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I.  HOW TO FILE AN UNFAIR LABOR PRACTICE CHARGE

A.    What is an unfair labor practice charge?

An unfair labor practice charge (ULP) is an allegation that an agency (or a union) has violated one or more subsections of 5 USC Section 7116(a). 

B.  Who can file a charge?

Any individual, labor organization or agency can file a charge.  An individual filing charges on behalf of the union must be authorized by the union to file charges. 

C.  When do you file a charge?

The time limit for filing an unfair labor practice charge (ULP) is six months, and it must be received in the appropriate regional office of the Federal Labor Relations Authority (FLRA) before the time limit expires. The postmark date means nothing; the time limits keep running until the charge is in the FLRA’s hands.  By law, this six month time limit cannot be extended.  A charge can be delivered in person, by regular mail, by certified mail, or by commercial delivery (such as UPS or Fedex), or by fax.  However, if the charge is filed by fax, it cannot exceed two pages.  If you file the charge by fax, do not send another copy by mail.  It just confuses the heck out of the FLRA Regional Office, and sometimes the same case ends up with two case numbers! 

The information presented here is intended to serve as broad practical guidance for the National Border Patrol Council union member.  This page is not intended to provide technical guidance to union representatives on grievance processing procedures.  Union representatives seeking technical guidance should contact their Lead Station Representative or the Vice President assigned to their respective Border Patrol Station. 

The basics

Simply put, a pure grievance is a litigation method by which the union seeks to address specific or general alleged violations of the collective bargaining agreement (other grievance types mainly deal with disciplinary actions).  Grievances vary in complexity from the most mundane of matters to very intricate, complex, and multi-jurisdictional matters.   Although grievances allege a violation of some type in respect to specific negotiated provisions of the contract, that is always not the case.  Grievances can actually encompass just about any issue related to conditions of employment.  Conditions of employment is a very broad category of issues ranging from locker sizes to deadly force policies.  This page is intended to provide information to the union member on how to have their individual claim reviewed for union litigation.

The objective of a grievance is twofold.  First, it seeks to protect the negotiated provisions of the contract and the bargaining unit as a whole.  Second, it seeks some type of remedy for the affected individual.  The remedy may be in the form of a promotion, lost wages, reassignment, detail, or some other method of making the aggrieved party "whole."  Grievances never seek punitive damages as they are not provided for under existing labor law. 

What to do if you think you have been aggrieved

  • Document everything related to the suspected grievance.

  • Review the negotiated agreement to see if the Agency violated any sections of the agreement.

  • Contact a certified union representative within 10 days of the alleged grievance (the union only has thirty days from the date of the alleged violation to file a Step I grievance.)

    • The union representative will conduct a preliminary review of the matter.  He may ask you to fill out a union complaint form.  Failure to complete the form will result in a delay of the processing of your grievance.  In many cases, it will result in a "non-review" of your matter. 

    • Please note:  The Union rarely entertains anonymous grievances.

  • The union representative will consult with the lead union representative assigned to your Border Patrol Station. 

  • The union representative will respond to your inquiry regarding the weight of your grievance.  At that time, he or she will inform you whether or not the grievance will be pursued and on what basis it was accepted or rejected. 

    • Once the union has accepted the grievance, only a union representative can modify or withdraw the grievance.  Additionally, only the union can seek to settle the grievance. 

  • The grievance will be processed according to internal union procedures and Article 33 of the contract, beginning with a Step I filing (informal), unless otherwise provided by the contract. 

What to do if your grievance request has been rejected by the union:

A grievance may be rejected by the union for many reasons.  There may not actually be a violation of the contract or the alleged grievance may be harmful to the good of the membership as a whole. In some cases, your grievance allegation may actually be an Unfair Labor Practice Complaint.  Either way, you, as a member of the Union have a right to not only be told the exact reason for a rejection, but to also appeal that rejection to higher union authorities. 

If you feel that your request for a grievance has been inappropriately rejected, do the following:

  • Immediately contact the lead union representative of your Border Patrol Station.

    • If he or she is not available, contact an National Border Patrol Council, Local Executive Board member as soon as possible.  Be sure to have the completed union complaint form ready to be faxed upon request. 

  • Explain your situation using only facts.  Also, explain your reasons for disagreeing with the initial determination.

  • Allow a day or two for review of the alleged grievance.

    • A definitive answer, including reasoning, will be provided to you.

  • Please note:  This appeal procedure is internal and not provided for by law, contract, or any other obligation.  There is no appeal procedure beyond this step.  The decision of the higher union official is final.

DATE

  CHARGES PROPOSED DISPOSITION RC
03/06  

I. On-duty Conduct Unbecoming a Border Patrol Agent

5 Days

Reduced to Letter of Reprimand (LOR)

R
11/05 1

I. Failure to Properly Safeguard Government Issued Badge and Credentials

1 Day

Reduced to a LOR

R
  2

I. Failure to Properly Safeguard Government Equipment

2 Days

Reduced to a LOR.

R

10/05

 

I. Improper Retention of Cash Received While on Official Travel

(TravelGate - 15 Agents in SDC)

30 Days

Two agents completely exonerated. 

With regards to the 13 other agents, the arbitrator directed the Agency to reduce all of them to a LOR.

A

09/05

1

I. Failure to Comply with Policies Governing the Use of Issued Travel-Card

5 Days

Reduced to 1 day.

Agent reimbursed 4 days of pay.

S

2

I. Failure to Exercise Due Care in the Operation of a GOV

5 Days

Reduced to 1 day.

Agent reimbursed 4 days of pay.

S

3

I. Insubordination - Failure to Obey a Supervisor's Direct Order

1 Day

Case dismissed.

Agent reimbursed 1 day of pay.

S

4

I. Failure to Comply with Agency Policies

5 Days

Reduced to a LOR.

Agent reimbursed with 5 days of pay.

S

5

I. Failure to Exercise Proper Caution in the Operation of a GOV...

II. Failure to Report Vehicle Damage.

III. Lack of Candor

3 Days

Charges II and III dismissed.

Penalty sustained.

S

  6

I. Off-Duty Conduct Unbecoming a SPA - Wet Reckless

5 Days

Sustained (5 Days is the minimum for DUI related)

W
  7

I. Failure to Exercise Proper Caution While Handling Agency Approved Firearm

14 Days

Sustained (14 Days is the minimum for A/D where potential harm to public exists)

W
  8

I. Off-Duty Conduct Unbecoming a SPA - DUI

5 Days

Sustained (5 Days is the minimum for DUI related)

W
  9

I. Negligence Resulting in the Loss of Gov't Issued Property

7 Days

Sustained (Several Priors)

W
10

I. Failure to Properly Report Incident to Supervisor

5 Days

Sustained (Agent left no contact information)

W

  11

I. Conduct Unbecoming a SPA

4 Days

Sustained (Agent created nexus by presenting his badge to the PD)

W
  12

I. Off-duty Unbecoming a SPA (DUI related)

5 Days

Sustained (5 Days is the minimum for DUI related)

W

07/05

1

I. Negligent Operation of a GOV

1 Day

Reduced  to a LOR.

Agent reimbursed 1 day of pay.

S

2

I. Inappropriate Conduct Towards a Supervisor and Co-workers

2 Days

Reduced to a LOR.

Agent reimbursed 2 days of pay.

S

3

I. Failure to Safeguard BPA Badge and Travel Card

1 Day

Case dismissed.

Agent reimbursed 1 day of pay.

S

4

I. Unauthorized Use of Government Procured Rental Vehicle

3 Days

Case dismissed.

Agent reimbursed 3 days of pay.

S

5

I. Failure to Properly Safeguard Service Issued Badge and Failure to Timely Report the Loss.

2 Days

Case dismissed.

Agent reimbursed 2 days of pay.

S

6

I. Inattention to Duty Resulting in Damage to Civilian Vehicle.

II. Failure to Follow Supervisory Instructions.

2 Days

Case dismissed.

Agent reimbursed 2 days of pay.

S

7

I. Failure to Comply with Personal Radiation Detector Policy and Procedures

1 Day

Reduced  to a LOR.

Agent reimbursed 1 day of pay.

S

8

I. Non-compliance with Personal Radiation Detector Policy and Procedures

1 Day

Case dismissed.

Agent reimbursed with 1 day of pay.

S

  9

I. Failure to Comply with Personal Radiation Detector...

1 Day

Case dismissed.

Agent reimbursed with 1 day of pay.

S

10

I. Non-compliance with Personal Radiation Detector Policy...

1 Day

Case sustained.

W

11

I. Failure to Properly Safeguard Government Issued Property

2 Days

Reduced  to a LOR.

Agent reimbursed 2 days of pay.

S

12

I. On-duty Conduct Unbecoming a BPA

1 Day

Case dismissed.

No reimbursement since case was mitigated to LOR after Union's response. 

S

  13

I. Failure to Safeguard Gov't Property

1 Day

Sustained

W
  14

I. Failure to Follow Supervisor Instructions

1 Day

Sustained

W
  15

I. Failure to Comply with Station Processing Procedures

7 Days

Sustained

W

06/05

1

I. Disruptive Behavior

II. Failure to Immediately Report Incident

1 Day

Charge II dismissed.

Reduced to a LOR.

Agent reimbursed 1 day of pay.

S

2

I. Failure to Call In or Report For Assigned Shift

II.  Inaccurate Reporting of Hours Claimed On Time and Attendance Report.

III.  Inappropriate Claims on Travel Voucher

IV. Conduct Unbecoming A BPA

10 Days

Charges II, III, and IV dismissed.

Reduced to a 3-day suspension.

Agent reimbursed 7 days of pay.

S

3

I. Failure to Exercise Due Care in the Operation of a Service Vehicle...

II.  Inattention to Duty

1 Day

Charge II dismissed.

Penalty sustained.

S

4

I. Failure to Exercise Proper Caution While Operating a GOV...

2 Days

Reduced  to a LOR.

Agent reimbursed 2 days of pay.

All reference to failing to terminate pursuit and unproven pursuit violation removed from case/file.

S

5

I. Disruptive Behavior

II. Failure to Immediately Report Incident

2 Days

Charge II dismissed.

Reduced to a LOR.

Agent reimbursed 2 days of pay.

Various unproven allegations removed from case/file.

S

6

I. Conduct Unbecoming a SPA

2 Days

Reduced to a LOR.

Agent reimbursed 2 days of pay.

Agency will reconcile UCMC policies with relevant Agency policies to protect agents from liability.

Agency will provide agents with a copy of the reconciled policy and training prior to assigning agents to UCMC or initiating future disciplinary actions related to an alleged violation of UCMC policies.

S

7

I. Failure to Exercise Due Care of a Service Vehicle...

2 Days

Reduced to a LOR.

Agent reimbursed 2 days of pay.

Agency will provide reflective markings along dangerous curves where accident took place.

S

8

I. Failure to Call in or Report for Assigned Shift resulting in AWOL

2 Days

Charge changed to: Failure to Call in or Report for Assigned Shift.

Reduced to a LOR.

Agent reimbursed 2 days of pay.

S

9

I. Noncompliance with Service Arrest Policy

II. Failure to Contact Supervisor

2 Days

Case dismissed.

Agent reimbursed 2 days of pay.

S

10

I. Negligent Operation of a GOV...

1 Day

Reduced to a LOR.

Additional stipulations not cited for privacy.

S

06/04

 

I. Improper Retention of Promotional Benefits While on Official Travel

(TravelGate - 10 Agents in SDC)

30 Days

After written and oral response by the Union, cases were dismissed. No pay lost.

R

05/04

 

I. Improper Retention of Cash Received While on Official Travel

(TravelGate - 2 Agents in SDC)

Termination

During the oral response, the Union presented solid evidence to support the agents' innocence.  Consequently, the Cases were Dismissed.

R

Explanation of Dispositions:

► LOR: Letter of Reprimand

► Case Dismissed: All references to the incident, proposals, etc. will be removed from the agent's OPF and the case will be considered closed.

► Prior to DHS, there was a two year reckoning period and after the two year period, the priors were removed from the employee's personnel folder. However, under the unilaterally implemented DHS policy concerning disciplines, all priors will be maintained indefinitely to be used in future actions.  There still remains a question whether or not this policy will apply to Letters of Reprimand and until the Union hears otherwise, we will continue to operate with the belief that a LOR will remain in the agent's file for the remainder of the agent's career.

Resolution Codes (RC): These codes identify the stage of the process where the case was resolved.

A:

Arbitration

R:

Response (oral/written) by the Union and/or discussions prior to requesting arbitration.

S:

Settlement discussions between after requesting arbitration.

W:

Withdrawn (Arbitration request withdrawn by the Union)

Special Reports.

OT Lawsuit

If you are a border patrol agent who is a member of the NBPC union, click here for info to sign up for the overtime lawsuit.

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