Union News
LAX NTEU President, Tim Smith and LAX NTEU Vice President, Cliff Scholnick, meet with United States Senator, Dianne Feinstein of California during the Legislative Conference addressing important NTEU issues.
Dianne Feinstein's Official Site
LAX NTEU President, Tim Smith meets with California Rep., Laura Richardson (D) during the Legislative Conference representing important NTEU issues.
LAX NTEU President, Tim Smith meets with California Rep., Dana Rohrabacher (R) during the Legislative Conference representing important NTEU issues.
SUMMARY: After advising its local managers this summer to comply with the scheduling requirements of law, four months later, CBP has appealed NTEU’s recent work scheduling arbitration victory on the theory that the law does not even apply.
While not surprised, I am sorry nevertheless to have to inform you that CBP has appealed yet another arbitration loss. CBP’s latest appeal to the Federal Labor Relations Authority (Authority) challenges the decision of an arbitrator who found that CBP had violated 5 U.S.C. 6101(6101) and 5 CFR 610.121 (610.121) when scheduling the work of its Customs Officers. These provisions can be found at Article 21, Section 3 of the NTEU-Customs National Agreement while the two arbitration decisions at issue can be found in a chapter presidents’ memoranda dated November 29, 2007, and October 3, 2008.
As you may recall, for the last seven years and continuing to date, CBP hid behind its NIAP policy to maintain that it was complying with the above-referenced provisions of the United States Code and the Code of Federal Regulations. Not only did CBP refuse to provide Customs Officers with the government-wide scheduling protections enjoyed by most other federal employees, but its reliance on NIAP has deprived legacy Customs Officers of millions of dollars in lost overtime.
CBP’s appeal to the Authority is remarkable. For years, CBP maintained that it was complying with 6101 and 610.121 by taking advantage of the laws two exceptions that permits it to schedule officers as it sees fit. This argument was rejected by the arbitrator who determined that CBP’s reliance on NIAP’s scheduling rules was not the same thing as complying with 6101/610.121. Now, CBP is arguing to the Authority that it has discovered that 6101 and 610.121 do not even apply to Customs Officers because they have a different overtime system than most other federal employees.
Not only did CBP change its mind in the middle of litigation, but its about-face contradicts a policy it distributed to the field as recently as this past summer. By chapter presidents’ memorandum dated June 13, 2008, you were provided a memorandum that CBP issued to its Directors, Field Operations, titled, Work Schedules of CBP Officers and Agriculture Specialists. The memorandum advised local managers to schedule their officers and agriculture specialists in accordance with the relevant requirements of 5 USC 6101 (a) (3) to the extent consistent with the accomplishment of the agency’s mission. At this point it is unclear whether CBP intends to rescind the Work Schedules memorandum or whether its position to the Authority is just another attempt to avoid having to comply with adverse arbitration decisions.
Hopefully, at some point CBP will realize that scheduling its employees in accordance with law, permitting its employees to have consistent work hours with consecutive days off, and, in general, restoring elements of sanity to their work schedules are not inconsistent with the accomplishment of its mission. Unfortunately, we are not there yet. NTEU will contest CBP’s appeal and will inform you of the Authority’s decision.
Colleen M. Kelley
National President
SUMMARY: Earlier this year, the Office of Personnel Management (OPM) proposed to abolish the time-in-grade regulations which have been in operation in one form or another for approximately 60 years and has decided to ignore all that opposition and announced that the Time-in-Grade (TIG) regulation will no longer be effective after March 8, 2009 - or approximately 120 days from Friday’s announcement.
Earlier this year, OPM proposed to abolish the time-in-grade regulations which have been in operation in one form or another for approximately 60 years. NTEU, most other unions, and even a number of agency leaders opposed the move through formal comments. Last Friday OPM decided to ignore all that opposition and announced that the TIG regulation will no longer be effective after March 8, 2009 — or approximately 120 days from Friday’s announcement. In theory, this could mean that anyone can get promoted to a higher grade as soon as the employee meets the qualifications. For example, if an agency hires an outside applicant into a GS-11 accountant position because he/she was at the top of the GS-11 certificate, indeed he/she was substantially over-qualified (but not among the top candidates for a GS-13 job), it could promote the employee from GS-11 to GS-13, 90 days after he/she began employment. Or it could hire a class of 30 into the same career ladder position on the same day and then start promoting some sooner than others based on a manager’s judgment that the employee is “qualified” to do higher graded work. Obviously, the rapidly promoted employee(s) will be thrilled, but the more senior employees on the best qualified (BQ) list who were passed over or the other members of the career ladder class will most likely be quite upset, charging disparate treatment, favoritism, and whatever else comes to mind.
What I find most puzzling about OPM’s decision to “deregulate” this area is that as far as I know, no one was complaining that the TIG rule was a substantial problem that needed correction. It hardly was a perfect rule, but with so many other things under OPM’s domain not working well, I wonder why they forced this change through. Perhaps this is just another example of mindless deregulation for the sake of deregulating that this administration will be known for — or perhaps it is a last ditch attempt to implement pay-banding/pay-for-performance throughout the civil service. I will be sending letters this week to the head of each agency that employs our members informing them that we want to bargain before they change the TIG practice. If you learn of instances of premature implementation, contact your National Field Representative. We need a thorough discussion of each agency’s plans and probably some negotiated rules to protect our bargaining units from abuse — or perhaps to even broadly benefit everyone with this new flexibility.
We are also studying whether OPM followed the law in making this change and could decide to challenge their change. I will keep you posted as we move forward with our efforts to monitor this change for compliance with merit system principles.
Colleen M. Kelley
National President
NTEU’s Successful Legislative Effort Pushes DHS to Drop New Regulations
Washington , D.C. —Legislative language won by the National Treasury Employees Union (NTEU) is directly responsible for action this week by the Department of Homeland Security (DHS) to rescind its much-maligned effort to impose regressive personnel rules on all department employees, the leader of NTEU said today.
All current CBP Officers who elect the new coverage will have their contribution to retirement increased by .5 percent and will receive a more generous LEO pension from July 2008 forward. Officers will have an option to opt out of the LEO coverage.
“Starting with NTEU’s aggressive efforts in Congress and in the courts and concluding with securing a funding prohibition in the continuing resolution for fiscal year 2009, NTEU has been leading the way in the fight against this regressive system, which actually would have harmed the nation’s security,” said NTEU President Colleen M. Kelley.
She made her comments in the wake of a DHS memorandum to the unions representing its employees that it rescinded, effective with yesterday’s start of fiscal 2009, application of its new personnel regulations to all employees.
In recent years, NTEU also has been highly successful in winning legislative approval to reduce substantially the funding for implementation of the DHS personnel regulations.
President Kelley has testified before the House and Senate numerous times in opposition to the system, pointing out the flaws in DHS’s proposal and underscoring for lawmakers the negative impact the department’s efforts were having on the morale of the frontline employees charged with securing our country.
For fiscal year 2009, NTEU won language in the continuing resolution prohibiting DHS from spending money to operate its new personnel system, ensuring that frontline employees will not be moved to an unproven pay for performance system.
“The fact that Congress included this funding prohibition in the continuing resolution demonstrates that these proposed rules were a terrible idea for everyone—the agency, its employees and our nation,” said Kelley.
NTEU previously pursued successfully a federal court suit challenging the legality of efforts to change employees’ collective bargaining, due process and appeal rights.
This is the second of two critical victories for NTEU at DHS. NTEU recently won an enhanced retirement benefit for U.S. Customs and Border Protection (CBP) Officers.
“DHS now has an opportunity to work with employees and their representatives to improve morale that is at or near the bottom among major federal agencies,” said President Kelley.
After years of legal wrangling, the Federal Labor Relations Authority (FLRA) gave NTEU another victory when it recently ordered CBP to bargain with the union over a proposal that provides CBPOs with the option of storing their firearm(s) at work overnight.
CBP had argued that internal security policies required that employees, rather than the agency itself, are responsible for the storage and safety of their own firearms. In a rebuke to the management rights argument, the FLRA was persuaded by NTEU’s evidence showing several benefits of overnight firearm storage, including a reduced risk of civil/criminal liability and disciplinary action; greater freedom of movement for employees; a reduced possibility of public assault from criminals trying to obtain the firearm; and, most importantly, a reduction in the possibility of accidental shootings or theft of the weapon that might otherwise occur at home.
Important notice regarding 2008 rates:
GSA is amending the Federal Travel Regulation (FTR) by increasing the mileage reimbursement rate for use of a privately owned automobile (POA) when used for official travel. This new rate reflects current costs of operating a POA as determined in cost studies conducted by GSA. The government regulation increases the mileage allowance for the cost of operating a POA for official travel from $0.485 to $0.585 per mile.
By Law, GSA is responsible for reviewing the privately owned vehicle mileage reimbursement mileage rate on a yearly basis. However, by law, GSA may not exceed the standard mileage reimbursement rate for a privately owned automobile (POA) established by the Internal Revenue Service (IRS).
SUMMARY: An arbitrator has ordered a 14-year CBPO reinstated with back pay because her resignation was involuntary.
I wanted to bring to your attention to an important arbitration decision we just received concerning the resignation of a long-time CBPO.
The CBPO, who had a good work and clean disciplinary record, was called into an OPR interview and declined union representation. Prior to attending the interview, the CBPO requested annual leave once the interview was completed, which was granted. Upon entering the interview room, she was told to remove her service weapon which she secured in an office. During the three-hour interview, the CBPO was accused of criminal misconduct, which she denied. The CBPO asked to leave the interview numerous times so she could seek advice, but was told she had to resign in order to leave the interview. The CBPO also asked the Assistant Port Director what she should do and was told to resign without giving her any advice about her options. The CBPO signed a Form 52 resigning her position, which contained a statement that the resignation was effective midnight on the date it was signed. Upon leaving the interview, she was distraught and requested a supervisor bring her car keys so she could leave. The supervisor also brought out some other personal items as well as the keys. After seeking guidance, the CBPO verbally notified the supervisor she was rescinding her resignation and delivered a written rescission prior to midnight.
CBP first argued that the case was not arbitrable because the CBPO was no longer an employee because of her resignation, and therefore was not covered by the contract. CBP also argued that the CBPO had abandoned her position when she turned in all of her service equipment and collected her personal belongings. NTEU argued that the case was clearly arbitrable because arbitrators have the same authority as the MSPB, and the Board has jurisdiction to determine if a resignation is voluntary. NTEU also argued that the resignation was coerced by the OPR agents and the Assistant Port Director. Finally, we argued that the employee had requested only her car keys and it was the supervisor who brought the additional items so she had not abandoned her position. It was also un-rebutted that the employee had not turned in all of her service equipment nor had she collected all of her personal belongings. Therefore, the resignation was involuntary, and CBP had removed the employee without providing her due process rights as required by 5 U.S.C. 7513.
The arbitrator accepted all of NTEU's arguments. She found that the matter was clearly arbitrable. She found that the resignation was involuntary because (1) the CBPO timely rescinded or withdrew the resignation before its effective date and time, and CBP did not prove any legitimate reason for refusing to accept the timely withdrawal, (2) the Assistant Port Director failed to provide the CBPO with appropriate advice about her options even though she asked for advice prior to signing the resignation form, and (3) the resignation was the result of coercion by the OPR agents during the course of the investigatory interview.
After finding the resignation to be involuntary, the arbitrator found a constructive removal taken without any due process. The arbitrator ordered retroactive reinstatement with full back pay (including overtime and differentials) and all lost benefits.
Colleen M. Kelley
National President
SUMMARY: CBP has proposed modifications to the parties’ existing agreement on Compensatory Time-Off for Travel.
CBP has proposed modifications to the parties’ existing agreement on Compensatory Time-Off for Travel (TCT) that you were advised of by chapter presidents’ memorandum dated October 1, 2007.
Prior to negotiating with CBP, NTEU was instrumental in getting Congress to pass this legislation in recognition of the uncompensated hours of work-related travel by many federal employees. As a result of this legislation, employees are compensated for this travel in the form of compensatory time.
Some of the proposed changes reflected in the attached proposed policy include:
Employees who carry a weapon are authorized an additional thirty (30) minutes for usual airport waiting time, for example, the time the employees are required to go through security.
Further clarification as to how much time an employee is entitled to if the transportation terminal is outside the limits of the employee’s official duty station. If such is the case, an employee is entitled to TCT for the time spent commuting to the transportation terminal less the time the employee would have spent in a normal work-to-home or home-to-work commute.
Employees, under normal circumstances, should complete and submit a Request to Credit Official Compensatory Time Off for Travel (TCT) Form within fourteen (14) days after return from the travel.
Please read the attached materials carefully and provide your comments to Christina Ballance of the Negotiations Department via e-mail at christina.ballance@nteu.org.
Colleen M. Kelley
National President