House Budget Resolution FY 2018

Earlier today, the U.S. House of Representatives passed a Budget Resolution for Fiscal Year (FY) 2018, (H.Con.Res.71), by a vote of 219-206. Contained within the House Budget Resolution are policy proposals and spending cuts that, if left unchanged, could negatively impact retirement benefits and contribution amounts for current and/or future Border Patrol Agents.

Also today, the Senate Budget Committee passed its own version of a Budget Resolution for FY 2018. The Senate Budget Resolution does NOT contain policy or spending proposals that would negatively affect BPA retirement benefits or contribution amounts.

Today’s vote was expected by the NBPC, as it marks only one of the first steps in a very long and complex legislative process. The current budget resolution process is far from over and the NBPC will be working with lawmakers to reject the House Budget retirement cuts and instead adopt the Senate version as Congress works to put together a final, joint budget resolution. We expect these actions and votes to come in the near future.

Even IF the House and Senate both pass a joint budget resolution that contains retirement cuts, this will only trigger a different and new process known as "budget reconciliation." The budget reconciliation process contains numerous procedural steps and hurdles in Congress, and ultimately it will require President Trump’s signature for passage.

As always, the NBPC is closely monitoring all developments in Congress and we continue to aggressively advocate for BPAs on Capitol Hill. We will provide additional updates as the matter progresses.

2017 Executive Board Election Update

August 30, 2017

Dear Members of Local 2366,

As you may know, the 2017 election for Local 2366’s executive board began earlier this month, set to end on September 14, 2017.

A member raised a concern regarding the manner in which members were required to submit their ballots. Because our members live across a large area of Del Rio Sector and beyond, it can be difficult for members to vote; we do not have mailing addresses for many members and some are unable to visit a single polling station far from their home or station. To address these difficulties, the election committee allowed members to vote electronically, via mailed ballot, or via ballots distributed in mail drawers at stations. However, in order to ensure people did not vote twice, we required voters to include their names on the ballots. In our attempt to permit the greatest number of people to vote, we overlooked a rule within AFGE’s constitution which requires us to use secret ballots.

After consultation with AFGE, the election committee and AFGE have decided it is best to cancel the current election and run a new election, set to run in the near future on a date that is yet to be determined. Therefore, members are hereby notified that the current election is canceled. All ballots received – and those received by the election committee in the coming days – will remain unopened and will be secured and turned over to AFGE.

Since federal union elections can be rather complicated, AFGE will supervise the new election to ensure that all candidates’ concerns are addressed and to make sure we run an election which is above reproach.

We apologize for the inconvenience and will post information about the new election as soon as the election committee sorts out the details with AFGE.

Sincerely,

Local 2366 Election Committee

Help support a fellow agent

Click on the image below to learn more information about how you can participate in a bike ride in the Hill Country on October 21, 2017. Proceeds will go towards the medical bills for an agent's daughter who recently experienced a tragic accident.

Operational Mobility MOU has been signed

The Union and the Agency have entered into a MOU regarding Operational Mobility. This new MOU supersedes the Voluntary Relocation Program (VRP). This new agreement will meet the needs of the members better than any previous mobility agreement as it protects seniority, while also allowing junior employees to be considered for positions that they would have otherwise been ineligible for.

Some of the points include:

  • Employees must have a minimum of 3-years in service
  • Employees cannot have received a funded relocation within the past four (4) years.
  • Employees who are approved a reassignment under this MOU will be ineligible for reassignment to a new duty location under this or any other relocation program for a period of four (4) years, unless the relocation is for a promotion to a higher grade or positions outside of the bargaining unit.
  • Relocations will be announced at a minimum of twice annually contingent on funding; however the Agency may offer additional relocations.
  • The Agency will attempt to first fill vacancies under this MOU prior to filling vacancies under a re-hire program.
  • Announcements will be open for a period of at least ten (10) business days.
  • Employees will be required to submit a resume.
  • Employees may select up to two (2) locations per announcement.
  • Fifty percent (50%) of vacancies at each location will be selected based solely on seniority.
  • The remaining selections will be made from the list of the remaining applicants to the position.
  • Travel to the new duty station will be done in an “on duty” status and will be based on the current Federal Travel Regulations (FTRs).
  • A total of 40-hours of Administrative Leave will be authorized for the purpose of pre and post-moving requirements.
  • Funding will remain at the same amount as the VRP levels; however the funding may change based on GSA approval of requested increases.
  • Non-Funded Within Sector Permanent Change of Station vacancies will be announced to all sector personnel.
    • Employees seeking a non-funded move under this program will submit a memorandum for a move.
    • Approvals for such moves will be for available vacancies only.
    • WS-PCS relocations are voluntary and all relocation costs are the responsibility of the employee.
    • If a sector receives multiple requests for the same positions, selections will be based on the procedures outlined in Section H(6) of the MOU.

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!

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