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As reported almost a year ago, Customs and Border Protection (CBP) created the CBP Compensation Reform proposal and submitted it to Congress for consideration. In the proposal, CBP intentionally misled Congress with their assertion about creating uniformity with overtime systems used by CBP employees.  
 
Fortunately, Congress noticed the inconsistencies with the proposal and rejected it this year. Yet, Chief Fisher recently met with the chain of command in several sectors and told them how CBP intends to revise the proposal and submit it to Congress during the next Congressional session. According to sources, Chief Fisher said CBP made a backdoor deal with the Administration to guarantee it passes next year. One can only assume the deal probably involves further prohibitions on areas where agents are authorized to work, restrictions on duties they can perform, and dishonorable statements about the border being secure so the Administration can promote amnesty again. 

Nevertheless, one only needs to read the proposal to see the “uniformity” assertion is absurd considering Customs and Border Protection officers (CBPOs) will continue coverage under the Customs Officer Pay Reform Act (COPRA). Meanwhile, Border Patrol agents will be converted from Administratively Uncontrollable Overtime (AUO) to Law Enforcement Availability Pay (LEAP), exempt from earning Fair Labor Standards Act (FLSA), and still excluded from coverage under COPRA.

For this reason, the National Border Patrol Council created the following chart to address the frivolous assertion regarding uniformity and illustrate the significant disparity in potential overtime earnings under current systems and increased disparity under the proposal. The figures in the chart are based on the Office of Personnel Management locality pay table for the San Diego geographic area. Therefore, potential earnings will be different in other geographic areas.

Although all CBPOs may not average two hours of overtime per day, Border Patrol agents are required to work an average of two hours per day in order to maintain 25% under LEAP and AUO. Therefore, the figures for each pay grade calculate potential earnings for employees using an average of two hours of overtime per day for all employees. For clarification, COPRA provides 200% rate of pay for each hour worked beyond the regular eight-hour day. AUO only provides approximately 140% for each hour worked beyond eight hours, up to the first two hours. After two hours, the percentage decreases for each additional hour worked.

Lastly, COPRA provides substantially higher percentages for differential pay to compensate for work performed on Sundays and during night hours, to include more hours of coverage for night differential. COPRA also provides a one to five percent rate of pay for language proficiency, depending on the score an employee receives when tested. None of these differentials were included in the figures. If one were to include the different differential pay in the calculations, the disparity would be far greater than what is illustrated on the below chart.

High resolution PDF file: Pay Reform Comparison Chart or click on the chart below to view a larger image.

Pay Comparison Chart

Below is a link to the initial compensation reform proposal by Customs and Border Protection (CBP). CBP officials said the proposal changed last year, but would not provide a copy of the revised plan to representatives of the National Border Patrol Council (NBPC). The Department of Homeland Security did not provide a copy of this year's proposal to the NBPC nor did they consult with the NBPC prior to submitting it to Congress for consideration for fiscal year 2013 budget. Although the NBPC has an alternative plan, DHS, CBP, and the U.S. Border Patrol management have consistently refused to consider the alternative.

DHS Compensation Reform Plan

Department of Homeland Security (DHS) Compensation Reform Plan

Description of DHS plan:
The Department of Homeland Security (DHS) pay reform plan would substitute Law Enforcement Availability Pay (LEAP) for the current system of Administratively Uncontrollable Overtime (AUO) and Fair Labor Standards Act (FLSA) pay for all Border Patrol agents. This would eliminate all compensation for work beyond 10 hours a day and force them to work for free.

The DHS plan claims it will achieve uniformity in the current overtime system; however, that is not possible when DHS intends to leave Customs and Border Protection officers under the Customs Officer Pay Reform Act (COPRA).  CBP officers receive COPRA overtime for all hours worked beyond eight hours a day, which doubles their normal pay rate for overtime worked.

Disadvantages of DHS compensation reform plan:

•    Requires Border Patrol agents to work for free beyond ten hours a day.

•    Allows the agency to schedule agents to work an infinite amount of hours for ZERO compensation.

•    Reduces agents’ pay by an average of $7,000 a year (the only group of employees singled out for this sacrifice).

•    Reallocates the so-called savings of $110 million to fund more unnecessary levels of management and increased salaries for each level.

•    Further lowers morale.

NBPC Recommendation to Congress: Demanding that employees work for free is grossly unfair to frontline Border Patrol agents and their families.  All federal law enforcement agents make sacrifices every day to uphold the laws of the United States, however this plan singles out Border Patrol agents asking them to go above and beyond.  To date, 114 agents have made the ultimate sacrifice in the line of duty, more than any other federal agency.

On behalf of the 17,000 Border Patrol agents represented by the National Border Patrol Council (NBPC), Congress is urged to reject this ill-conceived proposal. The NBPC has developed an alternative plan that saves the government money, reforms the antiquated overtime policy currently used and protects the dedicated men and women of the United States Border Patrol.

FOR IMMEDIATE RELEASE

National Border Patrol Council Rebuttal to AP Analysis of Border Patrol OT

February 6, 2012 – On Sunday, millions watched the New York Giants and the New England Patriots in Super Bowl XLVI. Some watched their teams and hoped for victory, while others watched because they enjoy football and to see which team's strategy leads them to victory. Football fans understand that neither the Giants nor the Patriots would have made it to the Super Bowl if the teams decided to play less defensive players against teams that were less of a threat. Fans also know that the Giants would have lost the game if they decided to take the entire defensive line out of the game in the last minute in an effort to save money because they were winning. This same concept applies to the United States border and may help clear up any confusion for those who read the recent Associated Press article written by reporter Alicia A. Caldwell, titled "AP Analysis: Border Patrol OT up as arrests drop."
 
Although there are important parallels to sports and the border, the major difference is the United States only employs a defense and that defensive line is the U.S. Border Patrol. Unfortunately, many politicians lack the political will to implement an offense and career politicians in the Border Patrol practically eliminated the few offensive positions that once existed (interior operations and stations) and were too effective in the past. For this reason, the U.S. Border Patrol has to play into overtime every minute to defend against the constant threat posed by smugglers, cartels, and terrorists who are continually looking for opportunities to exploit weaknesses in the defense of the U.S. Unlike football, a gap in coverage does not just end a game, a season, or a chance at a trophy, it means an opportunity for terrorists, narcotics, weapons, or other contraband to be smuggled into the United States.

Northern border versus southern border

In the AP article, Caldwell questions the agency's use of the same overtime system for both borders (northern and southern). Caldwell presents the data regarding the number of agents and the total dollar amount paid in Administratively Uncontrollable Overtime (AUO). According to the data, AUO doubled when the number of agents doubled. This should come as no surprise considering AUO was designed to save the government money while at the same time providing 24/7 coverage on the border. Although the number of agents doubled, the Border Patrol still does not have enough agents to provide 24/7 coverage due to the existing strategy of defense and the lack of a good offense. As a result, AUO is still necessary to maintain a defensive line.

Caldwell presents the number of arrests for the northern and southern border and suggests the borders should be treated differently due to a variance in apprehensions. Although the southern border may have more apprehensions, both borders pose the same threat and require the same defensive line, regardless of apprehensions. The article fails to analyze the fact that there are only 2,237 agents responsible for defending 4,000 miles of northern border, whereas there are nearly 15,000 agents responsible for defending 2,000 miles of southern border. The so-called analysis seems to ignore how only 14% of the Border Patrol is employed to defend 65% of the U.S. border, a majority of which is very remote, out-of-sight from the general public, and not always patrolled due to insufficient staffing.

Reductions in arrests
 
If one were to cite a reduction in apprehensions as a critical part of the discussion, one should at least consider the reasons for the reductions.  One significant factor is the lack of jobs due to the economy. This factor is the most meaningful because it supports the argument the National Border Patrol Council has been promoting for years regarding an offensive strategy, which involves going after employers who knowingly hire illegal aliens and making it difficult for illegal aliens to obtain employment in the United States.

Another notable factor is the restrictions imposed on the authority of agents implemented by career politicians in the Border Patrol and Customs and Border Protection (CBP). In other words, when Border Patrol agents are directed to stay in one place, or prohibited from performing operations at transportation hubs or areas where illegal aliens are known to congregate, then apprehensions will decrease. In 1995, to justify Operation Gatekeeper with statistics and prove the success of the operation, Border Patrol management implemented numerous restrictions in order to decrease apprehensions in areas away from the border. The number of restrictions grew over the years with each new political appointed chief and commissioner. As expected, the number of apprehensions also decreased.

Although those factors impacted the number of apprehensions, the need for AUO on both borders continues for many reasons. Changes in policies and methods related to completing the necessary paperwork and entering detainees into computer systems have changed and substantially increased the amount of time it takes to process them. More importantly, while the number of people entering the country to seek employment may decrease, the threat does not decrease as the number of smuggling operations related to weapons, narcotics, and other contraband continues regardless of any proclaimed success.

Four shifts

According to the article, Border Patrol Deputy Chief Ronald D. Vitiello's said: "the Border Patrol is considering four shifts of ten hours. For those who are unaware, under four shifts, the number of agents will decrease during certain hours. Unfortunately, under the leadership of Chief Fisher, many stations implemented four shifts regardless of the decrease in manpower because under Chief Fisher's command, the budget takes priority over border security. As such, this is just one more factor to consider when discussing a decrease in apprehensions. Unlike football, where everyone can watch when the other team makes a touchdown, successful smuggling operations occur in remote areas, often go unnoticed, and are rarely viewed on a widescreen. Unless of course the smuggler films how he lifts the "secure" border fence with a jack like the recent YouTube video posted under the "Secure Borders News" section of www.nbpc.net.

More importantly, a reduction in the number of agents is unsafe and increases the likelihood of a U.S. Border Patrol agent being killed in the line of duty, regardless of what border they are defending. Although apprehensions have decreased, the number of agents dying in the line of duty will not decrease as long as smugglers have more rights than agents, and the costs of securing the border are more important than providing a secure border.

Law Enforcement Availability Pay

According to the article, Sharon Snellings, Customs and Border Protection's (CBP) deputy assistant commissioner of human resources said, "agency officials also are looking at shifting to another type of overtime system used by other law enforcement agencies that she said could save the agency about $70 million a year." 

The overtime system mentioned by Snellings is Law Enforcement Availability Pay (LEAP). LEAP only provides 25% on the base salary for an infinite amount of extra work.  LEAP is primarily used for criminal investigators and special agents who have a higher journeyman level pay than Border Patrol agents. Yet, the CBP proposal did not include increasing the journeyman level to match the level paid to other federal law enforcement officers under LEAP. LEAP was specifically designed to compensate investigators for the time they are available in an on-call status due to the variances in manpower, shifts, and the type of work performed. It clearly was not intended for 24/7 operations that required coverage at all times.

CBP claimed the purpose of the pay reform proposal was to provide uniformity with overtime systems within CBP. However, the CBP proposal does not change the overtime system used by CBP Officers. Instead, CBP officers continue to earn overtime under the Customs Officer Pay Reform Act (COPRA), which provides higher overtime and premium rates. So, uniformity under the CBP pay reform means CBP Officers will continue earning higher rates of overtime and premium pay, while Border Patrol agents will receive an immediate seven percent cut in pay and will be required to work excessive hours for free (Pay Reform Comparison Chart).

Alleged savings

Snellings claims a savings, but fails to mention how the savings will be used to provide a 25% pay increase to high-ranking management officials in CBP by placing them under LEAP, even though the majority of their job is administrative and requires little overtime. Much of the savings will undoubtedly go towards the unnecessary, redundant layers of management that have been added over the years. For example, since 2000, Border Patrol created two additional levels of management to the station chain of command: field operations supervisor and shift operations supervisor. Recently, Border Patrol announced the large station command structure, which multiplies the number of management positions in every large station.  Currently, Border Patrol is preparing to convert the station commander position to the Senior Executive Series (SES), which will result in every level of management receiving a pay increase, while they decrease the pay of their subordinates.

At the sector level, the Border Patrol added a division chief position between the assistant chief and deputy chief. Border Patrol also implemented a large sector command, which multiplied even more management positions. In addition, the Border Patrol created an adjutant position that is filled by a supervisory border patrol agent to serve as a secretary and chauffer for sector chiefs. Finally, in an attempt to be like the Department of Defense, the Officer of Border Patrol implemented the joint command structure, which added a new joint command chief to manage the many sector chiefs.

Therefore, if the Administration or Congress is interested in saving money in the Border Patrol, the first place to look is the excessive number of management positions that the Border Patrol created in the past ten years. In CBP, the Administration or Congress should demand a review of the many parallel kingdoms that were created when Border Patrol was placed in CBP. Two prime examples are Mission Support and Labor and Employee Relations. These two components compete with one another and should be merged to reduce the multiple layers of management that exists within each component.

The National Border Patrol Council and its members are committed to saving the government money and reducing the debt; however, these measures should not come at the expense of rank-and-file Border Patrol Agents by having them become the only federal employees in CBP sacrificing a seven percent cut in pay and working endless overtime hours for free.  This is exactly what will happen if Border Patrol agents are placed under LEAP. There are many other ways to stop excessive spending in CBP, but none of them will ever happen because they involve reducing the unnecessary layers of management that continue to grow at an alarming rate and eliminating or merging some of the parallel kingdoms that exist within CBP.

Months ago, the National Border Patrol Council proposed an alternative overtime system to the leadership of the Border Patrol and CBP. Under the proposed plan, CBP would acquire more flexibility and reduced costs related to overtime. However, CBP would not be able to make Border Patrol agents work endless hours for free. Remarkably, Border Patrol and CBP were not interested and instead continue to promote a proposal with misleading statements about uniformity and imaginary savings. For this reason, the NBPC is working with Congressman Silvestre Reyes to develop a better alternative to the impractical, inequitable, and punitive CBP proposal. The alternative must ensure Border Patrol agents are properly compensated for the endless hours they work to defend the country from the constant threat posed by smugglers, terrorists, and cartels.

For more information please contact George McCubbin, president at  This email address is being protected from spambots. You need JavaScript enabled to view it..

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The National Border Patrol Council is a professional labor union representing more than 17,000 Border Patrol Agents and support staff. The NBPC was founded in 1965, and is recognized as one of the most effective labor organizations in the Federal sector.

OT Lawsuit

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