Grooming Standards Tuesday, December 23, 2008 SUMMARY: The U.S. Court of Appeals for the D.C. Circuit has ordered the Federal Labor Relations Authority (FLRA) to reconsider its conclusion that NTEU’s proposal to allow uniformed officers to wear neatly-trimmed beards was nonnegotiable.
NTEU has won an important victory from the U.S. Court of Appeals for the D.C. Circuit in our long-standing dispute with CBP over the agency’s grooming standards policy. The court has remanded the case to the FLRA for reconsideration of its holding that NTEU’s proposal to modify the agency’s unreasonable facial hair policy for uniformed employees was nonnegotiable.
In chapter presidents’ memos dated December 3, 2007, January 17, February 12, March 25, and October 29, 2008, I provided information about NTEU’s long-standing dispute with CBP over the agency’s grooming standards. In one phase of that dispute, the FLRA ruled that several proposals submitted by NTEU in connection with bargaining over the policy were nonnegotiable. NTEU appealed the FLRA’s adverse negotiability determinations to the U.S. Court of Appeals for the D.C. Circuit.
While the court affirmed the FLRA’s decision as to two of the proposals, the court held that as to NTEU’s proposal that would allow the wearing of neatly-trimmed beards, the FLRA “failed to base its appropriate arrangement analysis on record evidence.” CBP had claimed that allowing facial hair would interfere with officers’ use of respirators in emergency situations. Evidence in the record submitted by NTEU, however, indicated that CBP had no policy or procedure regarding respirator use, that employees had never used, been fitted for, or trained in the use of respirators, and that CBP relied not on its own officers but on other agencies to respond to emergency situations requiring respirators. The court found that this evidence “would significantly diminish CBP’s interest in facilitating its officers’ use of respirators,” but that the FLRA had “considered none of it.” Accordingly, the court remanded NTEU’s facial hair proposal back to the FLRA for a new determination, based on record evidence.
You may recall that the recent case involving NTEU’s bargaining proposal requiring CBP to provide secure overnight firearms storage also resulted in a holding by the court that the FLRA had ignored evidence in the record and a remand to the FLRA. On remand in that case, the FLRA determined that CBP had not presented evidence to support its claims and ordered it to bargain over NTEU’s proposal. While it is difficult to predict with certainty what the result of the FLRA remand will be in this case, we are hopeful that the lack of any record evidence to support CBP’s claims will compel a similar finding that NTEU’s facial hair proposal is negotiable.
It will now take some time for the FLRA to consider the case on remand, but I will inform you as soon as that occurs, or if there are any other developments in the dispute over CBP’s grooming standards policy.
Colleen M. Kelley National President
Favorable Ruling in COPRA/FLSA Arbitration Thursday, October 09, 2008
SUMMARY: An arbitrator has accepted NTEU’s view of the relationship between COPRA and the FLSA, adopted a favorable interpretation of COPRA’s “officially assigned” work standard, and ruled that CBP is liable for liquidated damages equal to any back pay owed to legacy Customs officers under the FLSA for unpaid overtime work.
Background
In an April 28, 2008, chapter presidents’ memo, I updated you concerning proceedings in two consolidated national grievances seeking compensation for unpaid overtime work. I am pleased to inform you that, on October 1, 2008, an arbitrator issued an interim opinion and award that favorably resolves several important elements of this dispute for legacy Customs officers covered by COPRA. A copy of the decision is attached. Details about the arbitration decision follow.
The Relationship Between COPRA and the FLSA
The arbitrator adopted NTEU’s position concerning the relationship between COPRA and the FLSA. That is, he agreed that CBPOs were improperly denied coverage of the FLSA and “must be compensated under COPRA for “officially assigned” overtime and under the FLSA for all other overtime work that is not “officially assigned, but is nevertheless ‘suffered or permitted.’” He then defined, for the first time in an administrative or judicial proceeding, the meaning of COPRA’s “officially assigned” work standard, adopting a reasonable interpretation of that term similar to the interpretation advanced by NTEU. The arbitrator ruled that COPRA double-time rates must be paid for overtime “work resulting from tasks assigned to CBPOs by officials with appropriate authority by direct instructions, either orally, in writing or by other means.” There was no need for the arbitrator to define the meaning of the FLSA’s “suffered or permitted” work standard. The meaning of that phrase is well-established in regulation and case law.
In the April 28 memo, I indicated that I expected that the overwhelming majority of CBPO overtime under a dual COPRA/FLSA system would continue to be paid at COPRA overtime rates. The arbitrator’s interpretation of COPRA’s “officially assigned” standard does nothing to change that view. In essence, under the arbitrator’s reasonable approach, overtime work is payable under COPRA’s “officially assigned” standard if it results from any kind of “positive action” taken by appropriate agency officials. On the other hand, such positive agency action is not required under the FLSA’s more expansive “suffered or permitted” standard.
Claims Procedure
The stage is now set for the next phase in the process of recovering compensation for unpaid overtime hours. The parties have 45 days to devise a claims process for the submission of employee unpaid overtime claims under COPRA and/or the FLSA. If the parties are unable to reach agreement over a claims procedure, they will submit their dispute to the arbitrator, who will impose a process.
Finalization of the claims process, either through a voluntary agreement or through another decision from the arbitrator, may take some time. It is also possible that CBP will, as has been its practice, elect to further protract proceedings by filing exceptions with the Federal Labor Relations Authority (FLRA). If that happens, CBP will be under no obligation to implement the arbitration award until the FLRA rules on the exceptions. I will provide further details concerning the claims process when they are available.
Other Groups of COPRA-Covered Officers
Once again, these proceedings apply only to legacy Customs officers. But, as I informed you in a chapter presidents’ memo dated February 7, 2008, the same kinds of claims have been raised in national grievances filed on behalf of other COPRA-covered officers: legacy INS CBPOs, Agriculture Specialists, and CBPOs hired after July 24, 2004. NTEU will continue to process these grievances under applicable procedures with the goal of making a claims process, similar to the one now under consideration for legacy Customs officers, available to all COPRA-covered officers who have worked uncompensated overtime.
Contact Larry J. Adkins, Deputy General Counsel, with any questions or comments you may have about this matter.
Colleen M. Kelley
National President
Attachment
| 2009 Pay Raise with Locality Pay Friday, December 19, 2008 SUMMARY: The President issued the Executive Order implementing the federal pay raise for 2009 and allocating one percent of the raise to locality pay.
As I have reported before, NTEU was successful in fighting for the average 3.9 percent federal pay raise, an increase of an entire percent above the earlier proposed Bush Administration budget. The Federal Salary Council, of which I am a member, supports the allocation of one percent to be designated towards locality pay. The 3.9 percent raise was enacted by Congress, and late yesterday the President issued an Executive Order designating one percent towards locality pay.
Federal employees can check their raise with locality pay by visiting the following link: 2009 Pay Rate Tables. Be sure to scroll down to the second set of charts which includes the amount of base pay plus locality pay for the total raise.
I am glad NTEU was able to have success on this issue, but we realize we cannot take federal pay increases for granted. We will continue to fight to close the unacceptably high pay gap with the private sector that has long been a problem for our dedicated federal workforce.
If you have any questions on this subject, please call Gail Amidzich in the Legislation Department at 202-572-5500, ext. 7048.
AWS Negotiations Tuesday, December 16, 2008 SUMMARY: CBP has informed NTEU that it will be prepared to begin negotiations over compressed work schedules for COPRA-covered employees in January and that AWS negotiations for nonuniformed employees can begin immediately.
Some chapters have approached CBP to begin AWS negotiations only to be told that CBP is not yet ready to begin negotiations. CBP has informed NTEU that it expects to provide all ports with AWS bargaining guidance in January that will permit the ports to begin negotiations. However, CBP agrees that there is nothing that prevents the parties at the local level from beginning informal discussions on compressed work schedules for COPRA-covered employees and to begin actual AWS negotiations for all other bargaining unit employees.
The informal discussions could include general discussions on where compressed work schedules might be appropriate for Officers and Agriculture Specialists, information that the parties will need to negotiate compressed and flexible work schedules, and a suggested bargaining schedule. In the interim, chapters should be meeting and/or surveying the bargaining unit concerning their AWS interests and suggestions so that they are ready to immediately begin negotiations once local managers are authorized to do so.
Please work with your National Field Representative as you prepare for AWS negotiations.
Grooming Standards Tuesday, November 4, 2008 SUMMARY: NTEU presented oral argument to the U.S. Court of Appeals for the D.C. Circuit on its appeal of the Federal Labor Relations Authority’s (FLRA) decision holding nonnegotiable proposals that NTEU submitted in connection with CBP’s grooming standards.
In chapter presidents’ memos dated December 3, 2007, and January 17, February 12, and March 25, 2008, I provided information about NTEU’s long-standing dispute with CBP over the agency’s grooming standards. In one phase of that dispute, the FLRA ruled on the negotiability of proposals submitted by NTEU in connection with bargaining over the policy. While the FLRA held several proposals to be negotiable, it ruled that other proposals, including NTEU’s proposal to modify the agency’s unreasonable facial hair policy, are nonnegotiable. NTEU appealed the FLRA’s adverse negotiability determinations to the U.S. Court of Appeals for the District of Columbia Circuit.
On October 16, 2008, NTEU presented oral argument in this case to a three-judge panel of the court. Much of the judges’ vigorous questioning focused on whether the record before the FLRA contained any evidence to support CBP’s assertion that male uniformed employees could not be permitted to grow neatly-trimmed beards because they might need to use respirators in the event of an emergency. NTEU had submitted considerable evidence to the FLRA that CBP had no policy or procedure regarding respirator use and that employees had never used, been fitted for, or trained in the use of respirators.
It could take several months for the court to issue a decision in the case, but I will inform you as soon as that occurs, or if there are any other developments in the dispute over CBP’s grooming standards policy. Colleen M. Kelley National President
Flexible Spending Accounts Friday, October 24, 2008 SUMMARY: Open season for federal employees to sign up for Flexible Spending Accounts (FSAs) under FSAFEDS, begins November 10, 2008, and runs through December 8, 2008, for the upcoming 2009 benefit season.
Federal employees should be aware that the open season for federal workers to sign up for FSAs begins November 10, 2008, and runs through December 8, 2008. As many of you know, NTEU fought hard for FSAs which permit federal employees to have funds deducted on a pre-tax basis from their paychecks to be used for out-of-pocket medical and/or dependent care expenses. We also achieved this pre-tax treatment for health care premiums. Because the money is deducted up front, the employee’s taxable income is lower and overall income taxes can be substantially reduced.
While the open season period for FSAFEDs runs at the same time as open season for FEHBP health insurance plans and FEDVIP dental and vision benefits, this is a distinctly different program. FSAs should also not be confused with HSAs, which are Health Savings Accounts and related to High Deductible Health Care Plans. (A limited expense FSA can, however, be set up to cover dental and vision expenses only if you are enrolled in these.) I am attaching a copy of OPM’s latest brochure on the program for the 2009 benefit period for enrolling in FSAFEDs. Further information can be obtained by visiting https://www.fsafeds.com/fsafeds/index.asp.
FSAs are allowable under the 1986 tax law Congress enacted. NTEU has a long history in working on this issue and in convincing the Clinton Administration that federal workers should be covered. The health care premiums are automatically deducted as pre-tax.
Now that FSAs are operational for federal employees, I encourage you to consider participating. Employees can set up FSA accounts just for out-of-pocket medical expenses, just for dependent care, or for both. Some examples of coverage include over-the-counter drugs, copayments, dental charges, transportation to medical appointments, walkers, child care costs, after school care, and more. It is important to estimate out-of-pocket expenses carefully though because unspent funds cannot be carried over automatically from year to year beyond the annual grace period.
If you would like additional information on this subject, please call Gail Amidzich in the Legislation Department at 202-572-5500, ext. 7048.
Colleen M. Kelley
National President | CBP Appeals NTEU Arbitration Win on Work Schedules Tuesday, November 25, 2008 Four months after advising local managers to comply with the scheduling requirements in NTEU's contract, CBP is appealing a union arbitration victory declaring illegal the agency's scheduling practices. In its appeal to the Federal Labor Relations Authority, CBP is maintaining that the law does not apply to Legacy Customs Officers because they operate under a different overtime system than most other federal employees. "For several years now, CBP has not only violated these employees' rights by denying them a voice in assignments and overtime, but management has deprived them of millions in lost overtime," said NTEU President Colleen M. Kelley, adding that NTEU will contest CBP's appeal.
An arbitrator last year ordered CBP to provide back pay to Legacy Customs Officers denied consistent work hours and consecutive days off. During the remedial phase of the decision, NTEU resisted CBP attempts to deny compensation to various groups of employees and severely restrict the time period for which it would have to grant back pay. NTEU continues to pursue similar grievances on behalf of newly-hired CBP Officers, Legacy INS Officers and Agriculture Specialists.
CBP Bid & Rotation and AWS Agreements Reached Tuesday, November 4, 2008
I am very pleased to attach agreements we have reached with CBP on Bid, Rotation & Placement and AWS, and we have agreed to implement both immediately, while we continue bargaining the other issues on the term bargaining table. A few minutes ago a joint message from me and Deputy Commissioner Ahern was sent to all CBP employees.
Attached are a chapter president memo with details about the agreements, the actual agreements, a message from the national president that will be sent to all members in the morning, and a 2-page talking point document for your use in discussing the agreements with fellow leaders and employees.
We will be discussing the agreements, and next steps on implementation, at the Baltimore bargaining council meeting next week. I look forward to seeing you there.
These agreements are very good news for CBP employees and I know you will make sure that employees appreciate the work NTEU has done on their behalf on these important issues.
Colleen M. Kelley
National President
‘Members in the Military’ Web Tribute Enhancement Wednesday, October 27, 2008 SUMMARY: Honor Veterans Day and submit the name(s) of NTEU members who are veterans of the U.S. Armed Forces for inclusion in NTEU’s ‘Members in the Military’ web tribute.
In celebrating Veterans Day, it is important we keep in mind the dedication and honor of those members of the NTEU family who have served their country in uniform.
Be a part of a new feature to our unique tribute and submit the name of any NTEU member(s) who is a veteran of the U.S. armed forces. In your submission, please include that person’s service branch and hometown.
Read profiles of the more than 200 other military members who make up our “Members in the Military” tribute here.
Send your submissions, including photos, electronically to NTEU-PR@nteu.org or mail to NTEU Public Relations, 1750 H Street, N.W., Washington, D.C. 20006.
For more information, call the NTEU Public Relations Department at (202) 572-5500 or e-mail at NTEU-PR@nteu.org.
Colleen M. Kelley
National President
FY 2009 DHS Authorization Bill that Includes Provisions to Address Concerns of CBP Agriculture Specialists Introduced in the Senate Friday, October 3, 2008
SUMMARY: On Friday, September 26, 2008, Homeland Security and Governmental Affairs Chairman and Ranking Member introduced S. 3623, FY 2009 Authorization bill. In addition to authorizing the hiring of additional CBP Officers, the bill also includes provisions to address concerns of CBP Agriculture Specialists.
NTEU has been working with Congress all year to address the concerns of CBP Agriculture Specialists. The Senate introduced a FY 2009 DHS Authorization bill, S. 3623, last week that includes provisions to strengthen the CBP Agriculture Specialist mission.
The CBP Agriculture Specialist subtitle is attached. In brief, here is an outline of the sections:
Sec. 811. This section expresses the Sense of the Senate about the importance of the mission carried out by U.S. Customs and Border Protection Agriculture Specialists in protecting the United States from both the intentional and unintentional introductions of disease and pests.
Sec. 812. This section requires U.S. Customs and Border Protection Agriculture Specialists to hire no fewer than 195 new CBP Agriculture Specialists over the next five years.
Sec. 813. This section requires DHS to ensure that there are appropriate career paths available for CBP Agriculture Specialists
Sec. 814. This section directs DHS to develop a plan to enhance recruitment and retention of CBP Agriculture Specialists.
Sec. 815. This section gives U.S. Customs and Border Protection Agriculture Specialists and Seized Property Specialists the same enhanced retirement benefits as are given to their CBP Officer colleagues.
Sec. 816. This section directs DHS to assess the extent and adequacy of the resources and equipment available to CBP Agriculture Specialists.
Sec. 817. This section directs DHS to report on the status of plans to improve the Agriculture Inspection Program and on the implementation of this subtitle.
Because of the upcoming election, there will be no action on the bill this year, but it will be a starting point for action in the next Congress that convenes in January 2009.
In addition to the introduction of this authorization language to address CBP Agriculture Specialists’ concerns, NTEU was successful in getting a 3.9 percent pay raise for all federal employees that will go into effect January 1, 2009 and funding in the FY 2009 DHS Appropriation bill for the hiring of 100 additional CBP Agriculture Specialists.
If you have any questions, please contact Jean Hutter in the Legislation Department at 202.572.5500, ext. 7021.
Colleen M. Kelley
National President
|