A federal employee union that threw its support behind Donald Trump prior to the 2016 election is in the midst of suing the president’s administration, which is fighting to maintain a policy that limited overtime pay for the group’s members.
The National Immigration and Customs Enforcement Council’s lawsuit pending before the U.S. Court of Appeals for the D.C. Circuit challenges ICE’s decision to change the agency’s overtime policy for its law enforcement personnel without first negotiating with the union. The council initially won its case with an arbitrator before the Federal Labor Relations Authority overturned that decision.
The lawsuit, which impacts virtually all of ICE’s 5,000 agents, is an awkward point of tension between the ICE employees and the Trump administration. The president has repeatedly heaped praise and admiration on ICE’s workforce. In July, Vice President Mike Pence took a trip to the agency to reiterate the administration’s support for the agency and its employees at an event titled a "Salute to the Heroes of ICE." Trump followed that by hosting ICE employees at the White House to further celebrate their work.
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“We’re here today to salute the incredibly brave patriots who keep America safe: the heroes of ICE and CBC [sic],” Trump said. “To everyone here today from Immigration and Customs Enforcement, and Customs and Border Protection, I want to you let you know that we love you, we support you, we will always have your back, and I think you know that.”
Despite that promise, the Homeland Security Department intervened in the union’s lawsuit. At issue are the calculations behind administratively uncontrollable overtime, a type of premium pay many law enforcement agencies use for employees who work a substantial amount of “irregular, unscheduled overtime.”
ICE calculates whether employees are eligible for the extra pay by determining the average number of hours they worked that consisted of overtime. Until 2013, the agency deducted hours employees took as annual and paid leave from the total hours worked, making it easier for employees to qualify for premium pay and to earn higher rates. After various investigations into the use of administratively uncontrollable overtime, DHS determined ICE’s policy to discount leave hours did not comply with governmentwide regulations set by the Office of Personnel Management. DHS instructed ICE to immediately end the practice and ICE subsequently sent an email to employees alerting them to the change.
ICE did not notify its union until after it changed the policy and offered only post-implementation bargaining. The council filed a grievance and the two sides went to arbitration, where ICE argued it was fixing an unlawful policy to comply with governmentwide regulations and therefore did not have to bargain over the change. The arbitrator ruled that ICE violated its collective bargaining agreement and ordered the agency to issue back pay and reinstate the old administratively uncontrollable overtime determination rules.
Upon appeal, a majority of FLRA members voted to overturn the arbitrator’s decision, arguing the OPM regulations were clear and applicable. A dissenter on the panel said ICE’s failure to bargain created chaos and the agency had to at least negotiate over the “impact and implementation” of the change, if not the change itself, to ensure a de minimis impact on employees. The dissenter, Ernest DuBester, said the majority opinion would set the precedent that agencies only have to bargain after implementation of new policies in similar cases.
The lawsuit is not the first time the National ICE Council has soured on the Trump administration. Chris Crane, the union’s president who declined to comment for this story, said in July the administration was “playing by the same failed playbook” on immigration policy and had failed to innovate. He complained that Trump had named career Border Patrol agent Ron Vitiello as ICE director without consulting his union. A month later, the council filed its lawsuit.
After initially being scheduled to file its brief with the court on Nov. 5, the day before the midterm elections, the council asked for an extension and will now make the filling in December. ICE is expected to submit its rebuttal in January.