ABA LABOR LAW UPDATE & THE CBP MUSHROOM CLOUD

For those of you out in our blogosphere who like to stay up with the latest twists and turns in federal sector labor law we recommend reading through the American Bar Association’s, “Update on Significant FLRA and Labor and Employment Decisions, 2015-16.” One of the more interesting cases it is following is NTEU’S fight with CBP. Several arbitrators have already ruled the agency owes employees tens, if not hundreds, of millions in back pay for overtime hours they never worked but should have been allowed to work, even though often no one was assigned to work for the times the union claims back pay. The agency appealed to FLRA but lost. Then it took most of those decisions to the U. S. Court of Appeals, only to be turned away. Most recently, NTEU has asked the arbitrators who issued the original decisions to rule on whether the agency is in compliance with their decisions, which brings all of us fed sector practitioners to the brink of some interesting potential case law developments. For example,

1. Is asking an arbitrator to rule whether an agency is in compliance with his original award the same as seeking an order that the agency has failed to implement an award in violation of 5 USC 7116(a)? It seems to us that when a union runs into as persistent a refusal to comply with an arbitration award as CBP is putting up, it needs a ULP finding that the FLRA can ultimately enforce through a court order.
2. If a union fails to pursue an enforcement ULP within 180 of learning that the agency refused to comply has it blown the deadline for ever enforcing the award?
3. Does an arbitrator have the power to order enforcement of his/her his own original award? After all, an enforcement issue requires that the arbitrator address a different issue and law, namely 5 USC 7116(a), than s/he was originally given authority to decide. Will this case tell us that moving from interpreting a contract or regulation and providing a remedy to attempting to enforce that award exceeds an arbitrator’s original authority—unless both parties agree to give that arbitrator the issue? Or is 7116(a) enforcement an issue an arbitrator can address when s/he has retained jurisdiction?
4. Given that the traditional way to enforce an arbitration order in the private sector is to get a federal District Court judge to issue an order or injunction and that only the FLRA General Counsel can seek an injunction does the union have to turn this case over to the GC to get the back pay checks its members are owed?
5. Is a judge going to allow CBP to bring up new arguments to overturn the arbitrator’s interpretations and/or awards that it never brought up before? Let’s remember that jurisdiction issues like a sovereign immunity defense generally can be brought up at any phase of a case. If CBP goes into court predicting a billion dollar liability for overtime work that no one ever performed is the size of the bill going to prime the court’s sympathy over how disruptive a payout could be to fulfilling the CBPmission? Remember the adage, “Bad facts make bad law.”
6. Will Congress get wind of how much of the Homeland Security budget might be syphoned off to fund these back pay awards and do something about it, thereby setting a precedent for Congressional meddling in any future arbitrations?

A mushroom cloud is a good graphic to convey the significance of these CBP cases. Ironically, given that CBP has pushed these cases to the point where the precise amounts each employee is owed is knowable, it has made it harder, if not impossible, for NTEU to settle for lesser amounts without igniting internal protests and possible duty of fair representation appeals. Stretching the payouts over several years might be the only way to lure management into compliance–and avoid so depleting a single year’s budget that employees lose the normal overtime hours they work each year to fund the back pay.  We can think of a few other novel settlement paths that avoid forcing employees to take less, but this is already long enough.

If these cases are not proof that there are still uncharted labor law waters for the fed sector practitioners to travel even after 35+ years, then nothing will. Stay tuned because the fallout will touch all of us.