NTEU, CBP Reach Settlement On Behalf of CBPOs and Ag Specialists

September 29, 2016

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

time.

 

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

unusually complicated.

 

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:

  • A cash distribution will be made to every employee who occupied a bargaining unit

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.

  • Officers and Specialists who have more service with CBP will likely receive higher

payments since they have probably endured more of the violations covered by the

settlement.

  • Since payments are considered back pay, mandatory employee withholdings and

required employer contributions for FICA, Medicare, and retirement, including TSP

contributions, must be deducted from the cash payments.

  • In addition to the individual payments, all CBPOs and Ag Specialists currently

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

is taken.

 

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

90 days.

 

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

leaders.

 

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

period.

 

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.

 

Tony Reardon

National President

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© 2016 by National Treasury Employees Union Chapter 137, Miami, FL

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