Decades ago the Commissioner of the Immigration and Naturalization Service (INS) issued a proclamation stating that he was taking away the right of INS employees to two consecutive days off a workweek and to work the same starting/quitting times for an entire week.  He declared that it would harm the agency to give INS employees the same rights that all other federal employees had thanks to the law at 5 USC 6101. As a result, INS management was able deny agency employees overtime pay for many of the hours they were assigned to work.  This cost employees millions.  Then, . . .

when the Department of Homeland Security was created and INS was merged with the U.S. Customs Service and APHIS, the INS employees moved from AFGE to NTEU jurisdiction in 2007.  Not long after that NTEU filed a grievance to void the original INS proclamation waiving employee statutory rights to overtime.  It wanted all the INS employees who had come over from the AFGE unit to have the same statutory overtime rights as virtually every other federal employee. When management rejected the grievance, NTEU took the dispute to arbitration and won.  The arbitrator ruled that the INS waiver was rendered null and void under a legal theory NTEU put forth.  As a result, the arbitrator ordered that:

1.    The waiver of employee rights is no longer applicable and has not been a legal waiver since mid-2004.

2.    The agency is to pay former INS employees now in the NTEU unit retroactive overtime pay for every regular day off that was not contiguous to another day off.  For example, if under the waiver management scheduled the INS employees to take off Tuesday and Friday as their regular days off, it now has to pay the employees one day of overtime pay for each week it did that.

3.    The agency is to pay former INS employees now in the NTEU unit retroactive overtime pay for every day of the workweek that they had different start/quit times.  For example, if management told an employee her shift for a particular work week would be from 8 AM to 4 PM every day except Wednesday, when she would work from noon to 8 PM, it now must pay the employee overtime for the hours she worked outside on 8 AM to 4 PM on that Wednesday.

4.    The agency is to adjust the retirement annuities of former INS employees who were in the NTEU unit since the date the arbitrator voided the INS Commissioner’s proclamation if they were entitled to overtime pay under this decision.

This is one of those rare cases in which employees whose rights were violated while represented by one union had the violation remedied after they moved to another union.  In addition, the union was able to get back pay reaching back to 2004 which was years before the AFGE members even became represented by NTEU in 2007.

If your employer has invoked its discretion under 5 USC 6101(a)(3) to undercut employees’ rights to overtime for certain hours of work, take a look at CBP and NTEU, 65 FLRA 978 (2011) where NTEU’s reading of the law has already been upheld.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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