CBP’S HAIL MARY PASS BLOWN DEAD

You needn’t have stayed on top of federal sector labor relations developments over the last decade to know that Customs and Border Protection (CBP) is involved in a ton of litigation with the unions representing its employees, namely, AFGE and NTEU. Nor did you need high reading comprehension skills to pick up that the agency has lost almost every one of those fights before arbitrators and the FLRA. We have been wondering what the agency would do once it was out of appeal options and starring a few multi-million dollar back pay orders in the face, and we got our answer not long ago.CBP lost an arbitration case that ended in an order that in pay those employees who were receiving public transit subsidies all the money they lost when the agency suddenly cut fees in response to Congressional action, but refused to repay the cut funds in response to another Congressional mandate.

CBP appealed to FLRA and as happens with almost all those appeals, it lost. That should have been the end of the case because FLRA decisions on arbitration cases that do not involve ULP allegations are final and binding. There is no court review. Under the law CBP had to start issuing checks and negotiating attorney fees.

But, given that it ignored the law so many times before leading to the litigation landslide, we can’t think of why we expected it to suddenly follow the law. CBP surprised nearly everyone by asking a federal court to overturn FLRA’s decision. It was unquestionably the labor law equivalent of the NFL Hail Mary pass with no time on the clock. And like so many of them it wound up down, dead, and done. The court refused to even consider the appeal once it got FLRA’s defense of its decision.

Nonetheless, remember that CBP is an organization showing all the signs of a “kick-the-can-down-the-road” leadership philosophy. It likely sees the attractiveness of postponing resolution until the current leaders are gone and saddling future agency leaders with an even bigger financial burden or hoping that modest meteorites hit the two union headquarters buildings.

Don’t be surprised if CBP simply refuses to pay and forces the union to file a ULP charge to enforce the ruling. After all, that will probably delay payments another three years as the charge goes before an ALJ, the full FLRA, and then a federal appeals court, if not the Supreme Court. After that the federal marshals start slapping on the cuffs, but the only wrists they will find will be of executive and LR managers who were neighborhood teenage nuisances when these terribly wasteful decisions were made. The real culprits will be resting comfortably on an ocean-side deck adorned with award plaques they gave one another for resisting demands that they follow the law and worrying only about whether their age spots will get worse during the retirees’ pickleball tournament that afternoon where they will tell repeated stories about how employees did not work as hard for CBP as they did. No mention will be made of how poorly the agency scored year-after-year on the “Best Places to Work” survey.