The D.C. Circuit has dismissed CBP’s appeals of favorable FLRA decisions affirming arbitrator awards of back pay to legacy Customs employees and legacy INS employees for CBP’s scheduling violations.
On March 9, 2016, the U.S. Court of Appeals for the District of Columbia Circuit issued orders dismissing, for lack of jurisdiction, two CBP appeals of favorable FLRA decisions. Those FLRA decisions affirmed NTEU’s arbitration decisions ordering back pay for legacy INS and legacy Customs employees who were harmed by CBP’s violations of scheduling principles contained in 5 U.S.C. § 6101. After securing back pay awards from arbitrators, NTEU defended those victories before the FLRA. See Chapter Presidents’ memoranda dated 1/30/2015, 8/28/2015, and 10/26/2015.
Those FLRA victories should have been the end of the story, as federal courts generally lack jurisdiction to review FLRA decisions on arbitration awards that do not involve an unfair labor practice. But CBP nonetheless sought review in the D.C. Circuit of these Sec. 6101 decisions and thereby delayed implementation of the back pay awards. It did so, moreover, using a jurisdictional theory that the D.C. Circuit had already rejected. See Chapter Presidents’ memorandum dated 5/5/2015, detailing the favorable D.C. Circuit jurisdictional decision in the Scobey case concerning the appropriate remedy for a missed overtime assignment. The jurisdictional principles established in the Scobey case were instrumental to the court’s actions on March 9 in these two Sec. 6101 cases.
NTEU intervened in Scobey and in both of these cases to protect the victories that it had achieved and it welcomes the court’s granting of the FLRA’s motions to dismiss for lack of jurisdiction. The court’s orders remove the final legal impediment to payment of the back pay ordered by the arbitrators in these two cases.
As you have been previously advised, legacy Customs and INS Officers’ entitlement to back pay will be governed by two formulas that NTEU advanced in arbitration that were adopted by two arbitrators mutually selected by NTEU and CBP. Subsequently, the FLRA sustained the use of these formulas.
The first formula addresses CBP’s decision to schedule some Officers such that they did not have two consecutive regular days off. In this situation, Officers are entitled to eight hours of COPRA overtime for one of the nonconsecutive regular days off. The second formula addresses CBP’s second violation of §6101 where it scheduled Officers such that they did not have uniform hours of work during the workweek. In these circumstances, Officers are entitled to COPRA back pay for the hours of work that were different from the majority of hours that were worked by the Officers during the workweek. For example, if an Officer worked from 8:00 a.m. to 4:00 p.m. on Monday through Thursday, but from 6:00 a.m. until 2:00 p.m. on Friday, the Officer would be entitled to two hours of COPRA overtime. The back pay period for legacy Customs Officers runs from October 1, 2001 through April 4, 2008, while the back pay period for legacy INS Officers runs from July 2004 through April 4, 2008. Both awards cover on-board legacy Officers and those that have since retired.
Up to now, CBP has refused to implement these two FLRA decisions despite its obligation to do so pursuant to the Federal Service Labor-Management Relations Statute and its accompanying regulations, and despite its now dismissed appeals to the federal courts. In response, NTEU has filed two unfair labor practice charges, and to buttress these charges, has returned to both arbitrators for findings of CBP’s noncompliance. The arbitrator addressing NTEU’s legacy INS 6101 claims has already issued such a decision, and we are hopeful for the same result from the arbitrator that found for NTEU and the legacy Customs Officers on the same 6101 issue.
Now that both of CBP’s federal court appeals have been rejected, I hope that the agency will now show its employees the respect they deserve by working with NTEU to implement the back pay awards in these two cases.
Meanwhile, an appeal is pending in a third 6101 case involving CBP’s scheduling violations for non-legacy Officers, which has followed the same path: arbitration in favor of NTEU including using the two back pay formulas, two FLRA decisions sustaining the arbitration award, after which CBP filed its federal court appeal. The back pay period for this third 6101 matter runs from April 17, 2008 through August 1, 2011. NTEU has also filed an unfair labor practice charge and is seeking a finding of CBP noncompliance on this 6101 case from the third arbitrator that found for NTEU.