NTEU...At Work For You

Read about recent arbitration cases and find out how NTEU is at work for Department of Homeland Security employees.

Work Locations

Cargo Operations

The Rest of the Story

Appropriate Discipline

Lack of Evidence

Interview Rights

Travel Reimbursements

 

Work Locations

An officer in what was to become DHS’s Bureau of Customs and Border Protection (CBP) had served six years of voluntary pre-clearance duty in Montreal, Canada, and was ready to return to duty in the United States. So he followed the rules and submitted his list of preferred U.S. work locations, with Denver, Colorado at the top of his list. But Customs didn’t assign him to Denver, where there was an opening and where the employee wanted to work because of family considerations; instead, they sent him to Seattle, Washington, his fourth choice. At arbitration, NTEU successfully argued that the contract and past practice should have resulted in an assignment to Denver. But that wasn’t the end of the case; CBP, which had absorbed Customs, interpreted the arbitrator’s decision to mean they didn’t actually have to transfer the employee to Denver. That’s not how NTEU saw, and the union fought for more than a year until the employee won a transfer to his preferred location.

NTEU’s skill in negotiating contract language that protects employee rights and the union’s persistence in fighting the battle to a successful conclusion, no matter how long it takes, served this employee—and will serve all CBP employees—well.

Cargo Operations

Customs began assigning a single Army National Guard member to work the exit gate alone—a move that was contrary to local standard operating procedures, a Memorandum of Understanding (MOU) agreed to by NTEU and Customs only a year earlier, and the long-standing practice of using two armed inspectors. NTEU pressed the case to arbitration and won a ruling supporting the existence of the past practice of using armed inspectors for exit gate operations; and that the MOU required the exit gate to be staffed with an armed inspector in addition to the National Guardsman. The agency was ordered to reinstate the use of armed inspectors with an unarmed National Guardsman on exit gate operations and awarded over $500,000 in back pay and interest.

NTEU has proven, time and again—and this is another example—that it will hold agencies to the letter and intent of its agreements. At NTEU’s urging, the arbitrator found that the National Guard MOU implicitly required staffing levels be maintained in spite of the use of National Guard personnel at various locations at the border.

The Rest of the Story

A messenger with 25 years of experience delivered documents, packages, money and other materials at a key port. He was handed a seven-day suspension for his involvement in an auto accident with his government vehicle when he attempted to turn onto the exit ramp lanes of a bridge against the flow of traffic. Actually, he was doing what he had been trained to do—taking this unusual route to make deliveries to the secondary inspection area. With NTEU pointing the way, the arbitrator looked at the long-term use of the route by both bargaining unit and non-bargaining unit employees and the grievant’s perfect 25-year driving record. Accordingly, he rescinded the suspension and made the employee whole.

NTEU knows well that circumstances may tell quite a different story from the one told by management, which can choose to overlook or ignore important factors in imposing discipline. The whole story may well be not just different, but as in this case, one that serves to exonerate an employee.

Appropriate Discipline

A senior Customs inspector and chapter leader got a five-day suspension for the use of inappropriate language directed at a supervisor. Only it wasn’t directed at the supervisor; it was, instead, uttered in frustration at the supervisor’s action in denying a simple request that the she provide the inspector with the clipboard she was holding so the employee could properly sign up for overtime. The supervisor admitted her behavior toward the inspector was “less than civil”—but the agency imposed the suspension nonetheless.

NTEU understands discipline, and it knows the importance of arguing about whether agency-imposed discipline is appropriate or not. In this instance, a lengthy suspension—while the agency rushed to impose it—was not appropriate. If anything was needed, in light of the supervisor’s admitted behavior, the counseling memo the arbitrator decided to allow was plenty. But without NTEU in the picture, the penalty would have been an unfair suspension.

Lack of Evidence

A grievant was handed a two-day suspension for allegedly failing to follow supervisory instructions and thus improperly responding to a radiation portal alarm. The thrust of the allegation was that the grievant was inattentive in that he failed to hold a truck at his inspection lane after an alarm had sounded in a different lane. The protocol provided for the officer in the lane where the alarm sounded to alert all booths by pager on their phone so they would hold vehicles at their lanes. While the grievant didn’t act on the alarm or page by holding the truck in his lane, there were simply too many reasonable alternatives—such as his duties taking him away from his lane, or he could have been on the phone on another matter—to decide that the grievant was inattentive, the arbitrator ruled.

The arbitrator cited the NTEU-negotiated collective bargaining agreement as requiring that employee discipline meet certain guidelines—and at the root of these guidelines is first and foremost the fundamental matter of guilt. NTEU built this concept into its labor agreement: that without sufficient evidence of violation of a rule, simple failure to comply with a procedure, policy or known expectation does not give rise to discipline such as a suspension.

Interview Rights

A long-time CBP officer in Fabens, El Paso, and now Dallas, Chapter 140, was given a 21-day suspension for refusing to go forward with an agency interview without his attorney present.  The employee had been previously interviewed by Internal Affairs (IA) with his NTEU representative but when the questions started to move into potential criminal activity his steward suggested the interview be postponed until a criminal attorney could be consulted. IA agreed to the postponement. It was subsequently discovered that a criminal investigation had been opened on the employee. When his criminal attorney was present, the IA agents refused to allow him to attend the interview, claiming it was an administrative matter. The attorney requested to speak to CBP counsel but was denied. The employee opted not to attend the interview in the face of a criminal investigation. The agency proposed to suspend the employee for 45 days for the matters related to the initial investigation and the refusal to participate in the interview. After the oral reply, all charges were dropped except for the refusal to cooperate in the investigation and the suspension was reduced to 21 days. Not satisfied, NTEU pursued the case to arbitration. The arbitrator concluded that the employee had not been properly notified that the local U.S. Attorney had declined prosecution, and therefore, the employee was entitled to have an attorney with him at the interview.  The arbitrator reversed the suspension entirely and ordered full back pay and interest.

This is another example showing that NTEU is determined to protect employee rights at every stage of the agency interview process, and to ensure that all relevant information is brought to bear on behalf of an NTEU member.

Travel Reimbursements

During the level one alert after the Sept. 11 attacks, non-inspectional Customs employees in Buffalo, NY, were temporarily reassigned work at various border crossing warehouses. But when the employees submitted vouchers for their excess travel, management refused to reimburse them, asserting that the assignments were “rotations,” and, therefore, not eligible for reimbursements. At arbitration, NTEU pointed out that Customs personnel in Seattle had similar assignments during the level one alert, and those employees were reimbursed for their travel to duty stations. NTEU won the Buffalo employees more than $18,000 in travel reimbursements owed to them and is pursuing other claims.

NTEU not only won more than $18,000 in travel reimbursements for Customs employees, but secured an arbitration decision requiring CBP to follow the contract, even during high-level alerts.