January, 28^th 2008

To: All Union Members

SUBJECT: Clarification regarding the situation of Administratively Uncontrollable Overtime  Download this file in MS Word

            Del Rio Sector management, as well as Laredo Sector and El Paso Sector, has decided to go to a four shift rotation. This limited change is in contrast to the first impressions given, that the decision to go to a four shift rotation encompassed the entire United States. There are many who have made an effort to blame the Union for this alteration, but there are certain facts that all should be made aware of prior to placing blame.

1.   AUO (Administratively Uncontrolled Overtime) is uncontrollable, in that it is not anticipated, because it in unanticipated it cannot be scheduled. When someone is made to work checkpoint for eight hours and told to wait for relief from their position in excess of their eight hours, that additional time is scheduled and controllable, therefore time in excess of the eight hours would be considered RSOT (Regularly Scheduled Overtime.)

2.   Management has historically regulated and mandated Agents to remain in static positions until after relief has arrived.  Usually the relief would arrive after the scheduled eight hours of work. Because the Agent is not allowed the opportunity to stop working, anytime in addition to his/her scheduled eight hours would be considered RSOT.

3.   The Union has the right to request that Agents be compensated in accordance with the laws regarding AUO and RSOT. Appropriate payment is not a privilege, it is the law.  If that does not occur, then the Union has an obligation to its members to investigate any possible means to ensure that Agents are appropriately compensated.

4.   Approximately 7 years ago, Local 2544 in Tucson, Arizona, filed a grievance over this issue with the Tucson Sector Chief Patrol Agent, David Aguilar. In the case of the Tucson violation of pay, Agents were spending in excess of three hours working after their regular eight hours.  It was approximately 80 miles from the Tucson Station to their checkpoint, and they were expected, and ordered to work this time regardless of their opinions.   Mr. Aguilar refused the grievance, citing it lacked merit, and misappropriate payment continued.  On January 14^th, 2008, Mr. Aguilar, now Chief of the Border Patrol, provided a memo to his subordinates informing them that they will be held accountable for any expenses incurred by the Government for the misapplication of the AUO laws verses RSOT. The ironic thing about this is that CPA Aguilar, by providing this memorandum, is in essence admitting that he was not following the laws regarding AUO and RSOT at the time that he was the Chief Patrol Agent of Tucson Sector. To further explain the current state of the grievance, no remedy has yet been given with regard to the Tucson Sector checkpoint to date.  The present decision from the Del Rio Sector Chief, Randy Hill, appears to be knee-jerk and reactionary.  There was no order from Mr. Aguilar, and certainly not from the Border Patrol Union, mandating the implementation of four shifts.  Contrarily, the Local Union, 2366, was pleased with the previous arrangement of three shifts.

5.   The following is a simple illustration.  The agents were the victims of abuse by managed mis-payment in the past.  Now management has overtly and covertly attempted to blame the Agents and the Union for requesting justice.  The Agents are the victims and the managers the perpetrators. If someone is victimized by a perpetrator, who is at fault?  The victim, because they happened to be forced into that situation by the perpetrator? It should be the perpetrator, but unfortunately, some people have gotten this backwards and have sought to tag the Union with the blame. The Union is trying to make right, what should have been right in the first place, yet some managers (not all) have taken the position that laws, regulations, and principles are directed by themselves.

6.   A PAIC in Del Rio Sector sent an E-mail to his subordinate managers stating the following:

“The four shifts are a result of the latest law suit filed and won by the Union out in Arizona.”

“As supervisors, you have the authority to direct agents to work traffic after the end of their shift.”

“We will not be making work or allowing agents to just hang around so that they can maintain their two hours a day but if there is traffic out there we will direct agents to work it.”

“Another thing to keep in mind is that if you are short handed and need agents to work traffic you will be able to call in agents back once they have gone home or from their days off for as long as you need them. These call outs fall under the AUO guidelines and will be paid as AUO. Make sure that all assignments and call outs are fair and equitable to all agents.”

The Unions responses to each of these points are as follows:

a.   The case is not complete and the four shifts are only occurring in three Sectors in the continental United States. This is nothing more than one of several possible solutions, decided on by the Del Rio Sector Chief, to prevent the misapplication of AUO laws. 

b.   If a Supervisor orders or directs an individual to work in addition to their regularly scheduled shift, it is not administratively uncontrollable.  The laws regarding AUO state clearly that it is the decision of the Agent to continue to work because they know what needs to be done. You should notify the Union immediately if this occurs.

c.   If there is traffic that is ongoing then the Agents normally make the call to continue to work it, and most managers know that it isn’t necessary to tell them to continue. If managers start telling people to go home, then they also will have no purpose to remain in the station and can go home after their eight hours and lose their AUO also. No troops in the field, then that manager has ended his/her necessity.

d.   If you are called in on your days off or after you have left the station for the day that would be considered administratively controlled RSOT (The Supervisor is directing it). Should this become a problem, let the Union know what is going on.

            In short, this simple explanation of events should clarify what is going on right now. If there are any more questions; ask a Union Representative. The Sector has stated that it has given the Union a 3A notice, informing us of the change that is to take place on February 17, 2008. Once the Local is in receipt of that notice, we will determine a course of action to pursue.

In solidarity,
Scott R. Davis
President, Local 2366 NBPC/AFGE Affiliated with AFL-CIO

AGENTS OF THE BORDER PATROL MOURN THE LOSS OF ONE OF OUR OWN

It is with sadness that we bring to the forefront of our thoughts, the loss of Senior Patrol Agent Luis Aguilar, of the Yuma Sector. He was killed in the line of duty, while protecting our nation’s borders. The thoughts and prayers of Local 2366 go out to his family and co-workers in this difficult time.

DETAIL MANAGEMENT

Local 2366 has, in good faith, attempted to work with the management of Del Rio Sector in the implementation of a detail management system. This system would replace the questionable selection of personnel for details. The current system has demonstrated nepotism, favoritism, the “good ole boy” system, and, of course, recipients of “sweetheart deals” that have allowed specific personnel to move from detail to detail consecutively or remain on detail for multiple year increments, instead of returning to the field. A detail management team concept has been provided to each of the Patrol Agents in Charge throughout the Sector.  Some of them have taken the effort seriously to improve the dispersion of details to qualified and deserving individuals based on certain criteria, yet, some have taken the steps to ensure that managers still hold the lion’s share of the decision as to who gets the detail and who doesn’t, in layman’s terms, returning to the pervious detail management system, where details are decided by management. Still there remains some personnel receiving special treatment and remaining on detail.  The Union is taking steps to remedy the situation, thus opening up the details to other Agents within the sector who equally deserve, and have patiently waited for, the opportunities given to a select group.

HONOR LAST

 Fellow Union members take the time to look at Local 1613 of the National Border Patrol Council’s website and read the “HONOR LAST” column.  http://www.nbpc1613.org/Pages/Special/honorlast.htm  It has some good information to further assist many Union members in understanding why the vote of “No Confidence” in Chief of the Border Patrol, David Aguilar, occurred.
 The Service places posters and placards on walls touting the phrase “Honor First”. This is most often placed in areas that the public would be encountered to demonstrate the “values” of the organization. This is also to instill confidence into the public’s mind that these values actually exist in all aspects of the organization. “Honor” is not just a word to be bandied about to explain the Service’s moral and ethical prowess, but a word that requires action for the value to be demonstrated not solely to the public, but all members of the organization.
 Some would have you believe that Honor comes with the position. However, it is often the position that requires an honorable person to fill it. Without honor initially, the position will be nothing more than a promotion predicated on a test score and writing ability, not on the character of the individual. So, when reading the “Honor Last”, keep these thoughts in mind. A sign on a wall stating the values of an organization is exactly that, a sign nothing more. It takes people of character to bring honor to an organization. An organization cannot instill honor into an individual, who has joined the organization. This would be the same expectation as when an individual demonstrates a propensity towards lying, that the individual’s affiliation with an organization would somehow instill in them integrity. Integrity is another word that is found on a poster in the workplace, further explaining the “values” of the organization.
 Honor derived from position would not pass the test of reason. Look to people, who have held high positions in history.  If only by virtue of their prestigious positions honor was derived, then history may have judged their actions more kindly. Many of them criminals and dictators placed in positions of power which commanded respect, but not honor. All were positions of prominence, yet the position did not alter the person’s character. If anything, it illustrated the type of damage, to the lives of others, a person without honor was capable of orchestrating when given power.
 An organization can place multiple signs throughout the work environment to demonstrate to the public a commitment to an ideology of character, yet the actions of the organization may be contradictory to that professed ideology. In short the position does not place the virtue in a person, the person places that virtue in a position.

NO CONFIDENCE!

On February 28, 2007, the National Border Patrol Council, during a convention in Corpus Christi, Texas, had taken a vote of “NO CONFIDENCE” in regard to the leadership of Chief Patrol Agent David Aguilar and the vote passed unanimously. The vote even reflected the opinions of some recently promoted managers, who at the time of the vote were bargaining unit members. They voted along side of their peers within the Union in condemnation of CPA Aguilar’s leadership. Those in attendance for this historic vote were 100 delegates from nearly every Border Patrol Sector in the United States. These delegates are all elected to represent the nation’s frontline Border Patrol Agents. The vote is unprecedented and demonstrates the deep divide between the leadership of CPA Aguilar and the frontline Agents he is supposed to be leading. The two primary reasons for the vote of “NO CONFIDENCE” were the result of the prosecution of two of our nation’s Border Patrol Agents for the shooting and wounding of an illegal alien drug smuggler and the Chief Patrol Agent’s expressed desire that the immigration laws of the United States be changed, which has been otherwise referred to as “comprehensive immigration reform”. This is the same “comprehensive immigration reform” that would have provided an amnesty to many of the 12-20 million illegal aliens, who currently are in the United States contrary to our nations laws.

 On May 1, 2007, following the vote of “NO CONFIDENCE” an associate of Chief Patrol Agent David Aguilar, Jeff Self was sent from Border Patrol Headquarters in Washington D.C. to musters at the Tucson Sector. His intent was to discuss the vote of “NO CONFIDENCE” and how headquarters, “can improve communications with agents”. He was asking for a show of hands from Agents that supported the vote of “NO CONFIDENCE” with regard to the leadership of CPA Aguilar. The impression made is that if Agents did not raise their hands, then they did not support the vote of “NO CONFIDENCE”. This was an attempt by management to somehow demonstrate a lack of support to the vote of “NO CONFIDENCE” by bargaining unit members. Also any Agent, who chose to raise their hand in support of the vote would more than likely face CAREER SUICIDE. The vote of “NO CONFIDENCE“ was held and the votes rendered by the elected members of the National Border Patrol Council, who are designated as the representatives elected to speak out on behalf of the rank and file agents in the field. Due to the votes being taken by the representatives of the rank and file agents, it should be clear that any discussions with regard to the vote should be addressed through the Union’s leadership not the membership.

 On July 17, 2007, CPA Aguilar has made it mandatory, that all Agents watch a video produced by headquarters, expressing his views with regard to the situation on the border. This video indoctrination is so important that it is actually being documented as a form of training on forms used specifically for that purpose. It shows CPA Aguilar explaining what Agents in the field are already aware of, “Who is crossing our borders illegally”. He goes on to say that he is not concerned with the 12-20 million illegal aliens in the interior of the United States, but he has clearly advocated the passage of “comprehensive immigration reform”, as explained by President Bush. “Comprehensive immigration reform”, which includes a path not only to Lawfully Admitted Permanent Resident status but potentially to citizenship for many of the 12-20 million illegal aliens, who have broken our nations laws by entering our country illegally and who remain here today in contradiction to our nations laws.

 The Union has bumper stickers available that you can request from your union stewards expressing your support for the vote of “No confidence” and your opposition to providing amnesty to the millions of illegal aliens present in the United States, stating, “NO AMNESTY, NO CONFIDENCE” with the National Border Patrol Council’s emblem on a blue background. There are a limited number of these and the President of the local will provide the Vice Presidents with as many as possible to hand out.

 The shirt can be ordered from the Glenn Beck show. All of the proceeds support the legal defense of former Border Patrol Agents Ramos and Compean, who were both prosecuted and persecuted for shooting and wounding an illegal alien drug trafficker. Compean and Ramos are currently serving 11 and 12 year sentences in solitary confinement. They have been treated like criminals for trying to protect our nation’s borders and Ramos has already been seriously assaulted and injured by illegal alien inmates after the Bureau of Prisons managers failed to properly protect him. United States Attorney Johnny Sutton is still attempting to justify his vicious prosecution of these agents, in which he misapplied a sentence enhancer. This sentence enhancer is usually applied in cases to aggravate a felony when committed with the use of a weapon by “would be law breakers”, for example; bank robbers or drug dealers. If they continue to misapply this sentence enhancer, all law enforcement officers are carrying a 10 year penalty enhancer on the job daily. Your support is greatly appreciated not only by the former Agents but their families also.

The above shirt can be ordered from Glenn Beck by clicking here.

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A CHANGE IN THE BORDER PATROL MISSION???

On August 16, 2007, in a news article published in the Laredo Morning Times, Chief Patrol Agent Carlos X. Carrillo of the Laredo Sector was quoted as saying, “The Border Patrol is not equipped to stop illegal immigrants.” It goes on to read, “Noting that illegal narcotics are also not on the agents’ priority list.”, and he further emphasized “The Border Patrol mission is not to do any of those things.” He continued by stating that the mission of the Border Patrol is to protect the country from terrorists and terrorist weapons and he goes on to say that if terrorists come into the country, agents will be ready. His comments have drawn sharp criticism by several sources including some in the Congress of the United States. It defies common sense for someone to understand how a terrorist entering the country illegally would be caught, if this is in fact no longer a priority with regard to the mission of the Border Patrol. This would be a contradiction according to CPA Carrillo if the Border Patrol no longer takes an interest in apprehending illegal immigrants. Obviously, after making these statements CPA Carrillo has attempted to retract and replace his statements with more suitable comments. The difficulty in this lies in the fact that once a word is spoken it is hard to redirect a statement that is controversial and will draw criticism. This statement does demonstrate some semblance of agreement with Chief Patrol Agent Aguilar’s support for comprehensive immigration reform.

Homeland Security Secretary Chertoff Apologizes in Advance for the Enforcement of the United States Immigration Laws. On June 30, 2007, “But Mr. Chertoff warned ‘You will continue to see heart-wrenching examples of families being pulled apart’ as he enforces existing laws.” Washington Times.
 It seems odd that prior to him becoming Secretary of Homeland Security, he was not aware that his job required him to enforce our nations immigration laws, among the many other statutes of the United States Code that his organization is tasked with the enforcement of. Most people prior to the acceptance of position usually make sure that they are willing to accept the responsibilities placed upon them by that position. His words of compassion as written by the Washington Times do not instill confidence in the people of the organization that he leads, nor does it demonstrate the required zeal with which the officers of his organization are required to perform their duties on a daily basis. This compassion that he so aptly demonstrates through his comments to the Washington Times, if demonstrated by an officer of his organization would result in one of two potential outcomes:

1. A lengthy prison term for knowingly allowing an undocumented alien to walk away from you in violation of our nations laws.

2. Termination of employment from the organization that they work for, for malfeasance. Blatantly failing to take action and enforce the laws, when as an officer they are confronted with a violation of the laws that they are responsible for the enforcement of.