NTEU’S JUNK YARD DOGS FIND MILLIONS-AGAIN
Junk yard dogs are famous for never letting go once they sink their teeth into something–no matter how hard the victim struggles and fights back. A good union needs a few of them around, especially the shrewd ones with lots of fighting experience, to deal with the more complex threats—like the one that NTEU ran into soon after September 11, 2001. At that time, the Customs Service made vast unilateral changes in how Customs Inspectors were assigned to shifts, allegedly to boost security. When Homeland Security was formed the Customs and Border Protection Service did the same thing to the CBP Officers. NTEU filed standard ULP grievances, but lost them all. That’s when they let the dogs out.
Rather than walk away with their tail between their legs and employees getting senselessly yanked around constantly with last minute shift changes in the middle of the week, union negotiators filed a national grievance charging CBP with violating the requirements of 5 USC 6101. The grievance specifically targeted the management practice of not giving CBP Officers two consecutive days off each week or the same start time each day of the week. Management made it almost impossible for employees to plan for child care or have private lives—not to mention screwing with their sleep cycles. The union argued that while the law gave management the authority to do that, it first had to develop a detailed economic analysis justifying the move—but CBP had not.
The union took the case to arbitration when CBP failed to make even a weak attempt to settle. In fact, it took the dispute to three arbitrators because when Homeland Security was formed and CBP structured, employees from three pre-existing bargaining units were merged under the CBP umbrella—forcing NTEU to argue the case three times. It has won all three and now the first of those has worked its way through the FLRA exception process.
While CBP threw up a number of arguments in hope of a miraculous, Hail Mary-type, comeback, it lost them all. The most intriguing for anyone pursuing future 6101 disputes is how do you remedy a situation where for the last dozen-plus years management has given employees shifts where their two days off a week were perhaps Tuesday and Friday, rather than consecutive as the law requires? Or when management also had that employee start work at 6 AM Monday and Thursday, 11 AM on Wednesday and Friday and 2 PM on Sunday? The agency argued that so long as the employee only worked 40 hours a week s/he was not entitled to back pay. NTEU’s dogs were not about to let agency leaders go without paying a penalty after working years to track them down and pull them out from under the dripping wreck that their defense arguments were.
NTEU proposed two simple formulas the agency could use to identify for each of its over 15,000 CBP Officers the hours of each day and week going back to about 2002 for which its owes the employee overtime. The formulas are so simple they can be programmed into a computer and applied to the years of time sheets the agency had to maintain until this case was resolved. Simply stated, if the CBP Officer should have worked a 6 AM to 2 PM shift one week, but for two days that week worked a 8 Am to 4 PM shift, then s/he is owed overtime for the two extra hours he would not have worked but for the violation of law. If the employee was assigned non-consecutive days off, one of those days should be compensated at an overtime rate because but for the violation of law, the employee would not have worked that day.
Although this new FLRA decision only covers one of the three 6101 cases NTEU has pursued, it will be interesting to watch what happens next. From what we can see, CBP has no righto appeal further. If it wants to get to court, it will have to refuse to comply, and hope that a federal judge is willing to overturn FLRA as part of an enforcement or contempt proceeding FLRA will likely bring.
However, we are going to keep our fingers crossed that CBP uses this case to work out the first of several settlements involving 6101 and other multi-million dollar cases. Ideally, it finally agrees to sit down with NTEU and end its “All-litigation-all-the-time” approach to labor relations by agreeing on a dollar figure, a very large dollar figure, that compensates through an uncomplicated formula the thousands of employees (and former employees) whose lives were substantially disrupted for more than a decade. CBP had a chance to settle this soon after the litigation began in 2002, and again in 2006 when the 6101 grievances were filed, and again when the arbitrators began ruling against CBP on the 6101 claims, and again when CBP and NTEU sat at a term bargaining table for three years talking about shift assignment practices, and again when FLRA upheld the first 6101 arbitration decision prior to the creation of the remedial formulas, and again any day of the last decade that it wanted to. A settlement at any of those points would have benefitted taxpayers and perhaps helped the miserable morale at CBP for even the high attrition rate. Or CBP can continue to resist and be dragged kicking and screaming to the point where it will likely have to write a nine-figure check to pay for a long-term “kick-the-can-down-the-road” strategy implemented by executives and managers who left long ago.