Litigation Update JULY District Court FLRA

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1 NTEU Litigation Update JULY 2010 Inside this issue: Fourth Circuit Federal Circuit District Court FLRA MSPB Grievances & Arbitrations Click on any of the above links to view the cases filed in that forum. FOURTH CIRCUIT 1. NTEU v. FLRA, No NTEU File No Attorneys: O Duden/Atkin/Bialczak ISSUE: Whether the FLRA erred in denying NTEU s exception to an arbitrator s conclusion that IRS was not required to reimburse NTEU for union dues lost as a result of IRS unlawful processing of revocation forms. STATUS: NTEU s petition for review of the FLRA s decision was docketed on July 28, NTEU s opening brief is due September 7, FEDERAL CIRCUIT 2. Brown v. DoD, No NTEU File No Attorneys: O Duden/Atkin/Wilson ISSUE: Whether the administrative judge, affirmed by a split MSPB, incorrectly declined to review the underlying merits of Brown s removal, which was based on her alleged ineligibility to occupy a noncritical sensitive position. (NTEU representing Brown.) STATUS: Before briefing could commence in the case, the MSPB on December 30, 2009, filed a motion to intervene and requested that the case be remanded to the Board for further proceedings. On January 13, 2010, Brown filed a similar motion. On March 22, 2010, the parties filed a joint motion to stay action on the pending motions to allow parties to complete settlement discussions. A settlement agreement was signed on April 27, The motion for voluntary dismissal was granted on July 16, A R E V I E W O F N T E U L I T I G A T I O N

2 2 DISTRICT COURT 3. Dennison v. OCC, No. 1:10-cv-0880 NTEU File No Court: D.D.C. Attorneys: O Duden/Wynns/Bialczak ISSUE: Whether the Office of the Comptroller of the Currency has violated the Freedom of Information Act (FOIA) by failing to produce data regarding pay increases and awards given to an outside consultant, along with the report generated by the consultant as requested by NTEU in August STATUS: NTEU filed a complaint on May 27, On July 6, 2010, OCC requested an extension of time to August 9, 2010, to file an answer to the complaint. 4. NTEU v. Berry (formerly NTEU v. Springer), 1:07CV00168 NTEU File No Court: D.D.C. Attorneys: O Duden/Wynns/Sheehy ISSUE: Whether the regulations issued by the U.S. Office of Personnel Management (OPM) that authorize federal agencies to hire applicants for federal civil service positions under the Federal Career Intern Program (FCIP) are arbitrary, capricious and contrary to law. STATUS: NTEU filed a complaint on January 24, On May 2, 2007, OPM filed a motion to dismiss for lack of subject matter jurisdiction, which NTEU opposed. The court issued a decision on July 20, 2009, denying OPM s motion to dismiss and ordering OPM to produce the administrative record. The parties filed a joint status report on August 3, 2009, setting a date for production of the record and a schedule for additional briefing. The administrative record was filed on October 16, On February 25, 2010, the parties filed a joint proposed scheduling order. A status conference was held on March 4, NTEU filed its motion for summary judgment with supporting memorandum on April 29, The government opposed our motion for summary judgment and filed a cross-motion for summary judgment on June 24, NTEU s reply and opposition to the cross-motion was filed on July 22, The government's reply is due on August Ramirez v. CBP, 1:07-CV-65 (GK) NTEU File No Attorneys: O Duden/Atkin/Wilson ISSUE: Whether CBP violated the First Amendment rights of a CBP Officer by ordering him, under threat of discharge, to resign from his unpaid elected position on the nonpartisan City Council of a border town in Texas. (NTEU representing Ramirez.) STATUS: The court entered a preliminary injunction on Mar. 12, 2007, barring CBP from taking action against Ramirez for serving on the city council. Ramirez decided not to seek office for the term, and CBP agreed not to take any action against Ramirez for his prior terms. A motion to dismiss his case was filed on May 7. The court granted the motion that same day.

3 3 FLRA 6. NTEU and DHS and CBP, No. 0-NG-3073 NTEU File No ISSUE: Whether Article 22, 2 of the new term agreement between NTEU and CBP, which provides that [a]n employee being interviewed by a representative of the Agency (e.g., Department of Homeland Security Office of Inspector General) in connection with either a criminal or non-criminal matter has certain entitlements/rights regardless of who is conducting the interview, is non-negotiable. STATUS: On May 18, 2010, NTEU filed a petition for review of negotiability issues. A post-petition conference was held on July 13, The Agency s Statement of Position is due on August 16, DHS, CBP and NTEU, No. 0-AR-4363 NTEU File No ISSUES: 1) Whether the arbitrator correctly ruled that CBP committed unfair labor practices under 5 U.S.C. 7116(a)(1) and (a)(3) when it failed to negotiate at the national level over the impact and implementation of changes that were made in policies regarding the assignment of regular and overtime work to CBPOs pursuant to the authority delegated to local ports by the revised National Inspection Assignment Policy; and 2) whether the arbitrator correctly issued a prospective bargaining order and status quo ante relief as a remedy for the unfair labor practices, notwithstanding that the original NTEU-represented bargaining unit of legacy customs inspectors has been replaced by the new comprehensive unit that includes legacy INS employees and Agriculture employees. STATUS: On April 11, 2008, CBP filed exceptions to favorable arbitration decisions issued on November 16, 2006 (liability) and March 13, 2008 (remedy). NTEU s opposition to the CBP s exceptions was filed on June 2, The FLRA denied the Agency s exceptions on July 14, NTEU has contacted CBP for the purpose of moving forward to implement the arbitrator s award. 8. DHS, CBP and NTEU, No. 0-AR-4359 NTEU File No A1 ISSUE: Whether CBP violated the collective bargaining agreement by requiring employees to participate in interviews conducted by personnel of the DHS Office of Inspector General when the interviews could result in discipline and the employees were denied contractually guaranteed rights. STATUS: On April 3, 2008, CBP filed exceptions to a favorable arbitration decision issued on February 29, NTEU s opposition to the CBP s exceptions was filed on May 12, Awaiting decision. (See #34.) 9. NTEU and FDIC, No. 0-AR-4286 NTEU File No A1 Attorney: O Duden ISSUE: Whether the FDIC violated the collective bargaining agreement and the pay-for-performance compensation agreement when it failed to allocate Corporate Success Awards to employees in a fair and non-discriminatory manner, and further, whether its subjective decision-making discriminated on the

4 4 basis of race, color, and age in violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. STATUS: On August 20, 2007, NTEU filed exceptions to the unfavorable decision from the arbitrator dated July 16, (See #36). FDIC s response was filed on September 20, Awaiting decision from the FLRA. 10. Department of Treasury, IRS and NTEU, No. 0-AR-4161 NTEU File No MSPB ISSUE: Whether a contract provision permitting union officers to use official time to perform representation functions at their flexiplace location is inconsistent with the Telecommuting Act of 2000, as construed by the FLRA in AFGE National Council of HUD Locals and HUD, 60 FLRA 311. STATUS: IRS filed exceptions to the arbitrator s favorable decision on November 16, On March 24, 2009, the FLRA issued a decision denying the IRS s exceptions and upholding the arbitrator s decision. The parties have jointly agreed on how to implement the award, and impacted chapter officials have been notified of the process for leave restoration. 11. Aguzie v. OPM, No. DC R-1 NTEU File No Attorneys: O Duden/Atkin ISSUES: When OPM directs an agency to remove a tenured employee for suitability reasons, is the Board s jurisdiction limited to the review provided in the suitability regulations at 5 CFR part 731 or should the Board consider the removal as an adverse action under 5 U.S.C. Chapter 75. (NTEU amicus.) STATUS: The Board sought amicus briefs in Federal Register notices, 75 Fed. Reg and NTEU filed an amicus brief on the issue on June 3, 2010, arguing that OPM s regulatory limitation of the Board s jurisdiction is unlawful. 12. Evans v. Dept. of Veterans Affairs, No. AT I-1 NTEU File No ISSUES: Whether the Federal Career Intern Program (FCIP), 5 C.F.R (o), constitutes a lawful excepted service hiring authority. Specifically, whether an agency s reliance on the FCIP to fill a vacant position violates a statute relating to veterans preference and, if so, whether the agency s use of authority delegated by OPM to hire under the FCIP is unlawful. (NTEU amicus.) STATUS: The Board sought amicus briefs in a May 10, 2010 Federal Register notice, 75 Fed. Reg NTEU filed an amicus brief on the issue on June 25, Penaflor v. DHS, No. SF I-1 NTEU File No /Donnelly ISSUES: Whether the appellant could challenge the termination of his appointment as an adverse action

5 5 before the MSPB when he was not converted to competitive status upon the termination of his two-year FCIP internship. (NTEU representing Penaflor.) STATUS: Appellant timely filed an appeal of his appointment termination with the MSPB. On May 13, 2010, the Administrative Judge (AJ) ordered him to file a statement of jurisdiction demonstrating that the Board had jurisdiction over the removal action. NTEU filed a jurisdictional statement on his behalf on June 4, 2010, which the government opposed. On July 16, 2010, the AJ dismissed the appeal for lack of jurisdiction. This dismissal will be appealed to the full Board. 14. Marquez v. DHS, No. SF I-1 NTEU File No Attorneys: O Duden/Atkin ISSUE: Whether the MSPB should deny the Agency s motion to dismiss Marquez appeal for lack of jurisdiction, where Marquez is appealing the Agency s negative suitability determination against him, an issue over which the MSPB has jurisdiction under 5 C.F.R (b). (NTEU representing Marquez.) STATUS: NTEU filed its opposition to the motion to dismiss on March 17, The Agency filed a second motion to dismiss on March 24, which NTEU opposed on April 5. The Administrative Judge issued an order denying the motion to dismiss on May 4, Conyers v. Dept. of Defense; Northover v. Dept. of Defense, Nos. CH I-1; AT I-1 NTEU File No Attorneys: O Duden/Atkin ISSUE: Whether the Supreme Court s decision in Dept. of Navy v. Egan, 484 U.S. 519 (1988), limits the scope of Board review of a removal from a noncritical sensitive position even when the employee does not have access to classified information. (NTEU amicus.) STATUS: The Board sought amicus briefs in a February 10, 2010 Federal Register notice, 75 Fed. Reg NTEU filed an amicus brief on the issue on March 1, Weed v. SSA, Nos. DE I-1; DE I-1 NTEU File No ISSUES: 1) Whether a disabled veteran had standing to challenge SSA s hiring practices under the Federal Career Intern Program when he had not applied for the jobs, where SSA had not advertised the vacancies in a way that would have permitted him to apply; 2) whether SSA violated the veteran s veterans preference rights by relying on the FCIP to fill the positions where that program was an invalid exception to the competitive hiring system. (NTEU amicus.) STATUS: On August 10, 2009, MSPB granted the petition for review, reversed the initial decision, and remanded the case for further adjudication consistent with its opinion and order. During discovery, the administrative judge dismissed the case without prejudice, pending a decision by the Board on another case filed by Weed, involving a whistleblower claim. That case was favorably decided by the Board and remanded to the judge. The case was reactivated and a conference call was held on March 29. The case is now in mediation.

6 6 GRIEVANCES & ARBITRATIONS 17. NTEU and IRS (Whitmer, Grievant) NTEU File No ISSUE: Whether IRS violated the National Agreement, the Veterans Employment Opportunities Act and/or the Uniformed Services Employment and Reemployment Rights Act by filling certain Revenue Agent vacancies in Bowling Green, Kentucky, exclusively through the FCIP. STATUS: NTEU filed a grievance on behalf of an IRS employee, who is a veteran, over his non-selection for a Revenue Agent vacancy that the IRS filled through the FCIP. Consistent with Article 41, the parties held grievance meetings, and the IRS denied the grievance at each step. NTEU has invoked arbitration, and the parties are attempting to schedule the case. 18. IRS and NTEU NTEU File No Attorneys: O Duden/Atkin ISSUE: Whether the IRS has acted contrary to law by denying current and former part-time employees Sunday premium pay. STATUS: NTEU filed a national grievance on March 2, A grievance meeting was held on March 26. Settlement discussions are underway. 19. CBP and NTEU NTEU File No ISSUE: Whether CBP is in violation of 5 U.S.C. 5546(a) by denying current and former part-time employees Sunday premium pay. STATUS: NTEU filed an institutional grievance on March 8, Settlement discussions are underway. 20. CBP and NTEU NTEU File No /Sheehy ISSUE: Whether CBP violated the Fair Labor Standards Act by exempting International Trade Specialists (GS-1101), and Automated Commercial Systems Specialists (GS-1801) from coverage under that Act. STATUS: NTEU filed a national grievance and information request on March 18, The parties held a grievance meeting, during which they were not able to resolve the issues. NTEU will invoke arbitration.

7 7 21. CBP and NTEU NTEU File No ISSUE: Whether, by suspending the Foreign Language Awards Program (FLAP), CBP: 1) violated a memorandum of understanding imposed in 2008 by the Federal Service Impasses Panel (FSIP) and the Agency s FLAP directive; 2) violated the customs user fee statute by using funds that were otherwise available for FLAP for other purposes; and 3) committed unfair labor practices by suspending FLAP without bargaining and by failing to comply with a binding order from the FSIP. STATUS: NTEU filed a national grievance on February 18, 2010, on response to CBP s announcement on February 4 of its intent to suspend FLAP. A grievance meeting was held on March 25. The Agency s reply was due on April 30, but CBP notified NTEU that day that it was immediately rescinding its notice of intent to suspend FLAP. It indicated that there would not be any break in eligibility for CBP Officers and Agriculture Specialists to receive an award for certified language usage from February 4 to April CBP and NTEU NTEU File No /Bialczak ISSUE: Whether CBP erroneously determined that it lacked authority to pay any CBP Technicians under the USDA premium pay system for their plant- and animal-related work. STATUS: On December 16, 2009, NTEU filed a national grievance aimed at returning legacy Agriculture CBP Technicians to coverage under the USDA premium pay system and also at extending coverage of that system to all CBP Technicians who perform plant- and animal-related work. On January 26, 2010, the Agency denied the grievance. NTEU invoked arbitration on February 4, NTEU and IRS NTEU File No Attorneys: O Duden/Atkin/Bialczak ISSUE: Whether IRS violated the federal labor statute and negotiated agreements by denying official time to NTEU representatives attempting to represent bargaining unit employees in background investigation interviews. Whether IRS acts unlawfully and contrary to negotiated agreements in failing to take steps to assure that OPM investigators afford employees their right to union representation, if requested, in such interviews. STATUS: NTEU filed a national grievance on November 17, A grievance meeting was held on December 17, 2009, followed by a conference call on January 26, IRS denied the grievance on March 30, and NTEU invoked arbitration on April 26. Arbitration is scheduled for September 15 16, The case will be handled together with #30.

8 8 24. NTEU and IRS NTEU File No Attorneys: O Duden/Atkin/Bialczak ISSUE: Whether IRS violated the Fair Labor Standards Act by failing to compensate Case Advocates in the Taxpayer Advocate Service (TAS) for overtime worked before and after their shifts and on weekends, holidays, and days off, due to excessively high inventories and tight deadlines. STATUS: NTEU filed a national grievance and information request on April 17, IRS has now produced information responsive to the request. A grievance meeting was held on October 22, and a conference call was held on December 9. We provided IRS further information on February 4, Case advocates participated in an on-line survey to collect more evidence for NTEU. Discussions are continuing. 25. NTEU and IRS NTEU File No ISSUE: Whether the IRS violated the Fair Labor Standards Act by improperly exempting the GS-301 Telephone System Analyst position from coverage of the Act. STATUS: NTEU filed a national grievance and information request on November 13, On June 3, 2010, the parties settled the grievance. Affected employees received a joint NTEU-IRS notice; they should receive back pay by October 1, NTEU and IRS NTEU File No ISSUES: Whether the IRS violated the Fair Labor Standards Act by improperly exempting Series 343 positions, including program analyst, management analyst, management and program analyst at grades 12 and below, from coverage of the FLSA and by failing to properly compensate them for hours worked under the Act. Whether IRS committed an unfair labor practice by repudiating its 1999 settlement agreement with NTEU when it exempted those positions without notifying NTEU of its intent to exempt the positions from coverage under the FLSA. STATUS: NTEU filed a national grievance and information request on November 10, The parties settled the grievance on June 3, Affected employees received a joint NTEU-IRS notice; they should receive back pay by October 1, NTEU and IRS NTEU File No /Bialczak ISSUE: Whether IRS is violating the law, the contract, and a prior settlement agreement between the parties by not paying night differential to employees who are redeeming time off awards and by counting time off awards and religious compensatory time off toward the 8-hour-per-pay-period limit on night differential pay for employees in leave status.

9 9 STATUS: NTEU filed a national grievance on January 30, IRS produced information relevant to the grievance and a grievance meeting was held on June 10, A meeting was held on January 25, 2010, to discuss updated data and settlement discussions are currently ongoing. 28. NTEU and IRS NTEU File No Attorneys: O Duden/Atkin ISSUE: Whether the Office of Chief Counsel violated the Fair Labor Standards Act by improperly exempting paralegal specialists, Series 950, at all grades, from coverage of the FLSA and by failing to properly compensate them for hours worked under the Act. STATUS: NTEU filed a national grievance and information request on September 24, A grievance meeting was held on February 11, 2009, at which Chief Counsel agreed that the position was improperly exempted. A settlement agreement was signed on September 11, 2009, and affected employees received notices and statements of their recovery on January 8. Employees should have received their back pay in May. 29. NTEU and IRS NTEU File No ISSUE: Whether the IRS violated federal law by failing to pay both Sunday and holiday pay to employees who were regularly scheduled to work on Sundays that were also federal holidays. STATUS: NTEU filed a national grievance on February 14, IRS has acknowledged that it erred in calculating employees pay. A settlement agreement was signed on July 21, IRS has recently furnished additional information. Affected employees were sent notices during the week of February 16, We are awaiting further information about the adjudication of any claims filed under the settlement. 30. NTEU and IRS NTEU File No Attorneys: O Duden/Atkin/Bialczak ISSUE: Whether IRS committed unfair labor practices and breached its agreements with NTEU by failing to ensure that OPM investigators conducting background investigations of IRS employees honored employees statutory and contractual rights to union representation in background investigation interviews. STATUS: A national grievance was filed on January 23, 2008, and arbitration was simultaneously invoked. NTEU filed an information request on January 30, Subsequent factual developments, including the transfer of investigatory authority to OPM, delayed the processing of this grievance. NTEU filed a second grievance, with additional allegations, on November 18, (See #23.) IRS denied that grievance and this one on March 30, The two matters will proceed together to arbitration, scheduled for September 15 16, 2010.

10 NTEU and FCC NTEU File No ISSUE: Whether the FCC violated the Fair Labor Standards Act by misclassifying certain positions as exempt from FLSA coverage and violated the labor statute by failing to provide requested information to NTEU. STATUS: A national grievance was filed on September 13, A grievance meeting was held on November 20, The parties met again on May 2, 2008, after NTEU reviewed the information supplied by FCC. NTEU invoked arbitration on April 10, After a meeting with the new General Counsel of the FCC in August 2009, the parties have been meeting regularly to work through the disagreements over the grieved positions. 32. NTEU and PTO NTEU File Nos. 5403, 5407 ISSUE: Whether PTO violated the Fair Labor Standards Act by misclassifying certain positions as exempt from coverage under the FLSA. STATUS: A national grievance was filed on April 11, 2007, and was supplemented by a grievance filed on September 27, PTO denied both grievances, and arbitration was invoked. After invocation, PTO converted the positions covered by the grievance to FLSA-nonexempt status. The parties signed a settlement agreement on October 26, Affected employees were notified of their recovery or right to file a claim, and all appeals have been resolved. The parties signed the final settlement agreement on February 26, Back pay has now been issued to affected employees. 33. NTEU and CBP NTEU File No ISSUE: Whether CBP violated the Fair Labor Standards Act by failing to properly pay overtime compensation to GS-12 and GS-13 Import Specialists who did not join Grandits v. United States, or who were not properly reclassified pursuant to that case. STATUS: A grievance was filed on May 4, Arbitration was invoked on July 13, The parties are engaged in discussions in an attempt to resolve this matter. 34. NTEU and CBP NTEU File No ISSUE: Whether CBP violated the collective bargaining agreement by requiring employees to participate in interviews conducted by personnel of the ICE Office of Professional Responsibility or the DHS Office of Inspector General when the interviews could result in discipline and the employees were denied contractually guaranteed rights.

11 11 STATUS: A grievance and information request were filed March 15, Arbitration was invoked on August 18, 2006, and an arbitration hearing was held on September 18, A favorable decision was issued on February 29, 2008, and CBP filed exceptions on April 3, NTEU s opposition to the CBP s exceptions was filed on May 8, Awaiting decision. (See #8.) 35. NTEU and CBP NTEU File No /Sheehy ISSUE: Whether CBP violated the Fair Labor Standards Act by improperly exempting Auditors (GS- 511) (including Computer Audit Specialists), Chemists (GS-1320), Textile Analysts (GS-1384), Field Analysis Specialists (GS-1801), and Information Technology Specialists (Field Technology Officers or FTOs) (GS-2210) from FLSA coverage. STATUS: A grievance was filed February 6, Arbitration was invoked May 16, A hearing was held on July 17 19, 2007, to present evidence on the Auditor and Field Analysis Specialist positions. An additional hearing was held on November 28 29, 2007, to present evidence on the Chemist and Textile Analyst positions. An additional hearing was held on January 25 & 28, 2008, to present evidence on the FTO position. A favorable decision covering the Auditor and Field Analysis Specialist positions was issued on September 11, In a decision issued on September 29, 2008, Arbitrator Vaughn found that the positions of Chemist and Textile Analyst were FLSA-exempt but that the FTO position was non-exempt. A hearing before the Arbitrator regarding the appropriate remedy was held on March 16, In May and June 2009, the parties filed remedy briefs. On November 25, 2009, the Arbitrator issued an award of liquidated damages for the Auditors, Field Analysis Specialists and FTOs, along with a ruling that they are entitled to recover for the three-year period prior to the filing of the grievance because CBP s FLSA violation was willful. On December 22, 2009, CBP filed exceptions with the FLRA to the Arbitrator s award with respect to the Auditors, claiming that the Arbitrator erred in concluding that they are FLSA covered. NTEU filed an opposition on January 26, In the meantime CBP and NTEU are trying to work out the correct formula for back pay calculations so that the remedial phase can begin. 36. NTEU and FDIC NTEU File No A1 Attorneys: O Duden ISSUE: Whether the FDIC violated the collective bargaining agreement and the pay-for-performance compensation agreement when it failed to allocate Corporate Success Awards to employees in a fair and non-discriminatory manner, and further, whether its subjective decision-making discriminated on the basis of race, color, and age in violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. STATUS: On July 16, 2007, we received an unfavorable decision from the arbitrator. NTEU filed exceptions to the FLRA on August 20, FDIC s response was filed on September 20, (See #9.)

12 NTEU and FDIC NTEU File No A2/A3 Attorneys: O Duden ISSUE: Whether the FDIC s pay for performance program (substantially similar to its Corporate Success Award program) resulted in discrimination on the basis of race, color and age and also violated the parties collective bargaining agreement. STATUS: NTEU filed a grievance in connection with contribution year-2005 on May 15, 2006, and invoked arbitration on August 4, NTEU filed a grievance in connection with contribution year on April 17, 2007, and invoked arbitration on May 16, Both grievances are currently being held in abeyance. (See #36.) 38. NTEU and CBP NTEU File No A3 ISSUE: Whether legacy Customs Inspectors and Canine Enforcement Officers (now CBPOs) are entitled under the Customs Officer Pay Reform Act to overtime pay for time spent outside regular working hours, including time related to firearms maintenance and certain canine-related tasks. STATUS: The grievance was filed on October 15, Between October 15 and January 7, 2005, NTEU conducted an online survey among employees potentially affected by this grievance. On December 6, 2004, NTEU invoked arbitration. The case was consolidated for hearing with #39, and a hearing was held on April 4, Efforts to settle this case and case #39 came to a halt. Post-hearing briefs were filed on June 13, 2008, and reply briefs were filed on June 27, A favorable decision was issued on October 1, The parties submitted claims process proposals to the Arbitrator on January 23, 2009, and met with the Arbitrator on April 1, 2009, to discuss the proposals. Additional submissions were filed on June 12 and July 10. On November 11, 2009, the Arbitrator clarified his interim award on the meaning of officially assigned and imposed the claims process proposed by NTEU. CBP filed exceptions to the Arbitrator s award on December 10, NTEU filed an opposition to their exceptions on January 14, NTEU and CBP NTEU File No A4 (legacy Customs) ISSUE: Whether CBP violated the Fair Labor Standards Act by failing to classify legacy Customs CBPOs as covered by that statute. STATUS: The grievance was filed in June Arbitration was invoked, and the case was consolidated for hearing with #38. A hearing was held on April 4, A favorable decision was issued on October 1, The parties submitted claims process proposals to the Arbitrator on January 23, 2009, and met with the Arbitrator on April 1, 2009, to discuss the proposals. Additional submissions were filed with the Arbitrator on June 12 and July 10. On November 11, 2009, the Arbitrator clarified his interim award on the meaning of officially assigned and imposed the claims process proposed by NTEU. On December 10, 2009, the Agency filed exceptions to the Arbitrator s award. NTEU filed an opposition to the Agency s exceptions on January 14, 2010.

13 NTEU and CBP NTEU File No A5 (legacy INS) ISSUE: Whether CBP (1) violated the Fair Labor Standards Act by failing to classify legacy INS inspectors who are now Customs and Border Protection Officers as covered by that statute, and (2) violated COPRA by failing to compensate officers properly. STATUS: CBP s October 24, 2008 reply letter states that it has determined the INS CBPO employees have not engaged in any unpaid COPRA and/or FLSA-covered compensable hours as alleged. NTEU s grievance was denied. Arbitration was invoked on November 4, This case is being held in abeyance pending the outcome of #s 38 & NTEU and CBP NTEU File No A6 (Agriculture Specialist) ISSUE: Whether CBP (1) violated the Fair Labor Standards Act by failing to classify Agriculture Specialists as covered by that statute, and (2) violated COPRA by failing to compensate officers properly. STATUS: CBP s reply letter of October 24, 2008 states that CBP has determined that the employees have not engaged in any COPRA and/or FLSA-covered overtime for which they have not been compensated. NTEU s grievance was denied. Arbitration was invoked on November 4, This case is being held in abeyance pending the outcome of #s 38 & NTEU and CBP NTEU File No A7 (July 04 CBA) ISSUE: Whether CBP violated the Fair Labor Standards Act (FLSA) or Customs Officer Pay Reform Act (COPRA) by failing to properly compensate CBPOs hired after July 24, STATUS: On May 20, 2010, NTEU filed a national grievance under the new interim CBP collective bargaining agreement claiming that CBP has violated COPRA and/or the FLSA by failing to pay appropriate overtime to CBPOs hired after July 24, NTEU awaits CBP s response to our information request while this case is held in abeyance pending the outcome of #s 38 & NTEU and SEC NTEU File No /Wilson ISSUE: Whether SEC violated the Fair Labor Standards Act by improperly exempting various occupational series from FLSA coverage. STATUS: NTEU filed a national grievance on November 5, 2002, covering approximately 30 position classifications. NTEU invoked arbitration on December 20, SEC agreed to reclassify various

14 14 positions as covered by the FLSA, effective April 30, SEC further agreed to reclassify Paralegal Specialists (grades 11-13), effective October 29, 2006, and Legal Instruments Examiners (grades 8-9), effective November 26, On March 17, 2008, NTEU and SEC reached a partial settlement that provides a remedy for the SEC s admitted misclassification of certain additional positions. Individuals affected by the March partial settlement have now received their settlement payouts. On November 26, 2008, the arbitrator issued a decision reclassifying Securities Compliance Examiners (grades 11-14) as covered by the FLSA. Examiners are now receiving settlement payouts. Individuals through grade 13 in the remaining four positions covered by the grievance ((Internet Surveillance Specialist, Market Specialist, Investor Assistance Specialist, and ARP Specialist) have also been reclassified and received notices concerning the remedial process in January Legal Terms: ABEYANCE or STAYED: A case held in abeyance or stayed means that no further action on that case will be taken until a specific event takes place; usually a decision on a similar case. AMICUS: An amicus brief is a brief by someone who is not a party in the case but is interested in the issue and will be affected by the outcome. Literally means friend of the court. EN BANC: A request for rehearing en banc means that the entire roster of judges from a particular court will review the case. Normally in the Court of Appeals, the panel has three judges and in the district court only one judge hears a case. PETITION FOR CERTIORARI: A petition for certiorari is filed in the Supreme Court and is a request for the Court to accept the case for consideration. MOTION TO INTERVENE: Movant asks the court for permission to participate in a case in which the movant is not a party. REMAND: Appeals court returns the case to the district court for a new decision in conformance with the appeals court s opinion. LEAVE: Asking permission of the court to do some act. DISCOVERY: Process by which information is shared by the parties for the purpose of educating each party on the strengths and weaknesses of the other party s case.