SYNOPSIS OF THE COLLECTIVE BARGAINING AGREEMENT
[This chapter paraphrases and interprets the language of the current contract. For the precise language of the agreement, refer to the blue-covered contract.]
ARTICLE 1
Recognition
The National Border Patrol Council of the American Federation of Government Employees is the exclusive representative of all bargaining unit employees assigned to Border Patrol Sectors.
ARTICLE 2
Effect of Law and Regulation
[New Article]
This article replaces Article 4B in the previous contract and outlines the effect of laws, regulations, and policies upon the contract.
A. If there is a conflict between provisions of the contract and present or future laws, laws supersede conflicting contract provisions.
B. In case of conflict between provisions of the contract and government-wide or agency rule or regulation (FPM, DOJ Orders, etc.) issued after the effective date of the contract, the contract provisions supersede. (The contract cannot be regulated out of existence).
C. If there is a conflict between provisions of the contract and provisions of Service Orders, policy manuals, etc., regardless of the date of issuance, the contract provisions supersede.
D. The foregoing applies to all understandings or agreements between management and the Union.
ARTICLE 3
Union Relations at the National, Regional and Local Levels
A. Consultations are not formal negotiations. Neither the Service nor the Union is obligated to reach agreement on the issues addressed during consultations. [Revised provision]
B. National Consultations [Revised provision]
$ Held once annually during May (previously twice a year).
$ Agenda 30 days in advance (previously 45 days).
$ 10 additional agenda items allowed on first day of meeting.
$ Meetings last 3 days (previously 5 days).
$ 8 Union representatives on official time (previously 4 representatives).
$ Union representatives travel at government expense.
C. Regional Consultations [Revised provision]
$ Held twice a year C March and September.
$ Agenda submitted 30 days in advance.
$ 10 additional agenda items allowed on first day of meeting.
$ 4 Union representatives on official time (previously 3 representatives).
Note: A 1994 MOU regarding the Regional reorganization entitles the Union to 5 representatives. The Service disagreed. This issue was arbitrated and a decision was issued in favor of the Union.
$ Meetings on 2 days, excluding travel.
$ Union representatives travel at government expense.
D. Sector Consultations [Revised provision]
$ Held quarterly or at the request of either party (previously monthly).
$ No set number of participants.
$ No set duration of meetings.
$ Any understanding reached at Sector meetings shall be recorded, signed by the parties involved, and copies forwarded to the Local President or designee and the Regional Director. Such understanding will remain in effect until amended through negotiations.
E. The Union must notify the Service of the names of its designated representatives at all levels, and of any changes as they occur.
ARTICLE 3A
Impact Bargaining
[New Article]
This article replaces Article 3G in the previous contract and sets up time frames and procedures (ground rules) for bargaining.
A. National level
$ Union must respond with views and concerns within 30 calendar days from receipt of notice of change.
$ At the end of the 30 day period, Union must serve notice of intent to bargain if it wishes to bargain.
$ Union must then present written proposals within 10 calendar days.
$ Negotiations begin the following calendar week.
Note: The Union and the Service have negotiated revisions to this provision that require the parties to confer over the order in which bargaining issues will be addressed. If no agreement is reached, the parties will alternate in the selection of bargaining issues. The revisions also modify the timing of negotiations.
Regional level
$ Union must respond with views and concerns within 15 calendar days from receipt of notice of change.
$ If the Regional Union Vice President requests to negotiate, bargaining will begin within 10 calendar days of the request.
Sector level
$ Union must respond with views and concerns within 10 calendar days from receipt of notice of change.
$ Union and management meet to discuss changes.
$ If no agreement is reached, the Union may request negotiations.
$ Negotiations begin within 5 days after the request.
In the absence of timely Union proposals, management has no obligation to enter into negotiations.
Agreements reached at all levels will be recorded in a memorandum of understanding.
B. Negotiation teams at all levels will be authorized an equal number of representatives present on official time. Travel and per diem for such Union representatives will be paid by the Service. [New provision]
C. All negotiations time, including travel to and from meetings, is excludable for AUO and LEA purposes. (The agreement concerning excludability for Law Enforcement Availability Pay is found in the policy concerning that matter, which was negotiated after the contract was signed.) [New provision]
ARTICLE 4
Rights and Obligations
A. The contract does not diminish or impair any rights which would otherwise be available to any employee in the absence of the contract.
B. This section restates 5 U.S.C. ‘ 7106, which grants management the right to:
$ determine the agency=s mission, budget, organization, numbers of employees, and internal security practices, including:
$ hiring, assigning, directing, laying off, and retaining employees in the Service, or suspending, removing, reducing in grade or pay or taking other disciplinary action against such employees;
$ assigning work, making determinations with respect to contracting out, and determining the personnel by which Service operations shall be conducted;
$ with respect to filling positions, making selections for appointment from among properly ranked and certified candidates for promotion, or any other appropriate source;
$ taking whatever actions may be necessary to carry out the Service mission during emergencies.
This section does not prevent the parties from negotiating over the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project or tour of duty, or on the technology, methods and means of performing work.
If the exercise of a reserved management right gives rise to a bargaining obligation, management, upon request of the Union, is required to negotiate over:
$ procedures which management officials of the Service will observe in exercising any authority under this Article.
$ appropriate arrangements for employees adversely affected by the exercise of any authority under this Article by such management officials. [Revised provision]
These latter rights are commonly referred to as Aimpact and implementation@ or Ai & i@ bargaining.
C. No employee may involuntarily be required to become or remain a member of the Union. (By law, allotments for Union dues may not be revoked for a period of one year. Thereafter, the Agency only honors requests for revocation at the beginning of the first full pay period following September 1.)
D. The preceding sections of this Article apply to all supplemental, implementing, subsidiary or informal agreements between the parties.
E. This section covers employees= statutory rights as set forth in 5 U.S.C. ‘ 7102, including the right to:
$ join, form or assist a union or to refrain from any such activity without fear of penalty or reprisal.
Any interference by management with the free exercise of employees= rights could be grounds for a grievance or an unfair labor practice charge. Any interference by the Union with the same rights could also be grounds for an unfair labor practice charge.
$ participate in the management of the Union and act for it in the capacity of a Union representative, including presentation of its views to the officials of the Executive Branch, the Congress, or other appropriate authority.
F. Employees may not be required to participate in recognized savings programs, charitable campaigns for contributions, or other community related programs or efforts.
G. This section sets forth employees= rights to freely communicate concerning Aindividual personnel matters@ with:
1. the Servicing Human Resources Office;
2. the EEO Office or the EEO Officer;
3. a Supervisor or Management official of a higher rank than the employee=s immediate supervisor;
4. EEO Counselors;
5. the appropriate official in the Health and Safety Office.
(This section is an exception to the chain of command.)
H. This section basically states that before the Agency imposes discipline for misconduct which occurred off duty, it must verify the conduct, and there must be a connection (nexus) between the conduct and the employee=s official position. It also prevents the Agency from subjecting employees to harassment or frivolous inquiries. [Revised provision]
Note: This new language is stronger than that contained in the previous contract. The previous language, found at Article 4.J., stated: AThe Agency and the Union agree that the conduct and deportment of employees while on or off duty may result in inquiry or action by the agency only where there is a nexus between that conduct or deportment and the employee’s official position.@
An example of an arbitration decision involving nexus is found at 83 FLRR 1‑1629 (LAIRS 15111): A Detention Officer was suspended for 15 days because he and his wife were arrested for shoplifting. His wife pleaded guilty, but the charges against the employee were dismissed and the records were ordered sealed. (Under the law of that state, records are sealed only when a court concludes that there was not reasonable cause to believe the offense was committed.) The Agency raised the argument that, even without conviction, the grievant=s arrest for shoplifting reflected badly on the Border Patrol because it was a law enforcement agency. The arbitrator did not accept the employer=s argument; finding that there was no nexus.
On the other hand, an arbitrator did find nexus in a case involving a Border Patrol Agent who was living with a woman whose parents were known drug traffickers.
I. The Union has the right to be represented at any formal discussions.
Formal discussions are meetings between one or more management representatives and one or more bargaining unit employees concerning any grievance or personnel policy or practice or condition of employment. [New provision]
ARTICLE 5
Relationship of Agreement to Agency
Policies, Regulations and Practices
A. The Service is obligated to follow the requirements of the Civil Service Reform Act when prescribing regulations relating to personnel policies and practices and working conditions. [Revised provision]
B. The contract has the full force and effect of regulations within the Service, and can only be modified by the passage of legislation, and the issuance of OPM, Department of Justice or Service regulations required by law or other appropriate authorities, or by mutual agreement of the parties. [Revised provision]
C. Even if they are not mentioned in the contract, previous understandings or agreements which have been mutually acceptable to the parties are continued provided they do not conflict with the master agreement.
ARTICLE 6
Status of Employee Representatives
A. The Agency may not restrain, interfere with, coerce, or discriminate against employees in the exercise of their rights to be involved in union activities.
B. The Union may designate a Areasonable number@ of stewards. The Union must keep management informed of the names of its stewards. Stewards Anormally function within their Sector, except in unusual situations@ C in which case the Union pays travel and per diem, but the Service is obligated to grant official time for the travel, as well as for the representational activity. [Revised provision]
C. This section repeats the statutory protection against reprisal for Union activities. It also recognizes the ability of the Service to call Union representatives back to their official duties if there is an Aimmediate need@ for their services.
Note: Such occasions should be rare.
D. The Union is obligated to furnish management with the names of its stewards, and management is obligated to advise new unit employees, or employees transferring between stations, upon entering on duty, of the name of the Local President.
ARTICLE 7
Use of Official Time
A. Local Officials [Revised provision]
1. Reasonable official time will be granted to accredited union representatives to perform the duties of their office which are consistent with the Statute and this contract.
The form the reasonable time will take (block, percentage, number of hours, etc.) and whether a Council Officer may be eligible to use local time in addition to Council time, may be negotiated at the local level.
Local presidents or their designees will normally be released to perform labor relations duties, Asubject to local workload requirements.@ In making this determination, local management must be sensitive to their obligation under Article 6.
2. Participants in a representational activity will be scheduled to be on duty during the activity. [New provision]
3. The Local Union President or designee may be granted up to 2 hours travel time to represent a grievant within the Sector at a worksite where there is no local Union steward.
4. Purposes for which official time may be used:
a. investigation, preparation and representation in regard to:
$ discrimination complaints and appeals
$ informal employee or labor-management complaints
$ unfair labor practice complaints
$ grievances/arbitrations under the negotiated grievance and arbitration procedure
$ statutory appeals
b. preparation and representation of the Union in labor-management meetings.
c. representation at adjustment of grievances, adverse action and EEO matters that affect bargaining unit members.
d. attendance at committee meetings as the designated Union representative(s).
e. review of and response to memoranda, letters and requests from the Employer, as well as review and dissemination of instructions, manuals, and notices which affect personnel policies, practices, or working conditions.
f. preparation for labor-management meetings C Local Presidents or their designees will be granted up to 2 hours time for such purposes prior to each meeting with management.
g. serving as technical advisor or assistant in hearings C limit of one union representative per hearing (for official time purposes).
h. attending hearings or meeting as observer where bargaining unit employee has elected to pursue grievance without Union representation.
Any requests for official time not specified above will be subject to review at the regional level. In that instance, questionable time will be discussed with the submitting Union official. If disagreement remains, payroll records will be adjusted, with notification of the adjustment to the Union official. That action may be grieved beginning at Step 3 of the grievance procedure.
Key points:
$ Official time specified within Article 7.A.4. (a)-(h) is authorized under the contract. These activities are not subject to challenge at any level. However, the amount of time necessary to perform these activities may be questioned by management.
$ Official time for Local officials for purposes other than those specified in Article 7.A.4 may be questioned only at the regional level.
5. Procedures for requesting official time at the local level:
a. When practical, provide advance written notice to management.
b. Management will furnish the form for requesting official time (see Appendix VI). The Union official may assume that the request is granted if no answer is received prior to the time for which the request is made.
c. The Union representative and employee will obtain approval in advance from employee=s supervisor for meeting during duty hours.
B. National Council Officers [Revised provision]
The Council receives a block of 7035 hours per calendar year, to be divided as the Union sees fit, except that the Council President may not use more than 1565 hours per year (75%), and no other officer may use more than 1044 hours per year (50%).
Official time provided by law or other provisions of the contract, as well as time spent in partnership activities, is not charged to the block of 7035 hours. (The exclusion of partnership hours applies to official time agreements at all levels, and is set forth in the National Partnership Agreement.)
Official time use must be requested and approved in advance.
Official time may not be used for internal Union business, such as the solicitation of members.
C. Reporting procedures for official time used by National Council Officers:
1. Within 15 days after the conclusion of each pay period, each Council officer will certify in writing the number of hours spent on Union duties during that pay period, identifying the case and/or types of duties performed, and the hours spent on each. A report must be submitted for each pay period, even if no official time was used.
2. Two decisions will be made as to whether time requested by Council Officers is to be approved:
a. An initial determination will be made by the employee=s supervisor based on workload considerations. If workload permits, the employee will be released. In making this determination, supervisors must be sensitive to the obligations under Article 6. If a response to the request is not received prior to the period for which official time is requested, it will be assumed to be approved.
b. A final determination will be made at Headquarters based on information supplied in the report. The Union supplies the forms to be used. (Although the contract obligates management to supply the forms, the parties subsequently agreed that the Union will supply computer generated forms.) The reports will be submitted to the immediate supervisor, who will forward them promptly, through the chain of command, to Headquarters. Questionable time will be reviewed with the submitting Council Officer. If disagreement remains, the payroll records will be adjusted, with notification of the adjustment to the Union Officer. Grievances over disputed time will be presented to Headquarters for processing through the grievance procedure. [Revised provision]
D. Union representatives shall not suffer any loss of pay, allowances, or other penalty for use of official time. All official time, including travel to and from meetings, will be excludable for AUO and LEA purposes. (The agreement concerning excludability for Law Enforcement Availability Pay is found in the policy concerning that matter, which was negotiated after the contract was signed.) [New provision]
E. Upon request and approval in advance, a reasonable period of LWOP will be granted to Council and Local Officers for carrying out Union-related duties. [Revised provision]
F. Administrative Leave for Union Training: [Revised provision]
1. Training must be designed to advise representatives on matters within the scope of the Civil Service Reform Act which are of mutual concern to the Service and the Union.
$ Sectors with less than 50 employees receive a maximum of 10 man days per Fiscal Year.
$ Sectors with 50-199 employees receive a maximum of 20 man days per Fiscal Year.
$ Sectors with more than 200 employees receive a maximum of 30 man days per Fiscal Year.
$ The Council receives a maximum of 20 man days per Fiscal Year.
2. Training agendas must be submitted 30 calendar days in advance to the appropriate Regional Office. Management must notify the Union of its decision no later than 15 calendar days after receipt of the agenda.
3. Requests for administrative leave must be submitted 30 calendar days in advance, along with a copy of the agenda. Management must notify the Union of its decision no later than 15 calendar days after receipt of the request.
Note: This is a change from the procedures in the previous contract. Under the new contract, the agenda is submitted to the Regional Office, but the request for administrative leave is submitted to the Sector.)
ARTICLE 8
Use of Official Facilities
A. Upon request of the Union and subject to availability, meeting space will be provided by the Service for meetings of the Union during non-duty hours of the employees involved. The Union will exercise reasonable care in using such space and will leave it in a clean and orderly condition.
B. Each Service installation will provide bulletin board space in a place of prominence for posting material published by the local AFGE Local, AFGE National Headquarters, and/or the National Border Patrol Council. The Union is responsible for all matters on the bulletin board and each item placed thereon shall be initialed and dated by a Union official. Literature or notices posted will neither violate any law nor contain libelous material.
C. Official publications of the Union transmitted to an Agency installation shall be posted in a prominent place without delay. Mail drawers are acceptable for this purpose. [New provision]
ARTICLE 9
Identification of Employees in the Unit
A. The Agency will provide the Council President with a list reflecting the name, grade, duty station and position title of all employees in the bargaining unit on a quarterly basis. [Revised provision]
ARTICLE 10
Outside Employment
[New Article]
A. Outside employment, including self-employment, must not result in or create the appearance of a conflict of interest with official duties or with official business of the Service, nor impair the employee=s mental or physical capacity to perform official duties. The employer may not take actions regarding an employee=s outside employment which are Aarbitrary or capricious.@
B. The employee must request permission on Form G-843 (APPENDIX VII).
C. The employee must submit the request 14 calendar days in advance of the proposed commencement of outside employment or business activity.
D. The employer must respond to the request within 8 calendar days, or the employee can assume that the request is granted.
Note: This does not preclude management from later directing the employee to cease the outside employment if there is a valid reason for doing so.
E. Volunteer work is not considered to be outside employment.
ARTICLE 11
Union Representatives on Government Property
National representatives of the Union, Council Officers and Council employees are permitted upon all Agency installations. Such Union representatives shall, whenever possible, give advance notice to the supervisor in charge of the installation of their impending visit. Upon arrival, they shall attempt to advise the supervisor, if available, of their presence. Such representatives shall not interfere with the work of the employees of the installation during duty hours. [Revised provision]
ARTICLE 12
Personnel Manuals
A. The Agency will provide each Sector with an up-to-date copy of the Administrative Manual and the Federal Personnel Manual. It will also ensure that the manuals are reasonably accessible to all employees and the Union.
B. The Agency will also provide the Council President with an up-to-date copy of the Administrative Manual and the Federal Personnel Manual. [Revised provision] Note: Most of the Federal Personnel Manual has been abolished.
ARTICLE 13
Dues Withholding
A. The Union and the Service will maintain a system for voluntary allotment of membership dues for employees.
B. The agreement concerning dues withholding is contained in Appendix 1.
ARTICLE 14
Leave
A. Annual leave is a right of the employee and not a privilege. Supervisors are responsible for ensuring that employees do not forfeit annual leave.
B. The Service must make every effort to schedule workloads and annual leave in a manner which permits each employee, if they wish, to schedule at least three (3) consecutive weeks of accrued annual leave each year. [Revised provision]
C. Employees are responsible for planning for and submitting timely requests for annual leave. Leave schedules must be posted in a conspicuous place in each facility no later than February 15 of each calendar year. Employees who do not request leave by February 15 will be allowed to take leave at a later date, provided it does not interfere with annual leave scheduled or the needs of the Service. Requests for annual leave of five (5) days or less need not be included in the annual leave schedule provided all five (5) days are within one administrative workweek.
D. When it is impracticable to grant all requests for annual leave for a given period, the supervisor shall give consideration to the following factors:
(1) Amount of leave to employee=s credit.
(2) Seniority: (For the purpose of this Article seniority is defined as the length of INS service commencing with the first day of employment).
(3) Whether employees have children of school age and cannot benefit from vacations taken when their children are in school.
(4) Whether employee was able to take leave at desired time during previous scheduling period.
Once approved, annual leave will not normally be canceled. When annual leave is scheduled in advance, it may only be canceled for Aexigencies of the Service=s business.@ Before canceling leave, the Service must make a reasonable effort to take other action. [Revised provision]
E. Any employee-initiated change in approved vacation schedule cannot be made without the concurrence of all employees whose vacation schedule would be affected by the change.
F. Employees may be allowed to report for work three hours after the voting polls open or to leave work three hours before the polls close (whichever requires the least time off) if the polls are not open at least three hours either before or after an employee=s hours of duty. In exceptional circumstances, an employee may be excused for such additional time necessary to vote, but not to exceed a full day.
G. Permanent employees will be granted necessary time off without charge to leave or loss to pay to serve as a juror, or as a witness on behalf of the United States, a state or municipality when officially required to appear.
H. For sick leave periods of three consecutive workdays or less, employees shall not be required to submit form SF-71 unless there is Areasonable evidence of abuse.@ Sick leave in excess of three days shall be reported on form SF-71, including a medical certificate or a statement of the nature of the illness and why a medical certificate is not furnished.
I. When administrative leave is granted in the case of inclement weather or other conditions which warrant such leave, management will notify all employees on duty. They shall also make a reasonable effort to notify employees who have not yet reported to duty that administrative leave has been granted.
If hazardous weather or emergency conditions existing within the employee=s normal commuting area prevent an employee from reporting to work, and the post of duty is not closed, an employee can be granted administrative leave for the day, or that part of a day, during which such conditions prevented the employee from reporting to work. To qualify for leave under this subsection, the employee must provide the employer with evidence that he or she made every reasonable effort to report to work, but that such conditions prevented him or her from doing so. [Revised provision].
J. A male employee may be granted annual leave or, if annual leave is exhausted, leave without pay (up to 14 calendar days) for the purpose of aiding, assisting or caring for his wife or minor children while his wife is incapacitated for maternity reasons.
K. Annual leave or sick leave balances will not be factors for promotion. However, evidence of leave abuse may be used as an aid in determining reliability of an employee and/or his or her physical ability to perform the duties of a position.
L. Administrative leave of no more than four workdays may be granted to arrange for, prepare, and transfer to a new duty post. [New provision].
ARTICLE 15
Development and Training
A. Consistent with the needs of the Service, the Union and management will seek the maximum training and development of all employees.
B. Employees are encouraged to take advantage of training and educational opportunities to increase their proficiency in the performance of their duties and for possible advancement in the Service.
C. The nomination of employees to participate in training and career development programs and courses shall be based on Service needs but will be free of personal favoritism.
D. Employees may be granted variations within the normal workweek, including leave without pay, for educational purposes consistent with Service needs.
E. The Service agrees to provide lists and catalogs on available Service training.
F. The Service will provide appropriate training for trainees.
G. The Service will maintain records for all employees who receive Service training. [Revised provision]
H. Consideration will be given to filling electronics technician=s vacancies at the trainee level where Service candidates are not qualified for journeyman positions.
I. The Service encourages the Union to submit recommendations to the Commissioner or the Regional Directors concerning employee training needs and programs.
J. Appendix III and Appendix IV contain agreements relating to BORTAC and Pilot Training. [New provision]
K The Service will provide refresher or advanced training in accordance with its policies. [New provision]
ARTICLE 16
Classification
A. The Service will consider the Union=s views regarding occupational classification standards and will notify the Union of any action taken on those concerns.
B. Classification decisions that have the effect of establishing a new grade level within an occupation will be forwarded to all Regions and considered in the subsequent classification of positions throughout the Agency.
C. When the employee designates the Union as the employee=s representative in a classification appeal the representative may discuss the classification appeal with the classifier prior to the beginning of a desk audit. Sufficient time shall be allowed prior to the beginning of the desk audit for the designated representative and the classifier to arrange a mutually agreeable meeting date to discuss the classification appeal. The classifier will summarize his or her findings for the appellant and the Union representative.
D. Desk audits of field positions will be conducted periodically by Headquarters and Regional Classifiers. Notice of visits by classifiers will be posted as far in advance as possible on the bulletin board of the station they intend to visit. [Revised provision]
E. Every employee of the Service will be provided with an accurate description of the duties which may govern his or her grade. The employee will be encouraged to discuss any changes or inaccuracies with the supervisor who will also maintain a continuing review of duties.
F. Procedures for questioning information in position description:
$ Employees are entitled to discuss questions about their position description with their supervisor.
$ Upon request, employees are entitled to have a Union representative present during this discussion.
$ Employees may pursue the question further by forwarding a written request to the Servicing Human Resources Office.
$ The Servicing Human Resources Office will either answer, or acknowledge receipt of, the request in writing within 30 calendar days, providing an estimate of the additional time needed to reply.
G. Except where the Agency would be impeded in carrying out its overall law enforcement mission, duties not specified in an employee=s position description, or reasonably related thereto, will be avoided unless temporarily required by the needs of the Agency.
H. $ Details to other activities or to higher graded positions for fifteen (15) consecutive workdays or more will be documented by memorandum to the employee with a copy to his or her official personnel folder.
$ The Service will not use details to avoid filling positions at a higher grade level, nor will they be made on the basis of personal favoritism.
$ If the requirements of the Service necessitate an employee=s being detailed to a lower position, this will in no way adversely affect the employee=s salary, classification, or job standing.
$ If a detail of more than 60 calendar days is made to a higher grade position, or to a position with known promotion potential, it must be made under competitive promotion procedures.
$ If an employee alleges that a detail violates FPM regulations or this agreement, he or she may file a grievance under the negotiated grievance procedure.
ARTICLE 17
Health and Safety
A. The Service agrees to provide safe and healthful working conditions, taking into account the mission of the Service and the inherent hazards of the job performed.
B. A joint Union-Management Safety and Health Committee will be maintained in each Sector. It shall be composed of at least one representative of Management and one representative of the Union. The Union representative shall be selected by the Union.
The Committee shall:
1. Meet as often as necessary upon request of either party;
2. Make inspections of the facilities annually;
3. Make recommendations to the appropriate management official for the correction of unsafe or harmful conditions and the elimination of unsafe or harmful work practices;
4. Promote health and safety education; and
5. Make recommendations for awards relating to safety which will be forwarded through official channels to the appropriate offices for action.
The names, duty stations and telephone numbers of the joint Safety and Health Committee will be posted on all official bulletin boards. [Revised provision]
C. Members of the Committee, upon request and with the approval of the designated management official, shall be allowed to leave their work, for the purpose of performing their duties as outlined in this Article, without loss of pay or charge to leave.
D. Employees should report unsafe work practices and conditions in writing to a member of the Union-Management Safety and Health Committee.
1. $ The Committee shall meet within seven calendar days of notification that a question has arisen.
$ The Committee shall issue its recommendations in writing to the designated local management official no later than fourteen calendar days after their meeting.
$ It shall be the responsibility of both parties to insure the availability of the committee representative within the stated time limits.
$ In the event that the members of the Committee do not agree on the recommendations, any of the members shall have the right to express a written minority view.
2. The Service shall render a written decision or an interim within 14 calendar days after receipt of the Committee=s recommendations. [Revised provision]
E. In the case of identical grievances on Safety issues arising under this section, involving two or more Sectors, subject to the consent of the employees involved, one safety grievance shall be selected by the Union for processing. All decisions for that grievance will be binding on the other safety grievances.
F. Service policy prohibits the use of vehicles not in safe operating condition. Negligence in reporting vehicle damages may be grounds for disciplinary action being taken against the responsible operator. [Revised provision]
G. When an employee believes he or she is being required to work under conditions which are unsafe or unhealthy beyond normal hazards inherent in the operation in question, he or she shall refer the matter to his or her supervisor. The supervisor will make an evaluation of the working conditions, and direct that the work either be continued or stopped. [Revised provision]
Note: An exception to the Awork now C grieve later@ rule occurs in cases where an employee reasonably believes that obeying a particular order would subject the employee to serious injury or death.
H. Copies of reports furnished to the Department of Labor in compliance with E.O. 12196, AOccupational Safety and Health Program for Federal Employees@ will be available to the Union.
I. To the maximum extent possible, employees assigned to duties in an office should be accorded an uninterrupted lunch period between the third and fifth hours of duty where lunch periods are customarily taken. The Service shall provide clean and healthful lunch rooms, at offices where lunch facilities are available, for the consumption of food.
ARTICLE 18
Injury Compensation
A. $ Upon request, employees injured on the job will be promptly counseled by trained personnel as to their right to file for compensation benefits and the benefits payable.
$ The employee also shall be advised as soon as possible that, when traumatic injury leave has been exhausted, compensation benefits can be used in lieu of sick or annual leave.
$ The agency will give appropriate assistance to the employee in filing a compensation claim.
B. $ Injury compensation cannot be paid for any period when an employee is on paid leave.
$ If, when traumatic injury leave (COP) has been exhausted, the injured employee has sick or annual leave to his or her credit, he or she may decide whether to use all or part of it before applying for injury compensation (OWCP benefits).
$ If the employee should be charged for sick or annual leave (or if he or she is so charged because he or she was not informed of the possibility of injury compensation benefits), he or she may repay in a lump-sum or by any other plan acceptable to his or her payroll office, the amount collected while on annual or sick leave. This repayment would permit him or her to qualify for injury compensation provided all other conditions are met.
C. Employees will be permitted to review documents relating to their claim which the Office of Workers= Compensation and Servicing Human Resources Office have authorized to make available. Employees may be accompanied by their designated representative if they so desire.
ARTICLE 19
Fitness for Duty Examination
A. In directing employees to undergo a fitness for duty examination, the Agency will observe applicable rules and regulations.
B. Employees will be advised of their right to have a Union representative at any time allowed, or not prohibited, by OPM procedures.
ARTICLE 20
Disabled Employees
A. Key points:
$ With regard to limited (light) duty assignments, the injury or illness does not have to occur on duty.
$ There is no time limit on limited (light) duty.
$ Management is not obligated to create limited (light) duty work, but if it is available, it must assign such duty.
$ Limited (light) duty does not affect eligibility for promotion.
B. Restoration to duty for compensable injuries or illnesses if recovery is within one year:
$ If employee meets the physical requirements of the position, he or she will be restored to duty in the former or an equivalent position. (5 U.S.C. ‘ 8151 and 5 C.F.R. ‘ 353.307 et seq.) [Revised provision]
C. Restoration to duty for compensable injuries or illnesses if recovery takes more than one year:
$ The Service shall make all reasonable efforts to place, and accord priority to placing, the employee in his or her former or equivalent position. (5 U.S.C. ‘ 8151 and 5 C.F.R. ‘ 353.307 et seq.) [Revised provision]
ARTICLE 21
Personnel Files
A. No derogatory material of any nature will be placed in an employee=s Official Personnel File (OPF) or Employee Performance File (EPF) without their knowledge.
Supervisors must discuss employee work performance or work deficiencies with employees on a timely basis. [Revised provision]
B. Access to OPF, EPF, position description and classification standards:
$ Request must be made by the employee in writing.
$ Records will be released to employee or representative for information in the processing of any complaint, grievance, adverse action or allegation of discrimination.
$ Records will be made available as soon as possible for review in the office of a supervisory official of the Service during the normal business hours of that office.
$ The Service will assist in making photocopies of records.
$ When the Union is designated to represent an employee, it will furnish the name and address of the representative to the Service in writing and copies of all correspondence addressed to the employee will be furnished to the representative.
C. Records that are maintained in an Administrative Center will be promptly forwarded to the Chief Patrol Agent and appropriate arrangements for review will be made by him or her.
ARTICLE 22
Equal Employment Opportunity
A. The Service and the Union agree to cooperate in providing equal employment opportunity for all qualified persons.
Each Sector will have an EEO committee with Service representatives and one Union representative. All representatives will be working members of the Committee with the same rights and responsibilities as the other members. EEO committees will meet quarterly during duty hours and in duty status.
B. The Service and the Union will support and strive for the realization of the following listed EEO programs:
1. A more balanced representation of minority groups and women in Officer Corps positions.
2. Upward Mobility of clerical and other support personnel into occupations with greater career advancement potential as identified by the Service.
C. The Service and the Union agree that the upward mobility and career programs are of paramount importance.
D. The Service will furnish the Union with two copies of the semi-annual statistical EEO reports sent to the OPM. The Service will brief Regional and Sector representatives on the status of local EEO programs at the Regional and Sector meetings held in accordance with Article 3 of the contract. [Revised provision]
E. At least 50% of the EEO Counselors will be appointed and trained from the bargaining unit. (Although the Service retains the right to change this practice, it must notify the Union in accordance with the contract and bargain to the fullest extent required by law if it elects to do so.) [Revised provision]
F. The Service will furnish the Union with an annual summary of the number and types of discrimination complaints received.
G. If corrective or remedial action resulting from adjudicatory procedures would appear to conflict with a provision of a negotiated agreement, management must provide the Union with reasonable notice and the opportunity to bargain to the fullest extent required by law. To the maximum extent permitted by law, the agency must maintain the status quo until its collective bargaining obligations have been fully satisfied. [Revised provision]
ARTICLE 23
Reduction in Force, Transfer of Function, Reorganization
A. Reductions-in-force, transfers of function, or reorganizations will be conducted in accordance with the provision of this Article. [Revised provision]
B. Definitions:
1. Reduction-in-force (RIF) means the release of employees from their competitive level by separation, demotion, furlough for more than 30 days, or reassignment requiring displacement; when lack of work or funds, reorganization, reclassification due to change in duties, or the need to place a person exercising re-employment or restoration rights requires the Service to release the employee.
2. Transfer of function (TOF) means the transfer of the performance of a continuing function from one competitive area and its addition to one or more other competitive areas, or the movement of the competitive area in which the function is performed to another commuting area.
3. Reorganization means the planned elimination, addition, or redistribution of functions or duties in an organization.
C. The Council will receive at least thirty (30) days advance notice of any pending RIF, TOF, or reorganization prior to the official notification of employees. This written notice will include the reasons for the action, the approximate number and types of positions affected, the approximate date of the action, and an invitation to the Union to a meeting conducted by the Service to explain the action, and answer relevant questions.
D. The Service will attempt to minimize actions that adversely affect employees which often follow a RIF by using, to the extent feasible, attrition to accomplish reductions. All RIFs will comply with applicable laws and regulations.
E. The Service agrees to provide affected employees as much advance notice of RIF or TOF or reorganization as is administratively possible, but in no case will such notice be less than 30 calendar days. All such notices shall contain the information required by OPM regulations. When a general notice is issued to employees, a specific notice will be given the employee not less than 5 calendar days preceding the effective date of the action.
F. All RIFs, TOFs and reorganizations will be carried out in compliance with laws. Any alleged violation of applicable laws and regulations will be subject to review under the negotiated grievance procedure beginning at Step 3.
Employees who allege a violation of a prohibited personnel practice under Section 2302(b)(1) of Title 5, U.S. Code may elect either to appeal to the Merit Systems Protection Board or under the negotiated grievance procedure, but not both. [Revised provision]
G. Employees receiving a reduction-in-force notice have the right to review retention lists pertaining to all positions for which they are qualified. This includes the retention register for their competitive level and those for other positions for which they are qualified, down to and including those in the same or equivalent grade at the position offered by the Service. If separation occurs, this includes all positions equal to or below the grade level of their current positions. Affected employees shall have the right to the assistance of the Union when reviewing such lists or records.
H. Affected employees shall have a minimum of 5 calendar days in which to accept or reject, in writing, an offer of another position. Failure of employees to respond, in writing, to the offer within the time limits will be considered a rejection of the offer.
I. The Service must:
1. inform employees of plans for the transfer of function and the governing regulations after a decision has been made;
2. notify the employee of the proposed plan, in writing, so that the employee will be able to consider the action and give a reasonable answer. Where the transfer of function is to another commuting area, the employee shall have not less than 30 calendar days to accept or reject the position offered;
3. assist and counsel affected employees in seeking placement opportunities with other Federal Agencies or elsewhere in the community;
4. counsel employees on individual rights relating to such matters as retirement and severance pay.
J. In the event career or career-conditional employees are separated by reduction-in-force, the Service will refer these names to the Department of Justice for inclusion on the appropriate reemployment priority list in accordance with governing regulations. Employees will be given preference for reemployment consistent with governing regulations. The Service will provide affected employees information regarding employment possibilities with other Government agencies, retirement, severance pay, and other benefits available to them. [Revised provision]
K. If, as a result of a RIF or a TOF, an employee is reassigned to a new position, the Service agrees to comply with all applicable laws and regulations requiring that it provide employees a fair opportunity to attain satisfactory performance. [Revised provision]
L. When technological changes affect the classifications, or status, of positions covered by this agreement, the Service will meet with the Union to discuss these changes. The Service will attempt to minimize the adverse impact of these changes by using attrition and reassignment.
M. In the event of a TOF or reorganization of Service activity to another government entity, the Service will solicit the cooperation of the gaining agency in explaining the ramifications of such a change to the Union.
N. Nothing in this Article shall be interpreted as a waiver of the Union=s right to initiate bargaining over impact and implementation, as provided for by 5 U.S.C. 7106(b)(2) & (3), on any proposed reduction-in-force, transfer of function or reorganization. Absent mutual agreement to do so, no such bargaining will include reopening the provisions of this Article. [New provision].
ARTICLE 24
Acceptable Level of Competence
This Article sets forth procedures concerning determinations that an employee=s work is not at an acceptable level of competence, basically requiring the Agency to follow all applicable statutes and regulations in effect at the time of the negative determination. [Revised provision]
ARTICLE 25
Uniforms
A. Determinations regarding which employees will wear a uniform and when, where, and under what circumstances the uniform or uniforms determined to be appropriate will be worn are rights reserved to management. [New provision]
B. Employees are only authorized to wear uniform items officially approved by Service headquarters. The employer must maintain listings of the officially approved items within each Sector, and must maintain a uniform program under which agents may obtain uniform items either through payment of a uniform allowance or, at the discretion of the employer, through a voucher system. [New provision]
C. The agency must notify and discuss all proposed changes to the uniform with the Union prior to implementation.
D. Agents on detail (TDY) shall only be required to have either the rough duty or dress uniform (in addition to appropriate clothing for plain clothes duty) unless the Service definitely knows that three types of clothing will be required.
E. Unless otherwise determined by the agency, uniformed personnel will be required to wear name plates with their initial and last name.
F. The Sam Browne Shoulder Strap is not part of the uniform for non-Supervisory Border Patrol Agents.
G. Basic uniform allowance: [New provision]
1. First year of employment: Sufficient to purchase the required minimum number of uniform items required by Service policy. The initial uniform purchase shall consist of only those items required for training at the Border Patrol Academy. The balance of the basic allowance may be used to purchase those items needed for graduation from the Border Patrol Academy and all other items required by Service policy during the first year of employment.
2. Second and subsequent years of employment: Maximum amount allowable under law.
H. In the event the Employer is not legally able to pay the uniform allowance in Section G, the Employer will furnish the employees any and all uniform items the employees may be required to wear. [New provision]
I. Local management will determine the periods of time, the tours of duty, and assignments during which the summer or winter uniform will be worn. [New provision]
ARTICLE 26
Travel and Per Diem
A. Travel or any extension thereof will, to the maximum extent possible, be authorized or ordered in advance in sufficient time for the employee to have in his or her possession a travel advance prior to starting such travel.
B. The Service must make every effort to avoid requiring employees to perform continuous automobile travel for more than eight hours in any work day or to travel on assigned days off.
C. The sole purpose of a travel advance is to provide the employee with funds to sustain himself or herself when performing official travel. Travel will be authorized to the maximum extent possible in sufficient time for the employee to have in his or her possession a travel advance. The travel advance shall be returned promptly upon cancellation or indefinite postponement of the travel for which the advance was made. [New provision]
D. It is the responsibility of a traveler to submit a travel voucher in accordance with the contract, and to return any excess of the travel advance over reimbursable travel expenses concurrently with the voucher. [New provision]
E. Travelers are required to submit travel vouchers within five (5) work days after completion of travel or each thirty (30) days, whichever occurs first, exclusive of full days on emergency work assignments, leave, or union related duties. In no event will more than seven (7) calendar days be excluded for union related duties. [New provision]
F. When an employee has not submitted a travel voucher within the above time limits, the employee=s immediate supervisor shall discuss the matter with the employee in order to ascertain why the voucher has not been completed. Absent the exceptions noted above or other good and sufficient cause, the supervisor will direct the employee to submit a voucher in not less than four (4) calendar days after the required discussion with the employee takes place.
Preparation and submission of vouchers shall not be delayed for lack of sufficient receipts. A reclaim or supplemental voucher shall be submitted when the traveler has obtained the necessary receipts not available when the initial voucher was filed. [New provision]
G. If a dispute exists as to the propriety of an expense claimed on a voucher, any excess of a travel advance over the undisputed portion of the claim will be collected from the employee or withheld from the employee=s salary pending resolution. [New provision]
H. If an employee is not reimbursed for properly claimed expenses within twenty (20) work days after filing his or her travel voucher, he or she may request, through supervisory channels, that the processing of the voucher be expedited. If an employee=s Government credit card account becomes delinquent because the Service failed to process a voucher in a timely manner, the Service will expedite the processing of the voucher and will contact the credit card contractor and explain that the employee is not at fault. [New provision]
I. Absent emergency circumstances, supervisors will allow sufficient time during regularly scheduled tours of duty for preparation of travel vouchers. [New provision]
J. The recovery of outstanding cash travel advances shall be accomplished in accordance with the provisions of Appendix V. [New provision]
K. No disciplinary action may be taken for failure to submit a travel voucher or repay a travel advance until all procedures of this Article have been exhausted and the employee has been notified in writing that failure to comply may result in disciplinary action. However, disciplinary action may be taken for insubordination if an employee fails to respond to direction by his or her supervisor, in accordance with Section F of this agreement, to prepare and submit a travel voucher. [New provision]
L. Disputes over the interpretation and application of this Article may be presented under the grievance procedure in Article 33 of the Agreement. [New provision]
M. Disputes over what expenses are reimbursable may only be grieved or appealed by presenting such claim in the following steps:
1. An appeal will be sent to the appropriate Administrative Center Finance Director.
2. If the employee has not received a determination within thirty days, or the employee is dissatisfied with the decision of the Administrative Center Finance Director, the employee may then submit the claim (no specific format) to the: Claims Group, Financial and General Management Studies Division, U.S. General Accounting Office, 441 G Street, NW, Washington, D.C. [New provision]
N. The Service agrees that for operational details requiring advance planning, as much advance notice as possible will be given to employees selected for the detail.
O. Except for training courses, details away from the normal duty station will not exceed 35 calendar days, unless the employee volunteers for a longer period.
ARTICLE 27
Overtime C Other Than Uncontrollable Overtime
A. Overtime assignments will be distributed and rotated equitably among eligible employees. Supervisors shall not assign overtime work to employees as a reward or a penalty, but solely in accordance with the Service=s need. Complaints or disagreements on distribution of overtime may be grieved. The Service must maintain related records and make them available to employees or their representatives upon request. [Revised provision]
B. All employees in an overtime status will perform the duties of the position to which assigned. They will wear the necessary uniform and identification that the duties of the position require.
C. To the extent that local conditions warrant and space and resources are available, the Service agrees to provide suitable space for changing uniforms and lockers for storage of employee uniforms.
ARTICLE 28
Tours of Duty
A. Management retains the right to establish, maintain, and change shifts, tours of duty and hours of work to best promote the efficient and effective accomplishment of the mission and operations of the Service. [Revised provision]
B. Assignment to tours of duty shall be posted five days in advance in the appropriate work area covering at least a two week period.
C. Except in an emergency, the Agency agrees to schedule eight (8) hours between changes in shifts, and when practical will schedule more time between shifts.
D. The Service agrees that it will attempt to assign consecutive days off duty consistent with the Service=s mission. [Revised provision]
E. The Administrative workweek shall be seven consecutive days, Sunday through Saturday.
F. Breaks in working hours of more than one hour shall not normally be scheduled in any basic workday.
G. When practical, an employee shall be given at least 24 hours advance notice of individual shift changes. Individuals involved in a change of shift should be notified of the reason for the change. [Revised provision]
H. Any employee may retain a carbon copy of his or her time and attendance form and/or time and activity report if he or she so desires.
Note: This includes photocopies.
I. Where mutually agreeable to all employees affected, and approved by the supervisor, employees may trade shifts out of the normal rotation. The supervisor will not unreasonably withhold approval of a request to trade shifts. [Revised provision]
J. The basic non-overtime workday shall not exceed eight (8) hours. [New provision]
ARTICLE 29
Grooming and Personal Appearance
[New Article]
A. The Service retains the right to establish reasonable grooming standards for all employees, but must bargain over the standards. Any grooming standards established for uniformed officers must be designed to promote their image as professional law enforcement officers.
B. Grooming standards must be consistently and fairly applied.
C. The Union reserves the right to grieve and arbitrate the validity of any grooming standards established unilaterally by the Service. In ruling upon any such grievance, the Arbitrator shall be guided by the principles contained in this Article.
The application of the grooming standards is also subject to the grievance procedure, including arbitration.
D. $ Head and facial hair, including sideburns and moustaches, shall be neatly trimmed and clean, and shall neither interfere with the wearing of the required uniform nor constitute a safety hazard or an impediment to the employee=s ability to properly perform his or her assigned duties.
$ Beards shall not be permitted, except for medical and religious reasons.
A medically diagnosed condition of pseudofolliculitis barbae (razor bumps) is considered a medical reason allowing the growing of a beard. Agency non-medical personnel do not have authority to override a medical diagnosis. (NBPC/AFGE Local 1929 and El Paso Border Patrol Sector).
$ Hair will not be worn below the outer portion of the shirt collar, nor completely cover the ears, nor cover any portion of the eyebrows.
The Service bears the burden of demonstrating that a particular employee=s grooming violates the established standards.
ARTICLE 30
Equal Pay for Equal Work
The Agency and the Union agree to the principle of equal pay for equal work as set forth in 5 U.S.C. ‘ 2301(a)(3). The Agency shall cooperate fully in processing alleged violations of this law under any applicable procedures which may be provided by law or regulation. [Revised provision]
ARTICLE 31
Formal Meetings and Investigative Interviews
[New Article]
A. The Union is entitled to be represented at any formal discussion.
A formal discussion is a meeting between one or more representatives of the Service and one or more employees in the unit or their representatives concerning:
$ any grievance,
$ any personnel policy or practice,
$ other general conditions of employment.
Union rights at formal discussions:
$ right to reasonable advance notice of meeting,
$ right to determine who will represent Union at meeting,
$ right of Union representative to participate in the meeting.
B. 1. The Union has the right to be represented at any examination of an employee in the unit by a representative of the Service if:
a. the employee reasonably believes that the examination may result in disciplinary action against the employee; and
b. the employee requests representation.
Key points:
$ Both of the foregoing conditions must be met in order to entitle the Union to be represented at the examination.
$ An Aexamination@ is any type of investigative interview, and can either be oral or written, such as a requirement to write a memorandum.
2. Management must advise employees of this right annually and must post the annual notice throughout the year on bulletin boards where notices for employees are normally posted.
Note: Management must post this notice on a bulletin board other than that reserved for Union use. (In addition to this requirement, the Union is free to post the notice on the bulletin board reserved for it use.)
3. Key points:
$ The Service must advise an employee in writing of his or her right to be represented by the Union:
$ Before requiring any written or sworn statement (including a memorandum) from the employee.
$ Before interrogating an employee before witnesses if it might lead to disciplinary action.
$ This right is in addition to the annual notice.
$ Failure to obtain representation will not delay an interrogation by more than 48 hours from the time the employee receives notice of the interrogation unless the representative must travel more than 100 miles to represent the employee, in which case a reasonable extension of time will be granted.
$ The employee and the Union will promptly designate the representative and make reasonable efforts to minimize delays.
C. Normally, an employee who is a witness in an investigation is not entitled to Union representation; however, an employee who is requested to give information concerning another person and who refuses to do so voluntarily will be entitled to representation upon request if he or she reasonably believes that the examination may result in discipline against him or her.
D. 1. Any guarantee of administrative immunity offered to induce the employee to submit to interrogation will be bona fide and in writing, with a copy provided to the employee and his or her representative.
2. No official of the Service is authorized to grant criminal immunity; this is a matter that is totally within the control of the appropriate Division within the Department of Justice. Service officials may inform employees that they are required to answer questions about a matter because the U.S. Attorney has declined criminal prosecution. In all such cases, no information gathered during the interrogation may be used against the employee in a criminal proceeding.
E. Investigative interviews undertaken on behalf of the Service may be conducted at any reasonable hour. However, investigators will make reasonable efforts to consider such factors as employee fatigue and schedules of designated representatives when scheduling interviews. Nonetheless, where an employee is directed to appear for an interview, all hours spent in the interview shall be compensated at an appropriate rate.
F. Where an employee is asked to certify to the correctness of a transcript of a prior investigative interview, he or she shall be afforded upon request the opportunity to review any recording of the interview by arrangements with appropriate management.
ARTICLE 32
Disciplinary and Adverse Actions
A. Key points:
$ When an employee designates the Union as his or her representative in a disciplinary or adverse action, the employee must fill out the appropriate form (Appendix VIII).
$ Information and documents which are not releasable will not be used in taking a disciplinary or adverse action.
$ If time and distance are factors in the designation and authorization, it may be furnished to the local supervisor in writing and that supervisor may attest to its authenticity by telephone to the releasing official. [Revised provision]
B. When the Union is not designated as the representative in a disciplinary or adverse action, it will be furnished with sanitized copies of the notice of proposed action, final actions taken, and decisions on any subsequent appeals (except that published decisions of adjudicating bodies need not be sanitized). (Sanitized copies are copies from which all identifying information (for example, name and social security number) has been removed. Copies furnished shall identify the issuing Sector, but information identifying lower organizational levels will be deleted.) The Union will provide the Service with a list of representatives designated to receive such notices. [Revised provision]
C. Disciplinary actions covered by the provisions of this Article are:
$ written reprimands,
$ suspensions of 14 calendar days or less,
$ disciplinary transfers (any dispute concerning the disciplinary nature of an action involving relocation of an employee may be referred as a threshold issue in an arbitration). [Revised provision]
Note: The procedures set forth at section D do not apply to transfer actions. However, these matters may be taken to arbitration through other means.
E. Adverse actions are:
$ removals,
$ suspensions for more than 14 calendar days,
$ reductions in grade or pay,
$ furloughs of thirty days or less. [New provision]
D/F. An employee against whom a disciplinary or adverse action is proposed is entitled to:
1. advance written notice stating the specific reasons for the proposed action;
$ This notice must be at least 10 calendar days in disciplinary action cases and at least 30 calendar days in adverse action cases, unless there is a reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed.
$ In such cases, the employee is entitled to at least 7 days advance written notice with the specific reasons for the belief that a sentence of imprisonment may be imposed.
2. a 10 day response period, extended for good cause, to answer the notice orally and/or in writing, and to furnish affidavits and other documentary evidence in support of the answer; if an oral reply is made, the employee and representative will normally be present; however an employee may be represented by the representative alone for valid medical reasons;
3. upon request, a copy of the material relating to the proposed action, regardless of whether relied upon in the proposed action;
4. be represented by an attorney or other representative;
5. a formal written decision, and the specific reasons therefor, by an official other than the official who proposed the action. The deciding official will consider only the reasons specified in the notice and the material in the investigatory and disciplinary files, and shall consider any answer of the employee and his or her representative. [New provision]
G. The employer shall furnish employees with notices of proposed disciplinary/adverse actions at the earliest practicable date after the alleged offense has been committed and made known to the employer. It is understood criminal investigations outside the control of the employer may be prolonged; in such cases, the employer shall furnish notice at the earliest practicable date after the employer has obtained control over the matter under investigation. [Revised provision]
H. Where investigations have been unduly prolonged because they are not within the administrative control of the employer, a reasonable extension of the response period to the proposed disciplinary or adverse action will be granted by the Employer, upon the request of the employee or his or her representative. In addition, except where time limits are provided by law or applicable government-wide regulation, time limits in this Article will be extended for good cause. [Revised provision]
I. An employee who is dissatisfied with the decision on any disciplinary or adverse action may file a grievance under (1) or (2) below. Removals, suspensions for more than fourteen (14) days, reduction in grade or pay, and furloughs for thirty (30) days or less are also appealable to the Merit Systems Protection Board. An employee cannot file both a grievance and an appeal with the MSPB. Once an employee files a written grievance, or a timely MSPB appeal, he or she may not pursue the other procedure.
1. In the case of an official reprimand, the grievance processing shall begin with Step 2 in Article 33 (Grievance Procedure) of this Agreement and continue through successive steps.
2. In the case of a suspension of fourteen (14) days or less, disciplinary transfer, or an adverse action, the employee may request the Local to pursue the grievance without intervening steps, through arbitration procedures in Article 34 (Arbitration) of this Agreement. The Service=s Notice of Decision shall represent the Service=s final decision referred to in Section A of Article 34 (Arbitration). [Revised provision]
J. Any disciplinary or adverse action which is later found to have been unwarranted shall be removed from the official file of the employee and destroyed and the employee so notified in writing. [Revised provision]
K. No record of a complaint, determined to be unfounded, will be placed in the employee=s Official Personnel Folder. Such complaint may, in the interest of the employee and the Service, be maintained in a subject file but will not under any circumstances be considered as a factor in connection with any disciplinary action, promotion, etc. Such subject file will be maintained in accordance with the Service records retirement program. [Revised provision]
L. All employees are expected to promptly pay all just financial obligations.
M. The parties agree that letters of reprimand, suspension of less than fifteen (15) days, and other adverse actions will be taken only for appropriate cause as provided in applicable law. Such cause, in the case of actions which are not based on unacceptable performance, shall be just and sufficient and only for reasons as will promote the efficiency of the Service. [Revised provision]
JUST CAUSE: Over the years the opinions of arbitrators in numerous discipline cases have developed a sort of Acommon law@ definition of just cause. This definition consists of a set of guidelines that are to be applied to the facts of any one case.
SEVEN TESTS OF JUST CAUSE
1. NOTICE:
ADid the Employer give to the employee forewarning or foreknowledge of the possible or probable consequences of the employee=s disciplinary conduct?@
2. REASONABLE RULE OR ORDER:
AWas the Employer=s rules or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the Employer=s business, and (b) the performance that the Employer might properly expect of the employee?@
3. INVESTIGATION:
ADid the Employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?@
4. FAIR INVESTIGATION:
AWas the Employer=s investigation conducted fairly and objectively?@
5. PROOF:
AAt the investigation, did the >judge= obtain substantial evidence or proof that the employee was guilty as charged?@
6. EQUAL TREATMENT:
AHas the Employer applied its rules, orders and penalties even-handedly and without discrimination to all employees?@
7. PENALTY:
AWas the degree of discipline administered by the Employer in a particular case reasonably related to (a) the seriousness of the employee=s proven offense, and (b) the record of the employee in his service with the Employer?@
[Arbitrator Carroll R. Daugherty, Enterprise Wire Co., 46 LA 359 (1966)]
N. Although termination of a probationary or temporary employee is not an appealable adverse action, the Service agrees that when it deems advance notice of termination to be in the best interests of the operations of the Service, the affected employee will be given 2 weeks advance notice prior to the effective date of such action.
ARTICLE 33
Grievance Procedure
A. Key points:
$ The negotiated grievance procedure is the only procedure available to the Union and bargaining unit employees for resolving grievances which fall within its coverage, except as specifically provided in the contract.
$ Any bargaining unit employee or group of bargaining unit employees may elect to present a grievance without the intervention of the Union. Adjustments of such grievances must be consistent with the terms of the contract and the Union must be given the opportunity to be present during the processing and at the adjustment and furnished a copy of any written adjustment.
$ The initiation or presentation of a grievance by employees will not cause any reflection on their standing with or their loyalty to the Service. [Revised provision]
B. Definition:
$ 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.
This type of grievance procedure is referred to as a Abroad scope@ grievance procedure because it encompasses most areas of employee dissatisfaction. It is contrasted by the Anarrow scope@ grievance procedure of the former contract, which only allowed grievances over matters specifically mentioned in the contract.
Exclusions:
$ The following matters may not be raised under the negotiated grievance procedure:
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 1, 2, and 3 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 1 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. [New provision]
Note:
$ The following matters may either be grieved under the negotiated grievance procedure or pursued under the statutory appeal procedure, but not both:
$ adverse actions within the meaning of 5 U.S.C. ‘ 7512.
$ removals or reductions in grade for performance reasons under 5 U.S.C. ‘ 4303.
$ EEO complaints.
C. Management should, but is not required, to raise questions regarding grievability or arbitrability at the earliest practical time. [Revised provision]
D. $ Every effort must be made by management and the aggrieved party(s) to settle grievances at the lowest possible level.
$ The employee and his or her representative will be given a reasonable amount of time to present the grievance.
$ Upon request, a grievant and his or her Local representative may each be authorized official time in the following amounts to prepare a grievance for presentation:
$ up to a maximum of 2 hours at Step 1
$ up to a maximum of 6 hours at Step 2
$ up to a maximum of 6 hours at Step 3. [Revised provision]
E. Procedures for employee grievances:
Step 1 grievance
$ Time limit:
$ Must be filed within 30 calendar days after the incident giving rise to the grievance occurs or the employee becomes aware of the incident.
$ Presented orally to the first-line supervisor.
$ Employee has the right to be assisted in the presentation by a Union representative.
$ If the employee elects not to be represented by the Union, the Union must be notified by management and provided with an opportunity to have an observer present and to receive a copy of any written adjustment to the grievance.
$ Resolution:
$ The first-line supervisor may take any action he or she deems appropriate to resolve the grievance.
$ If the first-line supervisor cannot resolve the grievance, he or she must notify the employee as soon as possible, but no later than 5 work days after presentation of the grievance.
$ The decision of the first-line supervisor may be oral or in writing.
Note: This step of the grievance process is also referred to as an Ainformal@ grievance because the presentation is oral and does not have any procedural requirements like the subsequent steps of the grievance process.
Step 2 grievance
$ Time limit:
$ Must be filed within 15 calendar days after receipt of the decision regarding the Step 1 grievance.
$ Presented in writing to the Chief Patrol Agent, setting forth:
$ exactly what the grievance is.
$ the facts of the grievance, including:
$ the names of any individuals or entities against whom the grievance is made,
$ the pertinent Article(s) and Section(s) of the contract in dispute, if applicable,
$ the reason for dissatisfaction,
$ the corrective action desired,
$ the name and address of any witness(es),
$ if the Union is representing the employee, the name and address of the Union representative.
$ The Chief Patrol Agent or his or her designee will meet with the employee.
$ If the employee is represented by the Union, his or her representative has the right to be present, in a duty status, at the meeting.
$ If the employee elects not to be represented by the Union, the Union must be notified by management and provided with an opportunity to have an observer present in a duty status.
$ Resolution:
$ The Chief Patrol Agent shall render a decision to the employee within 20 calendar days after receipt of the written grievance, setting forth in precise terms the basis for the decision.
$ The Union will be provided with a copy of the written decision in all cases.
Step 3 grievance
$ Time limit:
$ Must be filed within 15 calendar days after receipt of the decision regarding the Step 2 grievance.
$ Presented in writing to the Regional Director, and must include:
$ a copy of the Step 2 grievance,
$ a copy of the written decision regarding the Step 2 grievance,
$ the reason(s) for dissatisfaction with the Step 2 decision, and
$ the corrective action desired.
$ A copy of the Step 3 grievance must also be served upon the official who rendered the decision in the Step 2 grievance.
$ The Regional Director or his or her designee will:
$ obtain or direct to be obtained any additional facts that he or she deems to be appropriate, including consultation with the employee and his or her representative.
$ Resolution:
$ The Regional Director will render a decision to the employee within 30 calendar days after receipt of the written grievance, including a basis for the decision and a statement of facts to support the decision.
Binding arbitration
The final step of the grievance procedure is binding arbitration. It may only be invoked by the Union, not an individual grievant. [Revised provision]
See Article 34 for time limits and procedures for invoking arbitration.
Note: Grievances concerning disciplinary actions, including official reprimands, are covered under Article 32.I. of the contract.
F. Union initiated grievances
Note: This procedure contains only one step before binding arbitration.
$ Time limit:
$ Must be filed within 30 calendar days after the incident giving rise to the grievance occurs.
$ Presented in writing to:
$ the Chief Patrol Agent, for actions initiated by or within a Sector;
$ the Regional Director, for actions initiated by a Region;
$ the Executive Associate Commissioner, Field Operations, for actions initiated by Headquarters.
$ The grievance may only be filed by the Council President or his or her designee.
Note: The Council President is free to designate any representative of the Union to file a Union initiated grievance on his or her behalf. There is no requirement for a written designation to accompany the grievance.
$ The grievance must set forth:
$ exactly what the grievance is.
$ the facts of the grievance, including:
$ the names of any individuals or entities against whom the grievance is made,
$ the pertinent Article(s) and Section(s) of the contract in dispute, if applicable,
$ the reason for dissatisfaction,
$ the corrective action desired,
$ the name and address of any witness(es).
$ The Union representative and the management representative will discuss the matter as soon as possible.
$ The management representative will obtain whatever additional evidence is necessary.
$ Resolution:
$ The management representative shall render a decision to the Union within 30 calendar days after receipt of the written grievance.
Binding arbitration
If the grievance is not settled by the foregoing procedure, the Union may invoke arbitration within 15 calendar days after receipt of management=s decision. [Revised provision]
G. In the case of identical grievances, one grievance may be selected by the Union for processing. The decision(s) on the selected grievance shall have binding application to the other grievances. [Revised provision]
Note: AIdentical grievances@ involve situations in which the essential elements of the cases are the same for more than one employee, such as an alleged failure to properly compensate a group of employees on the same detail or assignment.
H. $ All time limits of the negotiated grievance procedure may be extended by mutual agreement of the employee or his or her representative and the Service.
$ Failure of the Service to observe the time limits and procedures for any step in the grievance procedure shall entitle the employee or the Union to advance the grievance to the next step and present the additional violation to the arbitrator for adjustment. [Revised provision]
I. $ All time limits of the negotiated grievance procedure, including arbitration, shall be controlling.
In other words, if the employee (or his or her Union representative) fail to meet a time limit, the grievance may be closed for lack of timely prosecution.
$ Where, under the provisions of the negotiated grievance procedure, the time limit for taking an action falls on a weekend or a holiday, the action will be considered timely if taken on the next work day.
$ Service will be by personal service, Certified Mail (Return Receipt Requested), Express Mail, Federal Express, or Mailgram. [Revised provision]
J. $ Grievances will be filed at the level where the action being grieved was initiated.
$ If management raises a valid argument that a grievance was filed at an improper level, the grievance will be considered timely if it was otherwise submitted in a timely manner, and will be forwarded to the level that the Agency designates as being responsible for the action being grieved. [New provision]
ARTICLE 34
Arbitration
A. Arbitration may be invoked by the Union if the parties are unable to resolve a grievance processed under the negotiated grievance procedure.
Note: An individual has no right to invoke arbitration; this right may only be exercised by the Union.
Time limits for filing request for arbitration:
$ Matters other than suspensions or adverse actions:
$ Within 15 calendar days from the date the Service=s final decision is personally delivered or mailed. If service is by mail, 5 additional calendar days are added. [Revised provision]
$ Suspensions or adverse actions:
$ After receipt of the Notice of Decision, but not later than 30 calendar days after the effective date of action. [Revised provision]
B. Both management and the Union are required to sign Form R-43, but may provide independent input regarding the issue, the area from which arbitrators may be drawn, etc.
The Union may either submit a written request to management for arbitration, or a completed R-43, to fulfill the requirement of Section A.
1. If the Union submits a written request, management will prepare a R-43 and submit it to the Union, which shall provide its input, sign the form, and submit it to the FMCS within 7 calendar days.
2. If the Union submits a completed R-43 to management, management will provide its input, sign the form, and submit it to the FMCS within 7 calendar days.
The parties shall telephonically select an arbitrator within 7 calendar days after receipt of a list of arbitrators from the FMCS. If they cannot agree upon one of the listed arbitrators, the Service and the Union will each strike one arbitrator=s name from the list of five and then repeat this procedure. The remaining person shall be the duly selected arbitrator. [Revised provision]
C. Either party may withdraw its grievance or request for arbitration of a grievance at any time. If this results in charges, the party withdrawing the grievance or request for arbitration shall pay all such charges. [New provision]
D. If for any reason either party refuses to participate in the selection of an arbitrator, the FMCS will be empowered to make a direct designation of an arbitrator to hear the case.
E. $ The arbitrator=s fees and expenses shall be borne equally by the Service and the Union.
$ The arbitration hearing will be held, if possible, on the Service=s premises during the regular day shift of the basic workweek.
$ In the absence of operational emergency circumstances, the Service shall, if provided two weeks notice of the arbitration hearing, rearrange schedules so that all participants receive reasonable official time to prepare for, participate in, and travel to and from hearings.
$ Participants appearing for the Union will be entitled to applicable travel and per diem if roundtrip travel of more than 100 miles is required.
$ If each party elects to receive a transcript, each shall pay half the cost. Either party may elect to receive a transcript initially ordered by the other at any time up to the conclusion of the hearing.
$ If either party does not elect to receive a transcript ordered by the other party, the transcript shall be made available for inspection when post-hearing briefs are exchanged. A request to correct the record may be made up to 7 calendar days following the inspection. [Revised provision]
G. The arbitrator=s award shall be final and binding on the parties, but may be appealed in accordance with the law. [Revised provision]
ARTICLE 35
Negotiation of Supplemental Agreements
A. Each AFGE Local with bargaining unit employees assigned to a Border Patrol Sector may negotiate a supplemental agreement. Only one supplemental agreement is allowed per Sector.
Note: This does not preclude the parties from re‑opening the supplemental agreement periodically, provided they mutually agree to do so.
B. Supplemental agreements are subject to review by the parties at the national level to ensure they do not conflict with the Master Agreement. This review must occur within 15 calendar days following the execution of the supplemental agreement. Disputes over provisions that are alleged to conflict with the Master Agreement will be resolved through arbitration. [Revised provision]
C. Appropriate matters for negotiation in supplemental agreements are defined by the Civil Service Reform Act of 1978. [Revised provision]
ARTICLE 36
Impasses in Supplemental Negotiations
This Article sets forth procedures to be followed if the parties are unable to agree on issues during supplemental negotiations.
ARTICLE 37
Merit Promotion Plan I
After agreement is reached on a new merit promotion plan, it will become part of the contract (Appendix II).
ARTICLE 38
Publicizing the Agreement
A. The Service must print and distribute (5″ x 7″) legibly printed copies of the Agreement to all employees currently assigned to the bargaining unit. [Revised provision]
B. The service will provide 150 copies of the contract to the Council President and 50 copies to AFGE. [Revised provision]
C. At the time of orientation, the Service must advise all new bargaining unit employees that the Union has exclusive recognition and furnish them a copy of the Union contract.
D. The Union will be allowed to make a fifteen (15) minute presentation to all new employees during their orientation. This will occur during the regular duty hours of the new employees, but the Union representative will be in a non-duty status.
Note: The requirement that the Union representative be in a Anon-duty status@ does not mean that he or she must be on an assigned day off duty or on a full day of excused absence; the Union representative can make the presentation during any type of non-duty status, such as, but not limited to:
$ before or after his or her assigned shift
$ during a break
$ during a lunch period
$ while on leave for just a portion of the day
The Union=s presentation may only cover labor relations law, provisions of the contract and Union-Management agreements. [New provision]
ARTICLE 39
Effective Date and Duration
A. The effective date of the agreement is February 6, 1995. [Revised provision]
B. The agreement remains in effect until February 6, 1998. [Revised provision]
Note: On February 6, 1998, the agreement was extended for 120 days.
C. Negotiations on a successor agreement shall begin within 60 days of receipt of notice of a desire to renegotiate the contract. Such notice must be delivered not less than 180 days nor more than 210 days prior to the expiration of this contract. [Revised provision]
