NBPC GRIEVANCE PROCEDURE
|Step||Time Frame||To Whom||Requirements||Response|
|I||30 calendar days||Supervisor||Oral (informal)||Oral
5 work days
|II||15 calendar days||CPA||Written
3. CBA Cites
4. Reasons for dissatisfaction
5. Corrective Action (remedies)
20 calendar days
|III||15 calendar days||BP Chief
Copy to LER
1. Copy of Step II
2. Copy of Step II decision
3. Reasons for dissatisfaction
– Send copy of Step III to CPA
30 calendar days
|Arbitration||15 calendar days
After receipt of final decision
If service by mail, add 5 calendar days.
1. Letter invoking arbitration; or
2. FMCS Form R-43
GRIEVING DISCIPLINARY ACTIONS:
1. Official reprimand. Begin at Step II, Article 32, and continue thru each step. [See Article 32, I (1)]
2. Suspension of 14 days or less, disciplinary transfer, or an adverse action. Employee may request local to pursue to arbitration without intervening steps. [See Article 32, I (2)]
A PURE GRIEVANCE
A pure grievance is a grievance which alleges a violation of one of the provisions of the contract C as opposed to a grievance filed on behalf of an employee against whom disciplinary or adverse action has been taken. The scope of the grievance procedure in our current contract is a broad scope grievance procedure. Article 33 of the contract defines a grievance as:
A grievance means a complaint either by a unit employee concerning his or her conditions of employment, or by the Union in its own behalf or concerning conditions of employment of any employee. Unless excluded below, such a complaint may concern the adverse impact of:
(1) the effect or interpretation, or a claim of breach of this master Agreement, or other written agreement between the parties; or
(2) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.
Anything not excluded in the contract (Article 33, Section B) is grievable:
(1) any claimed violation of Subchapter III of Chapter 73 of Title 5 U.S.C. (relating to prohibited political activities);
(2) retirement, life insurance, or health insurance;
(3) a suspension or removal under Section 7532 of Title 5 U.S.C. for reasons of national security;
(4) any examination, certification, or appointment;
(5) the reclassification of any position which does not result in a reduction in grade or pay of any employee;
(6) a complaint of discrimination which is listed in 5 U.S.C. 2302(b)(1) if the employee has elected to use the statutory appeal procedure;
(7) an appeal of an adverse action based on performance under 5 U.S.C. 4302 or efficiency under 5 U.S.C. 7512 if the employee elects the statutory appeals procedure provided under 5 U.S.C. 7701;
(8) as an interim procedure, until the negotiated Merit Promotion Plan is appended to the contract in accordance with Appendix II, Steps I, II, and III of the grievance procedure do not apply to the Administrative Manual Section applicable to the Merit Promotion and Reassignment Plan. Instead of referral to a grievance examiner under the Administrative Manual Section applicable to the Employee Grievance System, as referred to in the Administrative Manual Section applicable to the Merit Promotion and Reassignment Plan, the Union may invoke arbitration in accordance with Article 34. Grievances on appraisals described in the Administrative Manual Section applicable to the Merit Promotion and Reassignment Plan may be grieved starting at Step I of the negotiated grievance procedure;
(9) a Union appeal of an adverse action or an allegation of discrimination against any employee if the Union is not expressly designated by the employee as his or her representative in the matter.
We have handled a several Apure grievances@ in the past and generally such grievances have consisted of situations in which the agency has improperly denied the trading of shifts (Article 28), denied a proper request for official time (Article 7), failed to grant leave requests (Article 14) and failed to assign an injured employee to light duty (Article 20), etc. All of these issues have been arbitrated and we have usually won.
OUTLINE OF STEP II AND/OR STEP III GRIEVANCEPURPOSE:
Pursuit of a pure grievance to the second and third step. Many of these grievances will eventually proceed to arbitration. A well-written and researched Step II or III grievance prepares the case for the next level.
I. Cover Letter/Introduction
A. Step II grievance should be addressed to Chief Patrol Agent. Step III grievance should be addressed to USBP Chief with a copy to Director of Labor Employee Relations (LER)
B. Summarize results of informal previous steps of grievance procedure. (Include date of meeting and participants.)C. Set forth briefly reasons for dissatisfaction with previous results.
II. Statement of the Case
A. Background of the Grievant (If applicable)
1. Years in service, grade, duty post
2. Disciplinary Record (if any), or any special recognition
3. Recent Supervisory Appraisal (if applicable)
4. Union Involvement (if applicable, to establish any anti-union animus)
B. Sequence of Events Leading to Grievance
1. Begin with earliest applicable event.
2. Fully explain events C names, dates, places etc.
C. Violation(s) of the Collective Bargaining Agreement
1. Cite article(s) violated.
2. How violated.
3. Describe Apast practices@ related to article, if applicable.
4. Provide supporting case law/arbitration decisions
D. Conclusion and Remedies
1. Brief closing remarks.
2. List remedies sought.
SECOND STEP GRIEVANCE C GEORGE DEAR
This is a second step grievance filed on behalf of Border Patrol Agent George Dear. On January 3, 1994, Agent Dear and I presented a first step grievance to Agent Dear’s supervisor, Roy Chavez. David Peter, Acting Patrol Agent In Charge, was also present at this meeting. Essentially we are alleging that the agency has violated Article 20 (Disabled Employees) of the collective bargaining agreement by refusing to allow Agent Dear to continue performing his duties in the BORCAP office of the Kingsville station.
On December 29, 1993, an announcement was made by agency managers that Alight duty@ assignments would no longer encompass any law enforcement work. Agent Dear was then told that the only Alight duty@ position available in the station was that of an assistant to the station secretary, performing menial tasks, and that he would, as of January 9, 1994, no longer be able to continue performing his current duties in the BORCAP office.
As a remedy we asked :
1) that Agent Dear be allowed to continue in his current position; and
2) for restoration of any sick leave Agent Dear will be forced to use pending the outcome of this grievance.
In response to the first step grievance, both Chavez and Peter stated at the meeting that they had no authority to grant the requested remedy. In addition to the foregoing, this grievance now encompasses a second alleged contract violation. Article 3 (G) of the collective bargaining agreement requires that the agency notify the Union, in writing, prior to implementing any changes in Apersonnel policies, practices, and/or working conditions.
The agency, by its actions, has unilaterally changed and limited the assignment of limited duty without prior notice to the Union. Accordingly, we now add to the remedy a request that the agency cease and desist from implementing this change in working conditions until such time as the matter has been fully negotiated with the Union.
II. STATEMENT OF THE CASE
A. BACKGROUND – GRIEVANT
Agent Dear entered on duty as a Border Patrol Agent on November 11, 1988, in Las Cruces, New Mexico. In September of 1989 he submitted a request for a compassionate transfer to the Corpus Christi area to accommodate medical problems relating to his autistic son. He was not granted the compassionate transfer, but was granted instead a Aneeds of the service@ transfer to the Kingsville station. He entered on duty at Kingsville on September 23, 1989.
On February 14, 1992, Agent Dear was responding to a sensor on the west side of the checkpoint, 35 miles south of Kingsville, when he was assaulted by an undocumented Peruvian national. Agent Dear was knocked down and the assailant unsuccessfully attempted to grab Agent Dear’s gun. In the course of the assault, Agent Dear sustained injuries which severely damaged the meniscus and verticulate cartilage in his knee. His attending physician determined that surgery was required. Unfortunately, however, it took such a long time for the Office of Workers’ Compensation to approve the surgery, that his knee deteriorated during this period of delay. As a result, he now has an arthritic condition in his knee which makes it impossible for him to run long distances and climb hills.
Agent Dear returned to duty on March 23, 1992 and was assigned to work in the BORCAP office of the Kingsville station. At that time the BORCAP Officer was Cruz McGuire. Agent John Kimmel was also assigned to the BORCAP office. However, when Agent Dear arrived, Agent Kimmel was transferred back to the checkpoint. At the same time, another injured employee, Jerry Welsh, was also assigned to BORCAP. Agent Welsh stayed a few weeks while he was recovering from a broken bone in his foot. Kathy Sharp also was assigned to the BORCAP office during this time, because she was pregnant. Agent Sharp remained in BORCAP until January of 1993, when she delivered her baby.
In late May of 1992, Agent Dear was sent to the checkpoint where he performed all Border Patrol Agent duties except working the point and responding to sensors. Agent Dear processed aliens and logged aliens, interrogated aliens as to citizenship, conducted investigations for cases and completed morning reports when he was on the evening shift.
In the middle of January of 1993, Agent Dear was reassigned back to BORCAP at the station to replace Kathy Sharp. Senior Patrol Agent David Trevino, who had earlier been assigned to the BORCAP Officer position, was still there, but he left in August of 1993. From August of 1993, until the present, the BORCAP office was staffed only by Agent Dear, who successfully ran the entire operation. Agent Dear, a GS-9, performed all aspects of the GS-11 BORCAP Officer position. During the time that Agent Dear was in charge of the office, he was, on two occasions, assisted for short periods of time by other employees who had sustained injuries. Agent Dear, however, was responsible for the overall operation of the office.
During the entire period of Agent Dear’s tenure in the BORCAP office his accomplishments consisted of the following:
1. streamlined the program to reduce paperwork;
2. started entering all records on computers on Lotus 123;
3. cleared out A files and sent them back to their appropriate District offices;
4. maintained communications with other agencies (District courts, Narcotics Task Forces etc.) to determine which cases were still valid, and, completed records on all cases.
5. made sure all files were updated (some files in there were three years old and had not been updated).
Agent Dear’s performance appraisals during this period of time were AExcellent.@ (See Performance Appraisals attached as EXHIBIT #1). Agent Dear received the rating of AOutstanding@ for the element involving paperwork and record keeping for what he accomplished in BORCAP. Furthermore, Agent Dear was personally told that, under his direction, the BORCAP office was run more efficiently than it had been under any previous GS-11 BORCAP Officer.
B. SEQUENCE OF EVENTS LEADING TO GRIEVANCE
On December, 1993, an announcement was made by David Peter that there would be a change in Alight duty@ and that Alight duty@ would no longer encompass any law enforcement type positions. Peter also stated that there were three such Alight duty@ positions in the Kingsville station. Then on December 20, 1993, it was announced that there would be only two such Alight duty@ positions. On December 29, 1993, the number of available Alight duty@ positions was reduced to one. At this time, in addition to Agent Dear, Agent Ignacio Morales, who had suffered an on the job injury, was also in need of accommodation. The one position offered was that of a clerical assistant to the station secretary. Agents Dear and Morales were told that the position would be available on January 9, 1993 to the agent who had been injured the longest — i.e. George Dear. Agents Dear and Morales were also told that the only other options available to them were to take sick leave or file for workers’ compensation on January 9, 1993.
Agent Dear stated that he believed that it was unfair to place agents in a position of having to fight over what he believed to be an improper assignment. He further stated that because of the financial disaster he would suffer by accepting the position, he had no choice but to go out on sick leave.
III. COLLECTIVE BARGAINING AGREEMENT
A. VIOLATION OF ARTICLE 20
Article 20 (a) of the collective bargaining agreement states in pertinent part as follows:
Any employee who has been injured or incapacitated and able to perform limited duty will be assigned to such duties that he is able to perform, when such duty is available, until he has recovered from the injury or incapacitation.
The language of the agreement does not establish any parameters as to what types of duties are to be covered by Alimited duty@; nor does it establish any time limit as to how long such Alimited duty@ may be performed. Clearly, the duties performed by Agent Dear in the BORCAP office are Astill available.@ He has performed them efficiently and effectively for a long period of time. For the agency to now force Agent Dear to accept a Amake-work@ job instead of continuing in his present position is not only a violation of this provision of the contract, but a total waste of a valuable resource.
It cannot be disputed that there is an established Apast practice@ of assigning injured employees to perform duties in the BORCAP office. Such assignments were made, as noted above, during Agent Dear’s tenure in that office and have been made since the office was established.
B. VIOLATION OF ARTICLE 3 (G)
Article 3(G) of the collective bargaining agreement states in pertinent part as follows:
The parties recognize that from time to time, during the life of the agreement, the need will arise requiring the change of existing Agency regulations covering personnel policies, practices and/or working conditions not covered by this agreement. The Agency shall present the changes it wishes to make to existing rules, regulations and existing practices to the Union in writing.
By its announcement on December 17, 1993 that the agency would no longer assign law enforcement duties to injured employees, the agency has unilaterally imposed limitations on the language of the collective bargaining agreement (Article 20) and has unilaterally implemented a change in working conditions without notifying the Union in writing as required by Article 3 (G).
IV. ADMINISTRATIVE MANUAL 2224 A. THE AGENCY’S OPTION OF USING SICK LEAVE PRESENTED TO AGENT DEAR IS IN CONFLICT WITH THE ADMINISTRATIVE MANUAL.
The Administrative Manual 2224 at 2224.06 (4) sets forth the requirements for the use and granting of sick leave. Specifically it states that sick leave is Aauthorized for actual incapacitation for duty because of sickness, injury, or pregnancy and confinement…@ It further states that sick leave is only to be granted and approved for these purposes and that sick leave in excess of three days will require a medical certificate.
Agent Dear is not Aactually incapacitated for duty.@ He has been performing useful and valuable work since a month after his injury. To give him the option of going home on sick leave, under these circumstances, would appear to be in direct conflict with the requirements of the Administrative Manual. Yet, given the choice between performing menial clerical tasks and suffering a serious reduction in his income by doing so leaves him no other alternative.
We have the following concerns as to the effect of his choosing this distasteful alternative:
1. Would Agent Dear at some later date be subject to disciplinary action for what appears to be an impropriety?
2. Will Agent Dear be required to get a medical certificate in support of such leave use? If so, how often?
V. CONCLUSION AND REMEDY
Based on the foregoing, it is our contention that the agency’s actions constitute violations of Articles 3(G) and 20 of the collective bargaining agreement as well as Section 2224.06 of Administrative Manual 2224. We are now requesting the following remedy:
1. Allow Agent Dear to continue performing in the BORCAP position;
2. Provide the Union with notice of the intent to change working conditions and the opportunity to negotiate such change.
If the above remedies cannot be granted prior to January 9, 1994, we would also seek restoration of any sick leave that Agent Dear will be forced to use as a result of this new policy.
NBPC/AFGE Local 3307
Juan Mauricio, President NBPC/AFGE Local 3307
Arturo Gutierrez, Southern Regional VP
Patricia T. Nighswander, Executive Director, NBPC
THIRD STEP GRIEVANCE C TERRY NEWMAN
February 14, 1992
Associate Regional Commissioner, Management
7701 N. Stemmons Freeway
Dallas, Texas 75247
Dear Sir or Madam,
In accordance with Article 32, Section E of the Collective Bargaining Agreement, the following constitutes the filing of a Step III grievance on behalf of Border Patrol Agent Terry L. Newman. A copy of the written Step II grievance, as well as the Agency’s response thereto, is attached. The reasons for our dissatisfaction with the Step II response are set forth below:
Initially, the Agency’s confusion concerning the time frames set forth in the Negotiated Grievance procedure will be addressed. In the Step II response, Mr. Musegades asserts that the deadline for presenting the Step II grievance was January 16, 1992. We disagree. Management’s response to the first step of the grievance was received on January 2, 1992. As in all response stages of the Negotiated Grievance Procedure, the date of the reply is excluded when calculating the ensuing deadline. This was the understanding of the parties at the bargaining table when this agreement was negotiated, and has been consistently followed. Thus, the contractually mandated fifteen calendar days for the Step II response in this case began on January 3, 1992, not on January 2, 1992. Day fifteen accordingly fell on January 17, 1992. In any event, this is a moot point herein, as the response was unquestionably filed on January 16, 1992; well within the allowable time limits. Article 32, Section I of the Agreement clearly states that “[s]ervice will be by personal service or Certified Mail – Return Receipt Requested.” [Emphasis added]. The date of service is thus the date it is personally served upon the other party or postmarked.
Moreover, a telefacsimile copy of the grievance was received by the Agency on January 16, 1992. At no time prior to January 16, 1992 has any manager or administrator in the entire Southern Region ever informed the Union that facsimile transmissions were an unacceptable form of communication. The use of facsimile machines to transmit settlement proposals and settlement agreements, written responses to proposed disciplinary actions, requests for extensions of time and a variety of union-related matters has become an established past practice. We submit, therefore, that this assertion of untimeliness is frivolous and without merit.
The Agency was more than adequately notified that a detailed second step grievance had been filed and clearly no prejudice resulted to the Agency from the five days that it took the U.S. Mail to deliver the original document.
The refusal of Mr. Musegades to recognize a duly-designated employee representative is inexcusable. Nothing in the Collective Bargaining Agreement precludes an employee from changing his representative in the middle of a proceeding. The designation of a new representative obviously supersedes any former designation unless specifically stated otherwise.
The Agency’s response on the merits of the grievance is totally unpersuasive. First, the agency would have us believe that Service policy prohibits beards under any conditions. That is simply not true. As pointed out in the Step II grievance, the Officer’s Handbook and the Border Patrol Handbook clearly allow for a waiver of such prohibitions if adequate medical documentation is presented. The Grievant has presented ample medical documentation in support of his medical need to grow a beard. On November 17, 1991 the Grievant submitted documentation from two physicians concerning his affliction with a skin condition known as pseudofolliculitis barbae.
Chief Patrol Agent Musegades’ December 4, 1991 memorandum exceeded the bounds of reasonableness by requesting more information than required by Service policy. Nonetheless, further letters were written by the physicians, emphasizing their expertise in the area of dermatology. On December 10, 1991 the Grievant submitted another letter from his Dermatologist urging the Chief Patrol Agent to reconsider his denial of permission for the grievant to grow a beard. On December 11, 1991 the Grievant provided further medical documentation in support of his medical condition. At no time has the Grievant been told why any of the submitted medical documentation was inadequate. The Step II response made reference to observation by supervisors who are not licensed physicians, nor specialists in the area of dermatology. In effect, an admission was volunteered that such supervisors are practicing medicine without a license, in that they have undertaken to diagnose the medical condition of Border Patrol Agent Terry L. Newman.
For the aforestated reasons, the Union believes that the instant grievance should be sustained. The requested remedies remain as outlined in the Step II grievance.
Arturo G. Gutierrez, Jr.
National Border Patrol Council
1112 Villa Court
Laredo, TX 78041