September 29, 2016
I am pleased to announce that NTEU and CBP have reached settlement of a dozen pending
national grievances filed on behalf of CBPOs and Agricultural Specialists involving shift,
scheduling and overtime issues.
CBP has agreed to pay $184 million to settle these grievances, many of which have been
pending for years. Eligible employees will receive a cash distribution and/or compensatory
This was an extremely complex settlement following many years of litigation and months of
challenging negotiations. Because of legal limitations on the funds CBP can use for this
purpose and how those monies can be spent, the terms and the payout formula are
In the end, when all factors were weighed, including the difficulty of persuading Congress to
appropriate more funds for a larger payout, I determined this was the best possible deal for
our members and that we should act now.
CBP will pay $184 million into a settlement fund, which represents unspent salary and
expense (S&E) appropriations for fiscal years 11, 12, 13, 14 and 15. A settlement
administrator has been retained to calculate and make payments to individuals covered by
the settlement agreement through a share-based system.
Here are some details about the settlement:
CBPO or Ag Specialist position at any time between Oct. 1, 2010, and Sept. 30, 2015.
By law, FY 11-FY 15 funds may only be used to compensate those employed during
that time period.
payments since they have probably endured more of the violations covered by the
required employer contributions for FICA, Medicare, and retirement, including TSP
contributions, must be deducted from the cash payments.
employed by CBP will receive 16 hours of compensatory time. Employees hired in
2016 will receive comp time but no back pay since they were not employed during the
FY 11 – FY 15 time period. Additional compensatory time will be given to individuals
whose cash payments are limited because of the overtime cap. The comp time will be
credited immediately but, after Jan. 1 2017, must be used before sick or annual leave
We expect the settlement administrator will take a few months to calculate individual
amounts under the formula and issue checks. The administrator can only do so after
receiving a significant amount of data from CBP. CBP must provide that data within the next
As part of our deliberations, we considered the option of holding out for larger payouts. In
making the decision to settle now, National Executive Vice President Jim Bailey and I
carefully weighed all of the factors involved in the deal and consulted with CBP chapter
In the end, I determined it was in the best interest of affected employees and NTEU to reach
this settlement. Most importantly, a significant portion of the available funds was expiring
and would revert back to the U.S. Treasury at the end of this fiscal year. Failing to settle now
would have resulted in a major reduction in the total payout that was feasible. Moreover,
calculating, documenting and reaching agreement with CBP on the individual amounts owed
to each affected Officer and Specialist would likely have taken years to accomplish with
absolutely no guarantee of success.
During these negotiations, we also worked to protect your rights under the contract and the
law. One of the more contentious aspects of the negotiations was the scheduling
requirements of Section 6101 and Article 34 of the term contract. We secured language to
be included in the term contract now being negotiated that is consistent with the current
state of the case law on CBP’s obligations in this area. It spells out the circumstances under
which CBP can deviate from the three primary scheduling requirements. And CBP must
provide a written explanation of the need for the deviation upon request.
We also agreed to four limited situations where deviation from the scheduling requirements
may be appropriate: (1) mandatory training; (2) court or litigation related activities; (3) ATCET
or PERT assignments; and (4) when an employee requests a schedule change
consistent with the terms of the contract.
The settlement covers a dozen pending national grievances filed on behalf of CBPOs and
Agricultural Specialists concerning claimed violations of: (1) the scheduling requirements of
5 U.S.C. Section 6101 and Article 34, Section 5 of the contract; (2) the bid and rotations
provisions of Article 13; (3) implementation of the Revised National Inspection Assignment
Policy (RNIAP); and, (4) COPRA and/or the Fair Labor Standards Act (FLSA) for unpaid work.
The settlement also covers local grievances making the same claims for the same time
We will provide you with further information and a detailed Frequently Asked Questions
document once the formula is finalized and more details are available.
In closing, I believe this is a very good settlement for our members. By bringing an end to
this long-standing litigation, it is my hope that we can move to a more positive working
environment for you and your colleagues.