NTEU TRIPS ITSELF UP ON CBP DISPUTE

When Customs and Border Protection management decided to install new work stations for officers inspecting travelers, NTEU asked to bargain, and one of its demands was that officers be allowed to sit while reviewing travelers’ documents. The agency declared that non-negotiable on the grounds that it excessively interfered with its management rights to determine internal security. NTEU filed a negotiability petition. At about the same time the agency decided to remove any doubt about officer’s rights to sit or suggestion there might be a past practice of allowing that.  So, it issued a memo announcing that effective immediately officers were to stand while inspecting folks. NTEU filed a ULP with FLRA over that. Once FLRA heard about the ULP, it dismissed the union’s negotiability petition on the issue. Any idea why?

Here is the core of the FLRA decision explaining the rule NTEU violated:

Here, the pending ULP charge alleges that the Agency violated § 7116(a)(1) and (5) of the Statute by unilaterally implementing the directive.  And, according to the Union, the directive changed employees’ conditions of employment by requiring officers to “stand up” when speaking to travelers or when conducting certain law‑enforcement duties. Proposal 1, at issue here, similarly concerns whether officers can sit or stand when performing passenger inspections.  Specifically, Proposal 1 states that the Agency “will provide ergonomically appropriate chairs, stools, etc. to be used while [o]fficers inspect passengers after they have accessed the automated kiosks.  Nothing in this provision prevents [o]fficers from standing while they inspect passengers if that is their choice.”^]  The parties agree that the purpose of Proposal 1 is “to allow officers the option to sit or stand – at their discretion – while inspecting passengers.” The pending ULP proceedings could resolve whether the Agency has an obligation to bargain over proposals related to whether officers sit or stand.  And because Proposal 1 relates to whether certain officers can sit or stand, the resolution of the ULP proceedings could render issues raised in the instant negotiability appeal moot.  Thus, we find that the ULP charge concerns issues directly related to Proposal 1, and we dismiss the petition with regard to Proposal 1, without prejudice, under § 2424.30(a) of the Authority’s Regulations. See NTEU and DHS, CBP, 69 FLRA 355 (2016)

Although NTEU tripped over one of the foundational roots of ULP law, the Authority may have done it a favor. If the issue of whether officers could sit while doing their job was decided in the negotiability forum the agency could make just about any wild claim it wanted that sitting violated management rights and get away with it. Why? Because the Authority has said (and said again in this case), “we will not examine the extent to which the policy or practice adopted by the Agency to achieve its security objectives actually facilitates the accomplishment of those objectives.” In other words, evidence and logic are not issues for FLRA in negotiability disputes. That is a tad of an overstatement, but not by much.

In contrast, if the case goes before an ALJ the agency will have to provide some evidence that reviewing travelers’ documents threatens CBP’s internal security or some other management right. The agency now appears to be arguing that sitting blocks an officer’s view of the travelers’ feet, knees and thighs—and that threatens to seriously undermine its ability to meet its mission. So, NTEU arguably is better off thanks to a little bit of litigation luck.

Of course the downside of filing a ULP in any case with FLRA rather than an arbitrator is that the FLRA General Counsel may not consider the case significant enough to pursue. If that happens, the case is over. Or, even if the case goes to an ALJ hearing, the GC attorney may not ask for anything more than a paper posting as a remedy when the union might want a tougher remedy. For example, if the unilaterally implemented order to stand causes some employees to take sick leave or deny overtime assignments they might not have if permitted to sit, the union could ask for back pay and turn that into tens of thousands of attorney fee dollars for its national treasury. That is a very hard claim to win if the FLRA attorney does not want to push for that before the ALJ and given that the FLRA attorney is the lead counsel.

Although we recognize that agencies with billion dollar plus budgets have never shown any concern about attorney fee bills, that could be changing. In our experience, simple back pay grievances often result in attorney fee bills of $25,000 to $35,000.  However, not long ago we noticed one union awarded fees of $194,412., $177,650., and $133,378 in three seemingly related and simple concurrent grievance cases.  If fees start coming in with six-figure dollar amounts and pile up like these three cases, we assume that will get some media interested in how an agency is allowing taxpayer dollars appropriated to protect homeland security or some other federal mission are actually going to build attorney’s bigger backyard pools or cover the union’s costs in the cases they lose.