Litigation Update. February 2010

Transcription

1 NTEU Litigation Update February 2010 Inside this issue: Federal Circuit District Court FLRA MSPB Grievances & Arbitrations Click on any of the above links to view the cases filed in that forum. FEDERAL CIRCUIT 1. 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 non critical sensitive position. (NTEU representing Brown.) STATUS: The case has not yet been briefed. On December 30, 2009, the MSPB filed a motion to intervene and requested the case be remanded to the Board for further proceedings. On January 13, 2010, Brown filed a similar motion requesting the case be remanded and also requested the briefing schedule be held in abeyance. DoD filed an opposition on January 27, Brown and the MSPB have filed their replies. Awaiting a decision by the court. 2. Chambers v. Dept. of Interior, No NTEU File No F2 ISSUES: Whether the MSPB erred when it held that statements by former Park Police Chief Chambers were not protected disclosures under Whistleblower Protection Act that concerned a substantial and specific danger to the public health and safety because they concerned staffing and were allegedly not supported by concrete evidence or specific examples. Whether the MSPB erred in finding that the employing agency had shown by clear and convincing evidence that it would have removed Chambers despite the protected disclosures. (NTEU amicus.) STATUS: Chambers petitioned for review of an adverse MSPB decision issued on remand after the Federal Circuit had vacated in part its initial adverse decision. On June 2, 2009, Chambers filed her brief. On June 19, 2009, NTEU filed its brief as amicus on her behalf. The government filed its brief on August 31, Chamber s reply brief was filed on September 14, The court requested that NTEU participate in the oral argument, which was held on February 3, After oral argument the court ordered the parties to engage in mediation efforts for 30 days. A status report is due on March 5, 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. NTEU v. Berry (formerly NTEU v. Springer), No. 1:07CV00168 NTEU File No Court: D.D.C. 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. On June 13, 2007, NTEU moved the court to order the defendant to file the administrative record or, in the alternative, to grant it additional time to respond to the motion to dismiss. 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, OPM has officially indicated that it will not renew its procedural argument that NTEU has waived its right to bring the cause of action. On February 25, 2010, the parties filed a joint proposed scheduling order. A status conference is scheduled for March 4, Ramirez v. CBP, No. 1:07 65 (GK) NTEU File No Court: D.D.C. 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. STATUS: The court granted the requested preliminary injunction on March 12, Ramirez s term expired, and he sought authorization to serve a new term. CBP denied his request, but pledged to take no action against him until this case is resolved. On April 1, 2008, we filed an amended complaint to address CBP s latest denial. CBP has moved to dismiss our complaint, and we have opposed that motion. The case is currently in discovery phase. Ramirez s deposition is scheduled for March 2, FLRA 5. NTEU and CBP, No. 0 AR 4062 NTEU File No ISSUE: Whether the FLRA erred in setting aside an arbitrator s award holding that NTEU could not use the negotiated grievance arbitration procedure to pursue a ULP against CBP, where CBP refused to implement an FSIP decision imposing a union proposal that required CBP to provide a dedicated phone line to receive calls for employees from family members in case of personal emergencies. STATUS: On January 29, 2010, the FLRA ordered CBP to implement NTEU s proposal that CBP ensure that at least one manned telephone is available in each port and dedicated to receipt of incoming emergency telephone messages. 6. 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

3 3 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 has issued an order directing CBP to show cause why the Authority should not dismiss its exceptions as prematurely filed. Both CBP and NTEU responded that the exceptions were timely filed. Awaiting decision. 7. DHS, CBP and NTEU, No. 0 AR 4359 NTEU File No A1 Attorneys: O Duden/Atkin 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 #25.) 8. NTEU and FDIC, No. 0 AR 4286 NTEU File No A1 Attorneys: O Duden/Wilson 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 August 20, 2007, NTEU filed exceptions to the unfavorable decision from the arbitrator dated July 16, (See #27.) FDIC s response was filed on September 20, Awaiting decision from the FLRA. 9. Department of Treasury, IRS and NTEU, No. 0 AR 4161 NTEU File No 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 are discussing how to implement the arbitrator s award. MSPB 10. Conyers v. Dept. of Defense; Northover v. Dept. of Defense, Nos. CH I 1; AT I 1 Attorneys: O Duden/Atkin/Wilson 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.)

4 4 STATUS: The Board sought amicus briefs in a February 10, 2010 Federal Register notice, 75 Fed. Reg NTEU will file 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 whistleblower claim. The case is scheduled to be reactivated on March 18, 2010, and a conference call is scheduled for March 29. GRIEVANCES & ARBITRATIONS 12. CBP and NTEU NTEU File No ISSUE: Whether CBP is in violation of 19 U.S.C. 58c(f) by failing to comply with the Federal Service Impasses Panel s (FSIP) Memorandum of Understanding imposed on April 11, 2008, and also committed unfair labor practices by unilaterally suspending the Foreign Language Awards Program (FLAP) without providing NTEU with notice and an opportunity to bargain. STATUS: NTEU filed a national grievance on February 18, CBP and NTEU NTEU File No Attorneys: O Duden/Atkin/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/Wilson 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

5 5 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, followed by a conference call on January 26, (See #21.) 15. NTEU and IRS NTEU File No Attorneys: O Duden/Atkin 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. Discussions are continuing. 16. 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, A grievance meeting was held on March 18, 2009, at which time IRS conceded that the position was improperly exempted. A meeting was held on October 28, 2009, to discuss the appropriate remedy. The parties are discussing settlement proposals. 17. NTEU and IRS NTEU File No ISSUE: 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, A grievance meeting was held on March 18, at which IRS indicated that the positions had been converted to FLSA nonexempt status. A meeting was held on October 28, 2009, to discuss the appropriate remedy. The parties are discussing settlement proposals. 18. NTEU and IRS NTEU File No /Bialczak ISSUE: Is the IRS 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.

6 6 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. 19. 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 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, NTEU and IRS NTEU File No Attorneys: O Duden/Atkin/Wilson 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. (See #13). 22. 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 FLSA 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, The parties are now actively pursuing settlement. A meeting was held on January 21, 2010, during which the parties reached agreement on many positions. They continue to work through the disagreements over the remaining grieved positions, and another meeting will be held in early March.

7 7 23. 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 have all been 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 totals due to individual employees will be forwarded to the National Finance Center within 30 days requesting issuance of payments. 24. 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. 25. 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. 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 #7.) 26. 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 and 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

8 8 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 Arbitrators, claiming that the Arbitrator erred in concluding that they are FLSA covered. NTEU filed an opposition on January 26, In the meantime CBP is beginning the notice and claims process for the FAS and FTO positions. 27. NTEU and FDIC NTEU File No A1 Attorneys: O Duden/Wilson 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 #8.) 28. NTEU and FDIC NTEU File No A2/A3 Attorneys: O Duden/Wilson 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 2006 on April 17, 2007, and invoked arbitration on May 16, Both grievances are currently being held in abeyance. (See #27.) 29. 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 #30, and a hearing was held on April 4, Efforts to settle this case and case #30 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

9 9 award on the meaning of officially assigned and imposed the claims process proposed by NTEU. CBP filed excep tions 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 #29. A hearing was held on April 4, The parties were engaged in discussions in an attempt to resolve these matters, but the arbitrator was asked to issue a decision when no remedial settlement was reached. 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, NTEU and CBP NTEU File No A5 (legacy INS) /Wilson ISSUES: 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, (See #s 32 and 34.) 32. NTEU and CBP NTEU File No A6 (Agriculture Specialist) /Wilson ISSUES: 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, (See #s 31 and 33.) 33. NTEU and CBP NTEU File No A7 (July 04 CBPOs) /Wilson ISSUE: Whether CBP (1) violated the Fair Labor Standards Act by failing to classify Customs and Border Protection Officers hired after July 2004 as covered by that statute, and (2) violated COPRA by failing to compensate officers properly.

10 10 STATUS: The October 24, 2008 CBP reply stated that it did not receive a proper written designation signed by an employee grievant identifying NTEU as the representative. CBP denied the grievance based on its perception that NTEU does not have the administrative right to file on behalf of the employees through the CBP Administrative Grievance System. (See #s 31 and 32.) 34. 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 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 September 27 29, 2006, the arbitrator conducted a hearing to determine whether Securities Compliance Examiners (grades 11 14) should be reclassified as covered by the FLSA. The arbitrator issued a favorable decision on November 26, SEC has changed the examiners FLSA exemption status, and remedial settlement packages should begin going out to examiners by end of year. Agreement has been reached on the remaining four positions covered by the grievance. Pursuant to that agreement, employees through grade 13 in the Internet Surveillance Specialist, Market Specialist, Investor Assistance Specialist and ARP Specialist positions will be reclassified and covered by the March 2008 remedial agreement.

11 11 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.