Right to Union Representation

Right to Union Representation

This NBPC Legal Advisory is being distributed to help bargaining unit employees understand their right to Union Representation during investigative interviews. The right is contained in Article 31 (B)(3) of the CBA and Section 7114 (a)(2) of the Civil Service Reform Act of 1978. To be entitled to representation the member must reasonably believe that the examination may result in disciplinary action and must request the representation. The Agency provides a notice of the right when an employee has been issued a Notice to Appear (NTA) as the subject of an investigative interview. The notice is referred to as a “Weingarten Notice” because of the United States Supreme Court decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), upholding the right to representation.

Agents are sometimes issued an NTA to appear as a “witness” and not a “subject” in an investigative interview. It is recommended that all members who receive such a notice contact a Union Representative immediately, even if the member is not the subject of the investigation. In the past, members who have appeared as “witnesses” have later found themselves facing disciplinary action. Common allegations against witnesses include “lack of candor” and “failure to report.” Since the witness does not know the questions in advance of the interview, there is no way to be sure whether an answer may lead to disciplinary action. If the investigator believes the witness is lying or thinks the witness is withholding information, the witness may be subject to disciplinary action.

To invoke the right to representation, the member must state, “I reasonably believe that the examination may result in disciplinary action against me and I am requesting Union Representation.” Many investigators will simply allow the Representative to be present and move on with the interview. Some investigators will inquire as to the basis for the “reasonable belief.” The most common answers to this inquiry are: “I do not know what questions are going to be asked and if you do not believe my answers or do not think I am being forthcoming I will be subject to discipline;” “I am here because you believe I am a witness to misconduct by another agent and, as such, I may be subject to discipline if you do not believe I timely reported an incident or if I omitted any details of the incident;” “if you do not believe me you might refer me for prosecution under 18 U.S.C 1001.”

Some investigators will persist in denying representation in witness interviews, even after the member requests the representation and states a reasonable belief that his/her answers may lead to disciplinary action. These investigators argue that since the member is not the subject of the investigation, he or she cannot “reasonably believe that the examination may result in disciplinary action.” In responding to this attempt to deny representation, it is important to remember that the investigator has no authority to grant immunity from disciplinary action. It is LER or the DRB that decides whether to propose disciplinary action, not the investigator. The investigator’s job is to gather facts. If those facts warrant disciplinary action, such action will be proposed. It does not matter that the facts were gathered as part of a “witness” interview rather than a “subject” interview. It is also important to point out that it is not the investigator’s “reasonable belief” that is relevant.

If, after making the request and stating a reasonable belief that the inquiry may result in disciplinary action, the investigators continue to refuse to allow Union Representation, a decision must be made as to whether to proceed with the interview or refuse and leave. This decision must be made on a case-by-case basis, and preferably after discussing with your Union Representative. If the interview proceeds without representation, the Agency may have committed an Unfair Labor Practice (ULP).

2017 Election Notice

The election committee for the 2017 executive board election of Local 2366 has posted an election notice and will send it to those members for whom we have a mailing address and/or email address on file.

Click here to view the notice.

Be careful with what you post online

PROTECTING YOUR SOCIAL MEDIA FROM USE AGAINST YOU

This NBPC Legal Advisory is being distributed to help bargaining unit employees understand the risks inherent in maintaining and using a social media account such as Facebook, and, to help members better understand what actions they can take to protect their account from use against them. The NBPC and its Locals have seen numerous instances where the Agency (both management and internal investigators) have either attempted to acquire, or have successfully acquired, social media postings of employees, and have used those postings as evidence in support of disciplinary actions.

The laws regarding acquisition of your social media postings are too numerous and complicated to recite fully here. In short, you must assume that management could possibly discover what you post, even when your security settings are set to, "friends only." Examples of such posts might be a political article or commentary, verbal or pictured jokes, or, advocacy or approval of "morally questionable" conduct. Even if you removed such a post, you might be concerned if one of your "friends" who saw the post retained a copy and provided or vividly described that post to management or even the media. Keep in mind it is impossible for you to prevent any one of your "friends" from printing, supplying or describing your posts to any one person. In short, you should take care to make sure that posts made under your name couldn’t be construed to hold you in violation of the CBP Standards of Conduct.

The NBPC strongly recommends that employees do not post regarding work-related matters to which the employee has a nexus. For example, describing how much fun you had tracking a group that led to a drug seizure should definitely not be made. At the same time, you should also not post about such an event, even only when you heard about that event through work. In short, if the posting has a connection to something you learned of, or were involved, in because of your work, or could be construed that your knowledge of the event was because of your employment, don’t post it!!! Such a post is likely also discoverable through subpoena by a defense attorney for the persons arrested in that event.

There are, of course, exceptions to these rules, but the purpose of this Legal Advisory is not to try and provide you justification for your posting, but rather, instilling in you the mindset that you should really think about your post and its impact on your job before you make the post. Because the First Amendment potentially protects your posts, it is virtually impossible to provide you a framework in this Advisory of how to evaluate each and every post you will contemplate making. Also, keep in mind, analysis of First Amendment protection typically provides a balancing test of your commentary upon a matter of public concern compared to your employer’s 1) interests in avoiding disruption in the workplace, and, 2) furthering its mission as a law enforcement entity. The Supreme Court already made clear long before Facebook was really popular in the 1994 case Waters v. Churchill:

When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.

That restraint is always in the form of a disciplinary action, so use your best judgment over what you really need to post. If you have that second thought before hitting the "post" button, your best choice is think more about what might happen if your PAIC or an OPR investigator saw that post. While it may be possible that you ultimately prove that a social media posting of yours was lawfully protected, or, illegally obtained as evidence against you, keep in mind that finding is typically made by an arbitrator or a judge after you already suffered a consequence such as removal from service or suspension without pay. The NBPC therefore strongly recommends that you restrain yourself before CBP does!

Nominations open on July 11 for 2017 executive board election

Nominations for the offices of President, Executive Vice President, Vice President North, Vice President South, Treasurer, and Secretary of Local 2366 will be accepted beginning July 13, 2017 (July meeting being held at 801 Kings Way, Del Rio, Texas) until the close of the meeting on August 10 (check www.nbpc2366.org for the exact location). The term of office will run for two years.

Nominations should be made in person at the meeting on July 13, 2017, or submitted to the Nomination Committee via email at nominations@nbpc2366.org. You may also provide your nomination in writing to any member of the committee which consists of Daniel Heriford (COM), Margie Moran (EGS), Rick Hernandez (COM), and Enrique Ramirez (UVA). All nominations must be received prior to the close of meeting on August 10, 2017.

As provided in the Local 2366 Bylaws, any current dues-paying member, in good standing is eligible to nominate candidates and run for office.

Once a candidate has been nominated, they must accept the nomination in person at the meeting on July 13, 2017, or via email at nominations@nbpc2366.org, candidates must state they accept the nomination. Anyone who is nominated and does not confirm their nomination will not be included on the ballot.

The election will be conducted in between the August and September meetings (with results being announced on September 14, 2017), please look for your ballot in your work mail drawers, at your physical mailing address which you provided to AFGE, or in your personal email address which you have provided to Local 2366 or AFGE (please only submit one ballot). All ballots will be mailed/emailed shortly after nominations have closed. Additional information regarding the election will be provided in a separate notice which will be provided to all Local 2366 members at a later date (via mail).

Nationwide swaps open June 26, 2017

The latest round of nationwide swaps will be open from June 26, 2017, at 8:00 AM CST through July 10, 2017, at 4:00 PM CST.

More information is available here:
http://bpunion.org/member-resources/member-advisories/1874-nationwide-sw...

Update to Backscatter/VACIS health concerns

Yesterday, the Union advised employees of eight confirmed cases of cancer among agents who have been assigned to perform Backscatter/VACIS duties in the El Paso Sector. After seeing NBPC’s advisory, a former Border Patrol employee also assigned to perform Backscatter duties advised us that he is afflicted with another type of cancer, Myxoid Liposarcoma. None of the aforementioned employees were genetically predisposed to their respective diagnoses. The eight confirmed cases we are aware of currently only consist of male employees, four of which reside in El Paso County and 4 of which reside in Dona Ana County. In 2014, El Paso County, Texas, reported a thyroid cancer incidence rate for males at 7.6 persons diagnosed with the disease for every 100,000 people. In 2014, Dona Ana County, New Mexico, reported a thyroid cancer incidence rate for males at 6.0 persons diagnosed with the disease for every 100,000 people.

NBPC urges Border Patrol agents who have been assigned to perform those duties to seek guidance from their personal physician. Employees should provide the physician with this advisory, a summary of his or her job duties, and any non-sensitive information on the VACIS/Backscatter, specifically the radioactive properties they bear. Employees should submit a completed CA-2 if cancer or any other medical condition is found and linked to their employment along with a copy of the medical report or diagnosis. For more information, refer to Department of Labor, Office of Workers’ Compensation, Publication CA-810, Chapter 2-3. Union representatives can assist employees with their Workers’ Compensation claims. If your physician requests further details regarding the equipment used, you can refer to ZBV and AS and E on this link.

We are reviewing data that has been provided by the agency and are requesting more information as additional employees step forward. Once we have received, reviewed, and analyzed all of the information requested, we will provide members with another update.

Agents should share any concerns about operating the Backscatter/VACIS with management, and if ordered to use the equipment, inform them of the concerns involving their health and well-being prior to being ordered to operate the Backscatter/VACIS. If you are still ordered to operate them, please contact a Union Representative immediately. OSHA states that under certain circumstances workers have the right to refuse dangerous work. For employees to be protected under this doctrine certain criteria must be met. For more information visit https://www.osha.gov/right-to-refuse.html.

Health concerns related to Backscatter and VACIS

The Union has learned that there are at least eight confirmed cases of cancer (seven Papillary Thyroid Carcinoma and one Medullary Thyroid Carcinoma) among agents who have primarily been detailed to perform Backscatter/VACIS duties at Border Patrol Checkpoints in the El Paso Sector.

We are reviewing data that has been provided by the agency; however, we urge Border Patrol agents who have been assigned to perform those duties to seek guidance from their personal medical doctor and submit a completed CA-2 if cancer or any other medical condition is found and linked to work. Once we have received, reviewed, and analyzed all of the information requested from the Agency, we will be in a better position to offer instruction on how to proceed further. Agents should share any concerns about operating the Backscatter/VACIS with management, and if ordered to do so, inform them of the concerns involving their health and well-being prior to being ordered to operate the Backscatter/VACIS. If you are still ordered to operate them after explaining this to your supervisor, please contact a Union Representative immediately.

Unfortunately, El Paso Sector and OBP Headquarters management have known about this issue for a significant period of time and they have not addressed it, nor, to our knowledge, have Border Patrol agents nationwide been advised of the issue.

Pages

Subscribe to NBPC Local 2366 - Del Rio, Texas RSS