OTP Case Information

AFGE has two cases concerning other than permanent (OTP) employees before Arbitrator Thomas Angelo. The first case is a grievance filed in 1997 regarding inspectors placed in inactive status. The second grievance concerns the Agency's failure to upgrade employees in accordance with Public Law 107-173. To get updates, please scroll down to locate the case that is relevant to your claim.

OTP II -2000

On December 21, 2000, Arbitrator Thomas Angelo (“Arbitrator”) issued an award finding the Immigrations and Naturalization Service’s (“Agency”) September 1997 Memorandum created new classifications for other than permanent (OTP) immigration inspectors. The memorandum placed OTP inspectors in four categories:

a) Those OTP inspectors who have refused to attend training will be placed in inactive status upon receipt of this memorandum and the termination process will be initiated no later than October 1 for failure to obey a legitimate order and failure to meet the basic requirements of the position they hold contrary to INS policy. These inspectors have no authority to carry firearms without the successful completion of firearms training ...

b) Those OTP inspectors who have been ready, willing and able to attend training, but have been prevented from attending for operational reasons, will be placed in inactive status upon receipt of this memorandum and no later than October 1. Pursuant to Instructions from the Deputy Commissioner, each district having such OTP inspectors is instructed to document which OTP classes each OTP inspector was ready, willing and able to attend...Such OTP inspectors cannot be returned to active status until they are scheduled for OTP training. The first day of active status will be the travel day [to training]. They have no authority to carry firearms until the successful completion of firearms training ...

c) Those OTP inspectors who have successfully completed the IOA, but did not successfully complete the firearms training, will be scheduled for the Substantially Equivalent Training Program when that is finalized. In the meantime, they do not have authority to carry firearms and cannot perform land and seaport inspections, nor any airport inspections that require the carrying of firearms.

d) Those OTP inspectors who have medical conditions that have prevented them from attending and/or successfully completing OPT training will undergo fitness-for-duty examinations by INS-appointed physicians. The examination process shall be initiated no later than October 1, and will include a determination whether the inspector can meet the requirements for admission/retention in FLETC-sponsored training. Upon receipt of this memorandum, the inspector will be placed in an inactive status pending resolution of these medical issues. The inspector must either receive medical clearance to attend training or the inspector will be removed from the OTP immigration inspector position.

The Arbitrator agreed with the Agency’s category “a” statements except to the extent it included employees who were not aware of, or who had requested, waivers following the “date certain” established in the September 19th memorandum. For category “b” employees, the Arbitrator determined that the cause for their inactive status was different than before and that conditions regarding a return to active status were new.

The Arbitrator considered the state of employees who fell into a category “c” and found that this aspect of the September memorandum did not violate the law or the MOU. For category “d” employees, the Arbitrator determined that, with respect to this category of persons, the American Federation of Government Employees (“Union”) has an interested in maintaining conditions of employment that conform to existing law, including the ADA. The Arbitrator further stated that the September 19th memorandum did not address the possibility of exported training or other methods of resolving medical issues for those employees in category “d”. The Arbitrator ordered INS and AFGE to identify affected employees who fell under the Americans with Disabilities Act (ADA) and to address those employees’ rights. According to the Award, at least 46 employees were affected by the categorization created by the memorandum. The Agency filed exceptions to the award. The Federal Labor Relations Authority denied the exceptions and upheld Arbitrator Angelo's award requiring the INS to consider whether the inspectors identified by the Union could be entitled to a reasonable accommodation, and, if so, to provide such an accommodation.

AFGE is seeking back pay for all employees affected by the 2000 ruling. The arbitrator ruled on the parties' briefs  and has directed AFGE and the Government to identify all affected parties. For any person whose claim is unresolved, a hearing will be held. The parties are in the process of working with the arbitrator to confirm a block of dates to hold the hearings. For more information, please review the "Frequently asked questions"

Please check back for updates on the case.

Frequently Asked Questions

Arbitrator issues supplemental award in 1997 OTP grievance

Various upgrade grievances were filed throughout AFGE. AFGE submitted a motion before Arbitrator Thomas Angelo to consolidate the grievances, pursuant to Article 47C of the Master Agreement. Since all the grievances involve the same set of facts and circumstances, one hearing will be more efficient than several hearings. The arbitrator granted the motion. See the arbitrator's decision below:

http://www.afge.org/index.cfm?page=OTP&fuse=document&documentID=1808

 

Here are the Facts:

 

On May 14, 2002, President George W. Bush signed the Enhanced Border Security and Visa Entry Reform Act of 2002, also known as Public Law 107-173. Section (b)(1) of Section 101 of Public Law 107-173 authorized appropriations for INS staffing. It is the Union’s position that, based on the language of PL 107-173, all journeyman Border Patrol agents and inspectors, inspections assistants and support staff, who meet the requirements of the public law, should be upgraded in their position. As the employees were not upgraded, the Union filed a grievance.

 

The first AFGE grievance, on the failure of U.S. Customs and Border Protection (CBP) to upgrade OTP employees, was a regional grievance filed October 17, 2002 by Steven Weeks, eastern regional vice president of the NINSC. The grievance was filed on behalf of any and all WAE, OTP, Mixed Tour, Intermittent, or similarly affected Immigration inspectors in the Eastern Region who were not upgraded from a GS-9. The grievance asked for back pay from August 11, 2002. Arbitrator Angelo was assigned to hear the case.

 

Frank Stanczak then filed a national grievance on April 30, 2003. In the national grievance, AFGE requested that, in accordance with the Enhanced Border Security and Visa Entry Reform Act of 2002, Section 101(b), all journeyman Border Patrol agents and inspectors who have completed one year’s service, all inspections assistants and the support staff associated with the inspectors and inspections assistants, be upgraded in accordance with the law.

 

On September 8, 2005, the National Homeland Security Council (NHSC) filed a grievance against CBP stating that it had recently become aware that there were CBP inspections assistants “from more than one local and more than one region, who, to date, have failed to be upgraded to GS-7 and/or failed to receive back pay, as provided for under P.L. 107-173, signed by the President on May 14, 2002.” The grievance requested back pay at the GS-7 rate for all inspections assistants, retroactive to October 1, 2002, and front pay for all future periods.

 

On January 13, 2006, a member filed an employee grievance against CBP contending that the Agency has violated, “in an ongoing fashion since on/about October 1, 2002,” P.L. 107-173 by failing to upgrade her as an inspections assistant, from a GS-6 to GS-7. The grievance also claims the agency has violated Article 11 of the Master Agreement and 5 USC 2302.

On January 19, 2006, another member filed an employee grievance against CBP contending that the Agency has violated, “in an ongoing fashion since on/about October 1, 2002,” P.L. 107-173, by failing to upgrade her as an inspections assistant, from a GS-6 to GS-7. The grievance also contended violations of Article 11 of the Master Agreement and 5 USC 2302.

 

The Agency agrees that Arbitrator Angelo is the appropriate authority to hear the issue of consolidation of the grievances.

 

Arbitrator Angelo granted the Union's motion to consolidate the cases. The Agency and AFGE have submitted briefs on the merits of the grievance. We are waiting for a ruling from the arbitrator. We expect the decision before the end of 2009 but it is not guaranteed. Please continue to check this website for updates.  Click on the briefs below to read what the Union and Agency argued before the Arbitrator.

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