On June 19, 2014, the U.S.

Supreme
Court issued its decision in Lane v. Franks,
__ U.S. __ (2014), which concerned First
Amendment free-speech protections for
public employees. In an earlier decision,
Garcetti v. Ceballos, 547 U.S. 410 (2006),
the Supreme Court distinguished
between employee speech and citizen
speech. Tere, the Court held that citizen
speech about a matter of public concern
was entitled to protection, but that
when public employees make statements
pursuant to their ofcial duties, they
are not speaking as citizens for First
Amendment purposes.
In the recent Lane decision, a public
employee testifed at a judicial proceeding
regarding the events that led him to
terminate a subordinate employee who
was misusing public funds. Lane was
subsequently terminated himself and he
sued his employer alleging that the fring
was retaliation for his testimony. Te lower
courts held that because Lane learned of
the subject matter of his testimony in the
course of his government employment,
his testimony was unprotected employee
speech as opposed to citizen speech
and therefore not entitled to First
Amendment protection.
Te Supreme Court reversed and
clarifed that under Garcetti the critical
question is whether the speech at
issue is ordinarily within the scope of
an employees duties, not whether it
merely concerns those duties. Te Court
explained that the mere fact that a citizens
speech concerns information learned
through public employment does not
transform that speech into unprotected
employee speech. Because providing
sworn testimony was not ordinarily
within the scope of Lanes duties, the
Court held that Lanes testimony was
entitled to First Amendment protection.
Te Court lef open the question of
whether testimony provided by public
employees who routinely testify as part
of their employment duties should be
similarly protected.
NTEU www.nteu.org
Status Call
OctoberDecember 2007 Vol. XVI, No. 5
N B
VOL. XXIII, NO. 2 MAYAUGUST 2014
Te U.S. Court of Appeals for the District of Columbia Circuit
has reversed a favorable decision by the Federal Labor Relations
Authority (FLRA) in the Department of Homeland Securitys Ofce
of Inspector General (OIG) investigation case. As we previously
reported, in 2012, the FLRA ordered DHS to rescind its agency head
disapproval of Article 22, Section 2 of the CBP-NTEU term contract.
See Status Call, Vol. XXI, No. 3 (Aug.-Nov. 2012).
Tat provision ensures that bargaining unit
employees receive the full negotiated protections
of Article 22 of the term agreement whenever any
CBP representative, including representatives of
DHSs OIG, interviews employees regarding any
criminal or noncriminal matter.
In reversing the FLRA, the D.C. Circuit held
that NTEUs proposal would compromise the
independence of the OIG. It found that the
proposal was therefore inconsistent with the Inspector General Act
of 1978 and, accordingly, nonnegotiable. Te D.C. Circuits decision
is in line with an earlier decision from the Fourth Circuit, Nuclear
Regulatory Commission v. FLRA, 25 F.3d 229 (4th Cir. 1994), in
which that court found a similar proposal to be nonnegotiable.
Te D.C. court rejected the FLRAs (and NTEUs) arguments that
intervening Supreme Court case law called into question the NRC
decision, and it refused to create a circuit split on the issue, i.e.,
where two appeals courts reach difering conclusions.
DHS OIG acknowledges its statutory obligation to permit union
representation if requested by the employee. At an investigatory
interview, a union representative may clarify questions, clarify
answers, advise the employee, assist in providing favorable or
extenuating facts, and suggest others who may have relevant
information.
Te June 3 decision means, however, that the OIG
will not be bound by the language in the NTEU-
CBP contract. Te OIG is not required to inform
employees of their right to NTEU representation
prior to an interview that could lead to discipline.
It is not required to inform local chapters that OIG
ofcials will be coming to the port to conduct an
investigatory interview. Nor will the OIG be required
to tell employees when an investigation is completed,
even if the investigation does not result in any
criminal or administrative action.
Tis court decision does not apply to representatives of the
agency, such as Internal Afairs. CBP investigators must follow the
contract language.
Under these circumstances, it is more important than ever that
you inform all employees that in the event they are contacted by
the DHS OIG to be interviewed, they immediately inform the local
chapter and request an NTEU representative at the beginning of the
OIG interview.
Disappointing Decision in DHS OIG Investigation Case
A REPORT ON NTEU LITIGATION
Supreme Court Clarifes the Scope of Public Employees Free Speech Rights
FLSA Coverage Extended to more than 275 CFPB
EmployeesTanks to preliminary discussions concerning
NTEUs November 2013 grievance against the Consumer Financial
Protection Bureau, more than 275 CFPB employees will now
be covered under the Fair Labor Standards Act (FLSA). Tese
employees will be entitled to their full
time-and-a-half pay for overtime work,
as well as the choice of overtime pay
or compensatory time of when they
are required to work overtime. NTEU
and CFPB are in settlement discussions
concerning a retroactive back pay
remedy that will allow these newly covered employees to recoup
overtime pay owed over the past several years.
Te current reclassifed positions are: Consumer Response
Specialists; Paralegal Specialists; Consumer Financial Protection
Analysts, at grades 51 (comparable to GS-11) and below; and
Examiners, at grades 51 and below. In addition to the pending
remedial issues, we continue to discuss the remaining part of the
grievance that applies to higher graded positions including 52s
and 53s and will work to settle those cases or bring them before
an arbitrator.
NTEU Ofers Hatch Act TrainingAs we approach the busy
election season, NTEU is providing guidance to local NTEU
chapters and union members on the complexities of the Hatch Act.
As most NTEU members know, the Hatch Act governs how and
when federal employees may engage in political activity. Given the
harsh penalties associated with violations of the Act, it is especially
important that employees know their rights and limitations under
the law during election season. On July 17, 2014, NTEU attorneys
met with members at the Federal Election Commission to answer
questions and ofer advice to employees.
Unfavorable Decision in IRS Background Investigation
Interview CaseFor several years, NTEU has been litigating
the issue of employee access to union representation during
background investigation interviews of IRS employees conducted
by the Ofce of Personnel Management. On June 17, 2014, the D.C.
Circuit denied NTEUs petition for review of a portion of a Federal
Labor Relations Authoritys decision on this issue. Te courts June
17 decision means that covered employees (i.e., for the most part,
employees in the competitive service) are not entitled to union
representation during OPM background investigation interviews.
While we are disappointed with this outcome, the favorable
ruling that NTEU earlier secured before the FLRA as to excepted
employees remains intact. Consequently, excepted employees are
entitled to union representation, if requested, during background
investigation interviews conducted by OPM. In addition, the
courts recent decision does not afect or otherwise reduce every
(covered and excepted) employees statutory and contractual rights
to union representation during investigatory interviews conducted
by the IRS itself or its representatives.
NTEU Arbitrates FLETC Overtime
GrievanceLast May, NTEU learned
that certain newly-hired CBPOs were
being ordered to work uncompensated
overtime during their basic training
course at the Federal Law Enforcement
Training Center (FLETC). NTEU fled a
national grievance alleging that CBP violated the Customs Ofcer
Pay Reform Act (COPRA) and the Fair Labor Standards Act when
it required employees to work this uncompensated overtime. At a
June 24, 2014 hearing, NTEUs witnesses testifed that they lost as
much as forty (40) minutes of personal time a day because they
were required to report early for classes, and that CBP managers
at FLETC knew about and tacitly endorsed the early-arrival policy.
Post-hearing briefng will be completed in October, afer which the
arbitrator will decide the matter.
NTEU www.nteu.org
Status Call
OctoberDecember 2007 Vol. XVI, No. 5
N B
VOL. XXIII, NO. 2 MAYAUGUST 2014
www.nteu.org
Back issues of Status Call can be found at NTEU.org/UnionOfce.