THE REMEDY IN 5 USC 6101 CASES
As of August 17th, five of the last six FLRA decisions involved NTEU cases, including yet another one dealing with how work hours are set under 5 USC 6101 and 5 CFR 610. While FLRA has over 100 decisions involving the operation of 5 USC 6101 and its companion, the NTEU-Customs and Border Security cases involve the largest potential remedy of all of them—by far. A fair guess is that it will work out to a hefty nine-figure amount due to back pay obligations reaching back to the turn of this century. Of course, all that changes if the agency can find the silver bullet defense argument that defeats the union’s back pay claim—assuming there is one. CBP has not uncovered it yet in any of the more than half-dozen cases it has litigated with NTEU around the issues. It appears to have only one procedural option left, which is an extreme long-shot without the silver bullet defense. Stay tuned as this case unfolds. Perhaps the parties will settle for dimes on the dollar or CBP will start offering reward money for the winning argument that saves it hundreds of millions. P.S.
For those of you wondering what the agency did that generated such a massive potential back pay bill, we offer this very brief overview. Even though the law requires managers to give employees two consecutive days off a week and schedule them to start their eight-hour day at the same time in each day in individual work weeks, the agency can avoid those constraints if the agency head prepares a certain analysis justifying the deviations, e.g., giving an employee Tuesday and Friday off as her two days off per week and starting her at 8 AM three days and noon two other days. NTEU showed that CBP did not do an adequate analysis as required by law as well as failures to bargain changes. Consequently, it was required to pay the employees overtime for all the hours actually worked outside the normal work week they should have been scheduled to work. The agency has to refigure work schedules back to around the turn of the century.