TENS, IF NOT HUNDREDS, OF MILLIONS IN BACK PAY COMING TO CBP OFFICERS
In the chaotic aftermath of 9/11, the U.S. Customs Service made a lot of questionable decisions trying to boost America’s protection. That should have been a surprise to no one, was understandable and we are glad it put citizen safety first. But as the months wore on after the attack, the employee’s union, NTEU, pointed out that the agency had violated employee rights by scheduling tours of duty without giving employees two consecutive days off each week and/or assigning them to a constant shift starting time in a single week. The agency rejected the union’s advice, forced it to file a grievance which NTEU won, and now FLRA has blessed the arbitrator’s decision, making everything final absent some bizarre agency maneuver. The decision grants thousands of harmed employees around 15 years of back pay for every week (around 780 of them) their statutory entitlements were illegally denied them. As best we can tell from afar, this should be well over the $100,000,000.00 mark, putting it in the same territory as NTEU’s $500,000,000 back pay victory in the 70’s and its almost $300,000,000 “special rates” award. Super Congrats to NTEU for weaving its way through the obstacle-strewn path Homeland Security forced it to travel to protect employees.
As we understand it, if an employee was forced to split his/her two days off a week rather than take them consecutively, one of those days must now be compensated as an overtime day, e.g., if the agency assigned a tour where Wednesday and Friday were the employee’s two days off that week. Similarly, if the agency varied an employee’s starting time inside a single week, e.g., starting her at 8 AM for four days but at 10 AM on the fifth day that week, she will now get two hours overtime pay. That kind of scheduling can violate 5 USC 6101 if not done properly—and management did not do it properly. The award also seems to require the agency to adjust retirement accounts.
The significance of this win for everyone in the federal sector is that the union developed two back pay formulas that can be applied mechanically to the payroll records of the tens of thousands of employees involved over the 15 years to identify with virtual certainty how much each employee is due. Those formulas pulled the rug out from under management’s argument that the union’s remedy did not meet the Back Pay Act technical requirements for paying only harmed employees only what they are entitled to receive rather than loosely spreading money around. It also reduced the back pay administrative work to something a computer can do, with tiny exception. Check out NTEU, 68 FLRA 253 (2015).
The only remaining mystery in this case is why DHS/CBP management let this case grow into such a monster of a financial liability. The grievance was filed almost ten years ago if we are reading the record correctly. The first arbitration decision ruling against the agency came out in 2007. Since then three more decisions have been issued as the case worked it way through FLRA and the remedy phase of the arbitration hearing—none of which the agency won. The the agency negotiated a term contract with the union during the same period of time and still did not use any of those situations to either make this case “go away” or settle on a far more modest figure or formula than it potentially was liable to pay. It is our guess that executive after executive kicked the can down the road—and that is unfortunate for DHS and others who now must foot the bill, not to mention the thousands of employees who had to endure a decade and a half with very “family unfriendly” work schedules. We wish CBP and NTEU the best and that this case is the springboard for ending litigation as the only way to solve problems.
(And special congrats to Jonathan Levine and Steve Flig, two NTEU attorneys, who have spent a lifetime specializing in Customs/CBP matters, for all the patience they showed putting up with everyone involved in this case.)