The Federal Labor Relations Authority has sustained NTEU's Bid, Rotation and Placement arbitration win including the arbitrator's back pay remedy.
In his decision, the arbitrator found that CBP violated the contract when it reassigned employees out of the work unit they had bid to and been placed as a result of the Article 13, Bid, Rotation and Placement (BRP) process. In his decision, the arbitrator agreed with NTEU’s position that Article 13 permits employees to work solely in their assigned work unit for the entire fiscal year and prohibits CBP from requiring employees to work in multiple work units.
NTEU is pleased to announce that the Federal Labor Relations Authority, in the attached decision, has rejected CBP’s appeal and sustained the above-referenced arbitration award, including the back pay remedy ordered by the arbitrator to remedy CBP’s violation of the contract. These remedial provisions ordered by the arbitrator are as follows:
The implementation of this back pay process shall be in accordance with the following procedures or one proposed in lieu thereof and agreed upon jointly by and between the parties:
1.Within 60 calendar days of this decision the agency will provide to the local union chapters a list of the incidents within their chapter’s jurisdiction where it assigned someone outside the unit to which he/she properly bid. The list should include; the reassigned employee’s name and permanent work unit, the unit to which temporarily
assigned, the number of hours assigned outside their permanent unit, date of the assignment, the name of an employee who would normally have been assigned the work had the agency assigned the work using the contract overtime assignment procedures, and the extent of the compensation that employee would have received if assigned the work on overtime.
2.The union will have 30 calendar days after receiving this list, to identify those reported incidents with which it agrees and those with which it disagrees, including any/all omissions from the agency’s list.
3.Within the 60 calendar days following notification from the union of its agreement to the incident data as reported by CBP, the agency will timely compensate those employees due back pay.
4.Upon notification from the union of disagreements with the agency’s list, the parties will have an additional 30 calendar days to either reach agreement or to notify Arbitrator Goldstein, pursuant to his retained jurisdiction. The arbitrator will resolve those disputes under a process determined by him with the advice of the parties.
5.The parties may, by mutual agreement, substitute another process for distributing back pay. The intent here would be to avoid disputes with individual claimants if they choose a lump sum compensation approach.
In addition, by law, CBP is required to pay employees interest on their back pay awards.
By law, this decision is final and is not subject to appeal to the federal courts. Regardless, I will let you know if they file such an appeal. In any event, CBP has 60 calendar days from June 23, 2014, to inform you of the back pay entitlement of those that you represent for being required to work in more than one work unit. You then have the right to accept or challenge CBP’s findings. If necessary, NTEU has the right to return to the arbitrator to resolve any local back pay disputes.
NTEU has approached CBP and asked if they will be working with NTEU to collaboratively implement this BRP back pay remedy in accordance with the attached decision. We are awaiting their response. Such a collaborative approach was used with success in the ‘90s in implementing other national back pay settlements by having the parties review relevant records together at the local level which facilitated mutual local back pay decisions. As NTEU has explained to CBP, the alternative would involve local official time requests and requests for information that, depending on how CBP responds, could lead to numerous disputes and grievances.
The time frame that applies to this back pay award runs from fiscal year 2012 to the present. As such, those local BRP grievances that were held in abeyance pending this decision have been essentially resolved in NTEU’s favor as a result of this decision and should be used when analyzing the back pay information provided by CBP. I will let you know how requests for official time and information should be handled once CBP indicates how it intends to implement the arbitrator’s remedy.
This BRP arbitration win is the result of the joint efforts of NTEU chapter leaders, the employees we represent, and NTEU staff. Please work with your local NTEU Field Representatives in implementing the arbitrator’s remedial award within the above-referenced time frames and be ready to provide NTEU National with all areas of dispute and related documentation in the event CBP forces NTEU to return to the arbitrator in order get an appropriate and fair monetary back pay remedy.