May 2, 2008

M E M O R A N D U M

TO: Chapter Presidents

RE: Litigation Update

SUMMARY: Attached is an updated edition of the Litigation Update, a complete compilation of the cases currently being litigated by NTEU’s Office of General Counsel. Following are highlights of some of the important litigation developments for March and April 2008.

On April 3, 2008, the U.S. Court of Appeals for the Ninth Circuit rejected arguments offered by IRS in justification for its refusal to comply with an arbitral award requiring compensation of certain employees for time spent commuting to a temporary duty assignment, pursuant to the terms of the then-current collective bargaining agreement. This decision is the culmination of eight years of litigation to enforce a 2000 arbitration decision. During the course of this litigation, NTEU was forced to go to the U.S. Court of Appeals for the D.C. Circuit to obtain a reversal of an adverse procedural ruling by the FLRA. After the FLRA ruled in favor of NTEU on the merits, IRS challenged that decision in the Ninth Circuit. NTEU intervened in this proceeding in support of the FLRA’s application for enforcement of its order and in opposition to the IRS’ petition to set it aside. IRS v. FLRA, Nos. 05-76031, 05-76391 (9th Cir.). (See #3.)

On February 29, 2008, an arbitrator issued a favorable decision finding that Customs and Border Protection had violated the collective bargaining agreement when it required employees to participate in investigatory interviews conducted by personnel with the DHS Office of Inspector General who denied the employees their contractually guaranteed rights. This decision establishes a right to contractually negotiated rights that supplement the statutory right to union representation even when the interviews are conducted by OIG personnel. CBP has taken exceptions to the arbitrator’s decision. (See #s 13 & 31.)

NTEU has filed a brief on behalf of an employee in an important case testing whether employees alleging violations of the Uniformed Services Employment and Reemployment Rights Act may pursue relief before the Merit Systems Protection Board when their claims also fall within the scope of the negotiated grievance-arbitration process. The brief was filed on March 25 in the U.S. Court of Appeals for the Federal Circuit. Russell v. MSPB, No. 2008-3106 (Fed. Cir.). (See #5.)

On April 18, NTEU filed a lawsuit under the Freedom of Information Act seeking information from the Transportation Security Administration regarding recertification tests that all Transportation Security Officers must pass in order to retain their employment with TSA. TSA refused to furnish the information voluntarily, thereby necessitating this lawsuit. NTEU v. TSA, No. 08-0675 (D.D.C.). (See #7.)

NTEU is participating as amicus in a case on remand from the Supreme Court, Whitman v. U.S. Dept. of Transportation, No. 3:02-cv-0112 (D.Alaska). In a memorandum in opposition to the government’s motion to dismiss, filed on April 8, NTEU set forth the reasons why the court has jurisdiction to resolve constitutional and statutory claims by a federal employee, and why the employee need not exhaust other remedial options before proceeding in court. (See #10.)

NTEU filed a grievance on April 28 against the National Credit Union Administration alleging that it violated the Fair Labor Standards Act by excluding Credit Union Examiners from coverage under the FLSA. (See #18.) In another FLSA case against the SEC, NTEU reached a very favorable partial settlement on March 17, which provides a remedy for the SEC’s misclassification of certain positions from coverage under the FLSA. (See #44.)

Colleen M. Kelley

National President

Attachment