HAS CBP SURRENDERED IN MULTI-MILLION DOLLAR BACK PAY CASE?
Close to 20,000 current, former, and possibly dead Customs and Border Protection Officers (CBPO) got what should be great news in January. (DHS, CBP v. FLRA, D.C.Cir., No. 15-1471, January 29, 2016) After fighting the union since 2001 over how overtime should be assigned, the agency seems to have raised the white flag and surrendered by withdrawing from court an appeal of an FLRA decision. The Authority upheld 10 back pay formulae an arbitrator imposed on the agency to compensate for its refusal to follow the law, namely, 5 USC 6101 and 5 CFR 610. The agency has to apply those formulas pay period by pay period all the way back to 2004 for every CBPO who has worked for the agency between then and at least 2011 when the parties signed a new agreement and OT assignment procedure. Imagine the task of solving a jumbled Rubik’s Cube with the added requirement that there is a number on each square that must be placed in the proper order. That is the task that awaits CBP. But maybe something else is happening. Things are not always what they seem.
Since we have not seen an announcement from the union or CBP of a settlement of the decade long litigation, it is always possible that CBP has decided to turn the tables on the union. Typically, when agencies refuse to accept an FLRA decision they file with a court of appeals and, if they lose, they pay. But an award of this complexity and size, i.e., approaching $100,000,000, is anything but typical. So, it could be that CBP is going to force the union to file a new round of litigation to get a federal judge to compel payment of the employees’ back pay and the union’s very fat attorney fee check by this time. It could be CBP leaders have raised the white flag and put their hands over their heads, but now they are going to force the employees to come drag them out of their trenches kicking and screaming.
Or it could be that the agency and union are in secret talks to settle the matter for a lump sum for everyone or otherwise simplify the payout process. Let’s hope it is that. Let us know if you find out before we do.
The following is a list of the overtime violations, usually unilateral changes in working conditions, that must be remedied:
- Overtime pool changes;
- Shift changes;
- Overtime block changes;
- Hour before or after shift assignments to avoid overtime;
- Skipping Officers entitled to call back and commute on call-out list;
- Reductions in overtime staffing;
- Temporary or permanent reassignments to lower overtime;
- Non-bargaining unit/non-CBP Officers performing CBPO overtime work;
- Fixed versus rotating shifts; and
- Changes of tours of duty during the same week for individual employees.
Here is an example of one of the formulae the union convinced the arbitrator to adopt. It avoids the fatal error made by many arbitrators of awarding back pay, but to an unidentified employee. That is illegal. But formulae that lead to the identity of the person owed overtime are legally enforceable
- Identify where legacy NTEU bargaining unit employees were excluded from fully participating in an overtime group.
- For the fiscal year prior to the change, determine how many overtime hours were worked by all employees in that participating overtime group. Determine what percentage of the group’s overtime hours the excluded legacy employee(s), individually worked during the fiscal year prior to the violation; (If the arbitrator prefers to use the 12 months immediately prior to the violation rather than the fiscal year before it, NTEU would not object.)
- Calculate the total number of overtime hours worked by the overtime group following the change, from the date the change was implemented until it was rescinded, or the new contract was implemented on May 11, 2011 — whichever is first. (NTEU has previously noted that if the arbitrator concludes that under law he cannot order back pay from the date of the violation to May 2011, then we have noted that 20 months from the violation is an alternative date, although we do not agree that is the correct reading of the law.)
- Calculate the number of hours of overtime the excluded legacy employee(s) were denied by applying the percentage obtained in two, above, to the number of hours determined in three, above.
- Pay the excluded employee(s) retroactive overtime compensation, plus interest and any differentials, for each of those hours at the employee’s rate of pay at the time of the violation.
CBP now must apply this formula to about 175 pay periods to who among current employees, former employees, fired employees, and deceased employees get money and how much.
For those managers and LR Specialists reading this we thought you might like to see the procedure the arbitrator imposed on the agency. It could be useful to show a line manager the next time he asks, “What the worst that can happen if I unilaterally change the hours of work and overtime practices.” If he still doubts you point out that there are about four other cases of equal size and complexity that CBP has to make right as well and write checks for even more money.
Excerpt from U.S. Customs and Border Protection, Department of Homeland Security and National Treasury Employees Union, Arbitration, August 19, 2013. You can find a copy on Cyberfeds.com.
(6) The terms of Prior Awards are modified as follows with respect to all claims processes;
(a) Back pay and interest to claimants will cover the period from November 5, 2004, if appropriate, to May 11, 2011, if appropriate;
(b) There will be no limitation for de minimis losses except insofar as the Parties adopt by agreement a de minimis exclusion;
(c) COPRA caps will be applicable unless the Parties adopt by agreement an exclusion of or limitation to the cap;
(d) Overtime equalization procedures will not be applicable to limit the right to payment for overtime lost as a result of RNIAP changes unless the Parties by agreement credit such procedures to mitigate affected employees’ entitlement to be made whole;
(7) By agreement, the Parties presented evidence at hearing on January 3 and 4, 2013, as well as argument in pre- and post-hearing briefs and in responses to the other’s brief, as to the appropriate process, procedure and schedule for the processing of BPA claims. Based on the complete record and the requirements of the BPA, I order that the following general conditions be applied to the remedy:
(a) The Parties will jointly issue a communication informing covered employees of the process which has been developed;
(b) Claimants and/or the Union, as appropriate, shall demonstrate, through the procedures and forms generally described herein and subsequently designed, that they have been affected by the Agency’s unjustified and/or unwarranted personnel action; in such cases, claimants will be entitled to receive for the period for which the personnel action was in effect “an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred”;
(c) The Agency shall provide to all employees on a facility-wide basis for all periods covered by the grievance a detailed list of all changes made to RNIAP at each facility or facilities to which each such employee was assigned, including the time the changes became effective and the period covered;
(d) The Parties shall jointly prepare a memorandum or memoranda to employees at each facility at which changes in RNIAP have been made, describing the changes and possible impact on employee overtime, describing the payroll records and assignments affected by those changes, and advising employees of their eligibility for BPA remedy;
(e) The Parties will jointly design procedures and forms, using the FLSA Status of Five Positions Award (a copy of which is included herein as Attachment 1) as guidance, and the Agency shall print copies of, the claims form or forms which will provide, at a minimum, the name of claimant, dates of employment, identification of which of the ten stipulated changes he/she is seeking back pay, identification of locations/ports where changes took place, dates of those changes, and a statement to be signed by claimant confirming that he/she was “ready, willing and able to work” during the times at issue and, if not for the entire time, which times he/she was “ready, willing and able to work”;
(f) Employees shall be allowed full opportunity to review their payroll and assignment records for changes made by RNIAP which affected or may have affected them and to review the Agency’s assignment and overtime records for all periods and to calculate and claim overtime which may be done. Employees performing such examination shall be in pay status. In participating in such process, employees will be entitled to the assistance of a Union steward, who shall be on official time during such assistance. The Agency shall make resources, i.e., Agency personnel, available to provide technical assistance to employees and stewards who participate in such process to access, interpret and apply Agency schedule and assignment records to the award procedures;
(g) The Parties may jointly establish schedules and procedures at any facility for the completion of such reviews and claim preparation. However, employees will be given not fewer than 180 days from the date of the issuance of this Award to submit such claims. Claims submitted after the deadline shall be considered if employees have not received documents or assistance or for other good cause;
(8) In those circumstances in which the Employer has provided full and accurate records and documentation of schedules and assignments made prior to RNIAP and changes made after RNIAP, and made such records, including individual work assignments and schedules, available to the Union and individual employees, covered employees, with the assistance of the Union as necessary, shall assert their entitlement to wages and benefits lost by filing individual claims, using agreed standard claim forms;
(9) In those circumstances in which the Employer has not provided full and accurate documentation, whether because it failed to retain assignment and overtime records, did not or could not provide such documentation to the Union, or for any other reason, the Union shall assert covered employees’ entitlement to wages and benefits lost on an individual or group basis and may impute such losses and use a formulaic approach to estimate actual damages, similar to the procedures it proposed in its post-hearing brief and to those adopted in the Meredith Award;
(10) Each claim submitted shall be jointly reviewed by the Parties and, within 30 calendar days from the date of submission, shall be acted on by the Agency, which may grant, grant in part, or deny the claim. By mutual agreement of the Parties, a claim may be returned for further documentation and processing;
(11) The Agency may challenge a claim based on asserted errors of fact (that is a dispute as to what happened in staffing, assignment or scheduling, either generally or as applied to a particular employee or group of employee) or entitlement (that is, the payroll consequence of the fact presented). The Agency may also challenge an employee’s entitlement to back pay on the basis that the employee could not or would not have worked any or some specified part of the overtime at issue. In the event of such challenge, the employee’s overtime availability for the 12 months prior to the reduction at issue shall create a rebuttable presumption that the same percentage of overtime would have been worked. The amount of overtime claimed may be further rebutted by proof that the employee would not or could not have worked the overtime for some other reason, such as absence on training or sick leave;
(12) In cases where the Agency contests a claim in part or in full, whether filed by an individual claimant or the Union, it will provide a written explanation to the claimant and/or the Union and shall submit copies of all documents relied on;
(13) Claims unresolved between the Parties shall be submitted to me in writing, based on the record developed and such additional written argument from each Party. The schedule and procedure shall be established by my Order, based on requests from the Parties. Appeals shall be resolved by me and confirmed in writing;
(14) The procedures will provide appropriate time lines for each step of the process, including the following:
(a) Within 60 calendar days of this Award becoming final and binding, CBP, at each local port, shall provide to the local NTEU Chapter President a record of each one of the 10 stipulated unilateral changes that occurred at that port between November 5, 2004, and May 11, 2011;
(b) Within 90 calendar days of this Award becoming final and binding, the local parties shall meet to determine whether or not CBP has correctly identified all of the unilateral changes that took place between November 5, 2004, and May 11, 2011. If the local parties do not agree with the list of identified changes, I will rule upon any disagreement;
(c) Within 120 calendar days of this Award becoming final and binding, the local parties shall apply the formulae NTEU has proposed above to each one of the unilateral changes identified by the local parties;
(d) Within 30 calendar days of the parties applying the formulae, as discussed in (c) above, CBP will compensate all impacted bargaining unit employees;
(e) The Parties are free, by mutual agreement, to change any time line provided herein;
(15) The Parties may, by joint agreement, modify or supplement the procedures provided for herein and shall notify me of any such changes, which shall be binding.
(16) Either Party may propose changes to modify or supplement those set forth herein. The Parties shall make written submissions in response to any such proposals. Such proposals will be adjudicated by me and confirmed in writing as supplements to this Award;
(17) The summary procedures provided herein shall be stayed for a period of 30 calendar days in order to allow the Parties to discuss and to further and better negotiate the specific procedures to be applied at the different ports and with respect to the different types of claims or lost wages and benefits. That period may be extended by agreement of the Parties.