IS CBP FUNDING NTEU?
No, at least not directly. FLRA recently dismissed yet another Customs and Border Protection exception to an arbitration decision. (NTEU 66 FLRA 556) No news there. But this is another in a long line of cases where the agency LR leaders opposed giving the union attorney fees–and lost. By our estimate, this case will cost CBP about $75,000 in attorney fees given the high-priced legal talent at NTEU and how long LR managers dragged it out. All that money goes into funding more NTEU litigation.
You would think CBP agency executives, who are supposed to be smart enough and courageous enough to manage the critical mission of protecting our borders, would have done something about the frequently flawed decision-making coming from its LR leadership at this point. After all, $75,000 could probably fund another staff position and this is only one of a half-dozen cases in less than two years where CBP has been ordered to pay NTEU fees.
In comparison, try to imagine what would happen to a bargaining unit employee if he/she negligently cost an agency another $75,000 on top of a half-dozen or so similar financial errors. At best, the employee would be fired, and at worst some agency executive would be asking the Department of Justice to prosecute the employee.
Ironically, just a couple of days ago multiple top-level executive heads rolled at GSA because it spent excessively on the perks for what was an otherwise legitimate conference. Looks like the excessive expenditures amounted to about $250,000. Perhaps those executives should site the precedent of CBP Labor Relations staff’s repeated financial blunders which have cost the same U.S. Treasury several times that amount without any consequences for the managers.
And lest anyone think that CBP LR faced an unprecedented set of facts and was trying to make new law to help all agency LR shops, read this portion of the FLRA decision where it explained that the arguments CBP was making were rejected 14 years ago.
The Agency does not dispute that the unjustified and unwarranted personnel actions resulted in a loss of pay, allowances, or differentials in the form of lost annual leave to attend the Union convention. See Exceptions at 9. Rather, the Agency claims that the award of fees must be set aside or limited because it also related to remedies that are not backpay. See id. at 17. But nothing in the plain wording of the BPA or relevant precedent supports such a narrow interpretation. In fact, the Authority has indicated to the contrary by holding that the BPA “provides that fees are paid when ‘related to the personnel action,’ and does not limit attorney fees to proceedings for pay, allowances, or differentials.” U.S. DoD, DoD Dependents Sch., 54 FLRA 773, 789 (1998) (DoDDS). Consistent with this principle, the courts and the Authority have found that fees may be incurred for time spent litigating issues other than the entitlement to backpay itself.
So, congrats NTEU.
We close with a suggestion for this union which boasts that it has over 70 lawyers on its national staff. How about giving an award at each convention to the agency manager who has done the most to fund further NTEU litigation? Call it the Madoff Prize.