NTEU Litigation Update

The following are highlights of some of the important litigation developments for October 2006 through January 2007.

Under intense pressure from NTEU, the Inspector General (IG) of the Social Security Administration (SSA) has abandoned its attempt to impose enormous civil monetary penalties, ranging up to $3.5 million, on four employees in SSA’s Office of Disability Adjudication and Review. The IG on January 22, 2007, signed an agreement under which it agreed to not pursue any civil, criminal, or administrative action against the employees in connection with decisions that they drafted at the direction of an administrative law judge. See #48. NTEU is also pursuing a grievance against SSA over this misguided action by the IG. See #27.

On January 24, 2007, NTEU filed a civil action against the Director of the Office of Personnel Management. In this action, NTEU argues that regulations authorizing federal agencies to hire applicants for civil service positions under the Federal Career Intern Program are arbitrary, capricious, and contrary to law. As we point out, the rules give agencies excessively broad discretion to depart from competitive service protections and create a de facto two- or three-year probationary period. NTEU v. Springer, No. 1:07CV00168 (D.D.C.). See #14.

NTEU on January 12 filed a complaint on behalf of a Customs and Border Protection Officer (CBPO) in Presidio, Texas, who has been ordered to resign his seat on the nonpartisan City Council. This order, NTEU alleges, violates the CBPO’s First Amendment rights. We filed a motion for preliminary injunctive relief on January 31, and a hearing is scheduled for
February 27. Ramirez v. CBP, No. 1:07-65 (D.D.C.). See #16.

The Ninth Circuit on January 10 issued a decision holding that it did not have jurisdiction to hear a challenge by the National Association of Agriculture Employees (NAAE) to a unit determination by the Federal Labor Relations Authority (FLRA). The FLRA had concluded that Agriculture Specialists at CBP are not “professional employees” for purposes of inclusion in a
bargaining unit. NTEU participated as amicus to explain that the decision is not subject to judicial review, under long-established precedent. NAAE v. FLRA, No. 06-71671 (9th Cir.).
See #7.

On October 27, 2006, the D.C. Circuit granted NTEU’s petition for review of a decision of the FLRA that had reversed a favorable arbitral award. The FLRA had found that collectively negotiated provisions for time-off awards to IRS employees who volunteer to provide customer service support during tax-filing season are contrary to regulations. The court held that the record was ambiguous as to whether the IRS was obligated to give awards to volunteers performing at substandard levels and remanded the case for further factual development. NTEU Chapters 22, 34 & 60 v. FLRA, No. 05-1405 (D.C. Cir.). See #4.

NTEU has filed two complaints alleging agency noncompliance with the Freedom of Information Act. In a complaint filed on October 19, 2006, NTEU argues that CBP unlawfully failed to release records related to its FY ’05 awards program. NTEU v. DHS, CBP,
No. 06CV01812 (D.D.C.). See #17. In the other case filed on January 19, 2007, NTEU asserts that the IRS unlawfully denied NTEU information regarding its private debt collection initiative. NTEU v. IRS, No. 1:07CV00136 (D.D.C.). See #15.

NTEU on January 17 filed a national grievance alleging that CBP had breached a May 1, 2006 settlement agreement relating to the payment of overtime for training at the Federal Law Enforcement Training Center. CPB failed to process requests for payment and failed to provide written confirmation of payment to NTEU, as required by the agreement. See #26.

NTEU filed its opening brief on January 11 and a reply brief on February 1 in the arbitration over the IRS’s continuing use of a form for external hires containing misleading information about adverse action rights available to employees with more than a year’s continuous service. NTEU is also challenging the denial of due process rights to employees who were terminated during their probationary period but who had a year of continuous service.
See #34.

Further days of hearing were held in November and December in the arbitration over the Federal Deposit Insurance Corporation’s Corporate Success Awards program. We are arguing that the program is administered in a subjective fashion that discriminates on the basis of race, color, and age. Briefs will be filed in March and April 2007. See #35. A similar grievance over the Securities and Exchange Commission’s pay-for-performance system had been fully briefed and is waiting for decision by the arbitrator. See #37.