NTEU TIGHTENS GRIP ON $300 MILLION DHS BACK PAY DOLLARS
Yes, we have written about this before. But the wins keep on coming for NTEU in its long-term fight overtime with DHS/CBP and this is shaping up to be the biggest back pay case in federal sector history. It may also turn out to be the biggest case of agency non-compliance with FLRA ever.
This week FLRA upheld another arbitrator’s decision in the union’s fight to squeeze every ounce of enforceability out of the rights found at 5 USC 6101 and 5 CFR 610. The basic dispute arose when the Commissioner of the old US Customs Service authorized agency managers soon after the 9/11 tragedy to ignore the employee guarantees in law and regulation in order to provide greater coverage at the borders. Specifically, he allowed local managers to schedule employees to start work at a different time every day of the week if they wanted and to split employee days off so they would not have two consecutive days off in a week. Rather than base the waiver of employee 6101 protections on a detailed economic analysis showing how uniform start times and consecutive days off hurt the agency, the Commish just proclaimed that to be so.
Arbitrators soon found that the shallow, fact-free basis for the decision did not meet the requirements of law and ordered that employees be given retroactive overtime pay. More specifically, they ordered that employees receive a day’s worth of overtime pay for each week they were denied consecutive days off. They also said that if an employee typically worked from 8 a.m. to 4:30 p.m. during a week but on two days in the week was assigned to work from noon to 8:30 p.m. that the employee must receive four hours overtime pay for the hours he should have worked but did not.
Although the grievance was filed in 2005, the union negotiators managed to convince an arbitrator to order back pay for the previous six years rather than the more typical order that back pay start 15 days before the grievance was filed. Union national staff also persuaded the arbitrator to grant overtime pay rather than simple straight time compensation, and structured the grievance so that it is nearly impossible for the agency to appeal the FLRA decision to a court, and convince the arbitrators to waive the statutory limit on the amount of overtime a CBPO can earn in a single year, namely $35,000. Filing and winning it based on nationwide claims of violations also makes this case unusual.
By our estimate, and this is only an estimate, Customs and Border Protection owes around $300 million in back pay to thousands of current and former Customs and Border Protection Officers (CBPOs). That would make this the largest back pay award for a single bargaining unit in federal sector history. Here is how we get to that figure. Journeymen CBPOs are GS-12 employees who earn about $35.00 an hour. Under a special statutory authority their overtime is paid as double-time rather than time and one half. So, if a CBPO is entitled to only 100 overtime hours a year, which is about one split weekend a month, s/he would be entitled to around $8,000 in back pay for a single year. Now let’s assume that only one-half of the 13,000 or so unit of CBPOs were involved. Over a year that amounts to over $50,000,000 in back pay due. While arbitrator orders require retroactive pay dating back to the beginning of this century, these assumptions need only be correct for six year to hit the $300,000,000 figure. On top of that employees get interest on the back pay owed. (If you are wondering what the total is if all CBPOs were entitled to at least 100 hours of overtime pay for each of ten years, then the answer approaches a billion dollars.)
This money will likely be paid to any CBPOs who worked between 9/11/01 and whenever the case settles or the agency stops ignoring the requirements of 5 USC 6101 and 5 CFR 610. Not only would this likely include retirees, but those who have retired will be able to also demand a retroactive adjustment to their retirement checks because CBPOs are also covered by a special overtime law. That law gives CBPOs credit toward increased retirement annuities based on the amount of overtime they earn toward the end of their career. That is a highly unusual benefit in the federals sector.
And just this week FLRA upheld another arbitration decision which undermined the agency’s attempt to correct its deficient justification for deviating from 5 USC 6101 obligations. While the arbitrator held that the agency’s economic study was adequate, he said it would not suffice to justify 6101 deviations everywhere. He said that they agency would have defend its newest justification in each of the over 300 ports around the country, and, if it could not, CBP had to continue to give CBPOs retroactive overtime pay at the double time rate. Litigating those claims likely could fund a small private law firm for a decade. They should exceed the very sizeable attorney fees the union should get from litigating the bundle of cases to date. Could it be over a million itself?
If DHS/CBP wants one more chance to overturn the FLRA decisions upholding about a half-dozen arbitration awards NTEU has orchestrated it has to refused to comply and force FLRA to take it before a judge. That chances of that succeeding are small and the extra delay will only increase the back pay checks that are now headed for current employees, former employees, retirees and estates of retirees.
If DHS/CBP wants to end this litigation agency, it needs to sit down with the NTEU negotiators and work out a settlement for dimes or quarters on the dollar. Otherwise, CBP’s border protection budget will have to be reduced to cover the huge back pay checks employees are due.