NTEU's Three-Year Fight For Overtime Pay
In January 2002, FLETC told federal law enforcement agencies, including Customs, that because of increased requests for training, a six-day-a-week training schedule would be implemented.
At NTEU's urging, Customs agreed to properly compensate employees covered by the FLSA for their sixth day of training from the outset of the new training schedule. Customs refused, however, to compensate Customs inspectors and CEOs, who were covered by the Customs Officer Pay Reform Act (COPRA), for their sixth training day.
NTEU filed a grievance in February 2002 seeking compensation for inspectors and CEOs under COPRA. An arbitrator denied that grievance in late summer 2003, ruling that inspectors and canine enforcement officers attending FLETC basic training were not entitled for double-time pay as provided under COPRA for the sixth work day in a week. He said the reach of COPRA was limited by another statute—the Government Employees Training Act (GETA), which generally prohibits agencies from paying overtime pay for training.
NTEU was undeterred. In a letter to CBP a short time after the arbitrator’s decision, the union demanded the agency stop treating Customs officers as second-class citizens by forcing them to perform unpaid work. At the same time, NTEU took the matter to Congress, pressing for a legislative solution to the problem.
At the end of 2003 NTEU filed another national grievance alleging that the officers had been improperly exempted from coverage of the Fair Labor Standards Act (FLSA).
The use of the FLSA approach was not available to NTEU at the time of its first national grievance on this issue; because the national agreement in force at the time excluded matters pertaining to the application or interpretation of the FLSA from the scope of the grievance procedure.
In late October 2003, however, NTEU and CBP negotiated changes to their national contract, one of which restored FLSA matters to coverage under the grievance procedure.
That step, in turn, paved the way for NTEU to demonstrate that these employees had been wrongfully excluded from FLSA coverage. The union’s success in making that case to a third-party neutral decision-maker resulted in the arbitration victory that will finally pay for the sixth day of work.
Legal Arguments Behind the Win
For arbitrator Margery J. Gootnick, answering the question of whether or not legacy Customs officers were entitled to overtime pay for a sixth basic training day each week required her to assess the proper interpretation of the Customs Officer Pay Reform Act (COPRA) and its relationship to the Fair Labor Standards Act (FLSA).
While the Bureau of Customs and Border Protection (CBP) maintained that COPRA excluded these employees from FLSA overtime pay, Gootnick reviewed COPRA and the FLSA, and their history and regulations, and correctly applied the FLSA which mandates overtime pay.
In short, she said that the Customs Service, and then CBP, improperly excluded Customs inspectors and canine enforcement officers from FLSA coverage—thus short-changing them by making them work six days a week during their basic training at the Federal Law Enforcement Training Center (FLETC) in Glynco, Ga., but paying them for only five days each week.
In enacting COPRA, Gootnick said, “Congress intended to assist the agency in administering its overtime and premium pay policies more efficiently”—but not to deny employees rightfully-due overtime pay, she said.
The arbitrator rejected a variety of CBP arguments, including a motion to dismiss the case on grounds that the issue had already been decided in the earlier arbitration and another claiming that the grievance had not been filed on a timely basis.
As for the substantive arguments, she rejected CBP's position that COPRA is the exclusive statutory provision regulating overtime and premium pay for inspectors and canine enforcement officers. And she rejected CBP's interpretations of the Office of Personnel Management (OPM), Treasury and DHS regulations. CBP claimed that these regulations exclude employees from FLSA coverage.
In her review, Gootnick emphasized that while OPM had in fact proposed excluding inspectors and canine enforcement officers from the FLSA hours of work and overtime provisions, its final regulations on the subject—responding in part to comments submitted by NTEU—did not contain any such direction.
Moreover, she said, CBP couldn’t rely on a Treasury Department regulation implementing COPRA back in 1993 and purporting to remove employees “from coverage of any other statute for pay and compensation purposes,” such as the FLSA, because that was beyond any authority Congress had given to Treasury.
For CBP, under Gootnick’s analysis and based on the arguments NTEU was advancing, there was no place left to go, but to understand that it had treated employees unfairly and improperly.
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