FOR IMMEDIATE RELEASE
May 15, 2006
Emily Ryan
(202) 639-6421

AFGE Win Paves Road for Restoration of CBP Firearms Policy

(Washington)—In a case that could have far reaching implications, Customs and Border Protection’s firearms training policy is one step closer to being reinstated, thanks to the efforts of the American Federation of Government Employees. The U.S. Court of Appeals rejected the rational in a Federal Labor Relations Authority decision regarding a change in CBP’s said policy (AFGE, National Border Patrol Council v. FLRA, No. 05-1268). “This case has government-wide significance in that it overturns the very broad way the FLRA has misused the de minimis test to prohibit the union from bargaining over important working conditions changes,” said AFGE General Counsel Mark Roth.

AFGE represents border patrol employees within the Department of Homeland Security’s CBP Bureau. Before Congress moved those employees to DHS, they worked for the Immigration and Naturalization Service (INS). Basic Trainee Officers (BTO) must meet proficiency standards in firearms skills, physical fitness, and foreign language capability to stay on the job.

In 1996, AFGE and INS bargained over revisions to the firearms policy, including aspects dealing with training. The two also agreed to a Memorandum of Understanding (MOU), which required the agency to give AFGE notice and an opportunity to bargain over changes to the firearms policy. In 2002, INS revised that policy, reducing the number of authorized remedial hours for firearms-deficient BTOs from 80 to eight. INS did not notify, bargain with, or consult with AFGE. Claiming that INS committed unfair labor practices while revising its policy, AFGE filed a charge with the FLRA, which later found that a firearms training policy change by CBP did not have a greater-than-de-minimis-effect on the working conditions of bargaining-unit employees and so was justified.

AFGE petitioned the Court of Appeals for review of the FLRA’s order, challenging “the Authority’s application of the de minimis exception.” The court found in favor of AFGE, finding “despite accepting the fact that the CBP likely fired at least one firearms-deficient BTO without providing 80 remedial training hours, the FLRA appeared to require a showing that the policy change constituted the sole cause for the termination. Such an evidentiary requirement would fundamentally change the nature of the de minimis exception … The fact that one employee became termination-eligible due to firearms deficiency makes the likelihood of a future termination much greater … Accordingly, a greater-than-de-minimis effect exists when an employee has become eligible for termination due to a policy change.”

In its decision, the court also declared that “more than one alarm bell should have alerted the Authority to the fact that this policy revision had an appreciable effect on working conditions.”

“In light of the court’s condemnation of the FLRA decision, AFGE expects that the FLRA will now order the CBP to reinstate the prior level of firearms training that previously had been provided,” said AFGE Attorney Kevin Grile, who argued the case.

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