreement also requires CBP to provide officers with regular written status reports concerning the status of investigations connected to their authority to carry a firearm.

The parties are also negotiating over an NTEU proposal that would require the agency to give priority to those investigations related to an officer’s authority to carry a firearm and to conduct such investigations in an expeditious manner. CBP asserts that it has no control over the investigations of its employees conducted by DHS OIG and ICE and therefore cannot agree to NTEU’s proposal. As a result, NTEU has invoked the services of the Federal Mediation and Conciliation Service to assist the parties in reaching an agreement.

NTEU has been pressing Customs and then CBP on this issue for some time given the agency’s inability to resolve firearm carriage issues in an expeditious manner. As you are aware, CBP does an excellent job of removing an officer’s firearms carriage authority pending the result of an internal agency investigation, but an abysmal job in conducting such investigations expeditiously. As a result, officers are prevented from performing the full range of their duties, are often prevented from working overtime, and in general, are put in workplace limbo. NTEU’s proposals are designed to rescue these investigations from the “black hole” of the agency’s investigative machine and to require CBP to make a final decision concerning whether to allow an officer to carry a firearm.

Many CBP managers have told NTEU off the record that they support our efforts on this issue. These efforts have included a negotiability appeal to the FLRA when Customs and then CBP refused to bargain over these common sense proposals, an appeal to the Court of Appeals for the D.C. Circuit when the FLRA sustained the agency’s refusal to bargain, successful litigation before the Court that resulted in a decision overturning the FLRA’s rulings, and subsequent negotiations with CBP resulting in the parties’ due process agreement. As the parties’ negotiations progress, I will provide you further information on NTEU’s efforts to require CBP to give firearm carriage authority investigations priority and to conduct them in an expeditious manner. (See chapter presidents’ memoranda dated November 18, 2004, February 21, 2006, and August 21, 2006).

CBP Refusal to Comply with Federal Service Impasses Panel Decision on Cell Phones and Pagers

This issue provides a text book example why the federal sector bargaining process needs to be modified to provide “one-stop shopping.” In the latest litigation round that began in 2002, an arbitrator has sided with CBP and decided that NTEU’s bargaining proposal requiring CBP to provide dedicated phone lines for emergency calls to employees violates the agency’s right to assign work and determine its internal security practices.

As you are aware, CBP implemented a policy prohibiting employees from carrying and using cell phones, pagers and similar communication devices when in primary and secondary areas. In response, NTEU presented a proposal to the Federal Service Impasses Panel (FSIP) that CBP be required to ensure that manned telephone lines are available at all ports for the purpose of receiving emergency calls to bargaining unit employees. Recognizing the significant adverse impact on employees from the agency’s new wireless communication policy, the FSIP ordered CBP to implement NTEU’s proposal.

Nevertheless, CBP refused to comply with the FSIP order, asserting management rights arguments that had already been rejected by the FSIP. In response, NTEU arbitrated a national grievance to require CBP to comply with the FSIP order and install dedicated telephone lines at all ports of entry where cell phone use was prohibited. The arbitrator ruled for CBP on procedural grounds and NTEU appealed the decision to the Federal Labor Relations Authority (FLRA). Subsequently, the FLRA reversed the arbitrator’s dismissal of the national grievance on procedural grounds and ordered the arbitrator to consider NTEU’s argument on the merits that its proposal was negotiable.

As indicated above, however, the arbitrator has found for CBP. NTEU has again appealed the arbitrator’s decision to the FLRA, asserting that the FSIP was correct in initially finding NTEU’s proposal to be within CBP’s duty to bargain. If the FLRA finds that NTEU’s proposal was negotiable as found by the FSIP, it must also find that the FSIP decision was lawful, requiring CBP to comply with its terms and provide the dedicated telephone lines. (See chapter presidents’ memoranda dated Marcy 21, 2007, January 11, 2005 and September 13, 2006)

Dues Withholding/Debt Collection Act

An arbitrator has concluded that CBP violated the dues withholding article of the parties’ National Agreement by failing to commence dues withholding in a timely manner and by improperly removing employee-members from dues withholding. She also found that CBP violated the Debt Collection Act by failing to grant employees a waiver from the requirement to reimburse CBP for the back dues it ultimately paid to NTEU. CBP has assured NTEU that it is working diligently to correct the mistakes that led to NTEU’s national grievance and to improve its dues withholding process so that employees are not summarily removed from dues withholding merely because they were the subject of a personnel action such as transferring to a different port. CBP has decided not to appeal the arbitrator’s decision and will reimburse the employees for back dues it improperly collected under the Debt Collection Act. (See chapter presidents’ memorandum dated October 6, 2006.)

Please contact your National Field Representative or Jonathan S. Levine, Assistant Counsel for Negotiations, via e-mail at Jonathan.Levine@nteu.org if you have any questions on any of these issues.

Colleen M. Kelley
National President