6/12/09: Yesterday, in NTEU's latest victory, the United States Court of Appeals for the District of Columbia Circuit ruled in NTEU's favor on the SEC's appeal of a decision by the Federal Labor Relations Authority (FLRA) requiring the SEC to make back pay distributions to all SEC employees who should have received within grade increases (WIGIs) in 2002. The SEC filed this appeal last July, after the FLRA rejected the agency's first appeal from NTEU's initial arbitration victory.

This case began when NTEU filed an Unfair Labor Practice (ULP) complaint against the SEC in 2002, asserting that the agency had violated federal labor law by unilaterally implementing its new pay system and terminating WIGIs without first completing bargaining with the union. The SEC unilaterally ceased giving employees WIGIs as of May 19, 2002, adversely affecting many SEC employees who were due to receive salary raises. This state of affairs continued for approximately six months until November 8, 2002, when the Federal Service Impasses Panel finally issued a decision regarding the compensation negotiations impasse between NTEU and the SEC.

The DC Circuit yesterday upheld the FLRA's decision and rejected the SEC's claim that the FLRA should have afforded deference to the agency's choice to unilaterally implement its pay system. The Court also found that the SEC had failed to meet its burden to prove its chosen affirmative defense -- that its unilateral implementation of the new pay system by May 19, 2002 was somehow "necessary to the functioning of the agency" -- because it failed to show that the change was in response to any "overriding exigency" or some similarly compelling need.

As a direct result of the SEC’s decision to proceed with the appeal to the DC Circuit in this case, for the past year hundreds of the agency’s own employees did not receive the back pay to which they were entitled as a result of the agency's violation of federal labor law. Instead, those employees were required to wait for a final decision by the DC Circuit. Indeed, those employees have waited now for seven years.

Chapter 293 President Greg Gilman noted today that "This case once again demonstrates that, when faced with the need to litigate to vindicate employees' rights, NTEU will persist in the fight, even in the face of years of obstacles thrown in its path by agency management. Chapter 293 now stands ready to work with the SEC to ensure that it remedies its past violations of federal labor law by making back pay distributions to all affected employees in a fair and expeditious fashion. We also look forward to working closely with new senior management at the SEC to ensure that the poor decisions of previous agency leaders on compensation issues, such as the decisions made in this case, will become a thing of the past. Thank you to all of the dues paying NTEU members at the SEC, without whom it would not be possible for the union to pursue matters like this one."

NTEU has not yet been provided with a list of the names of employees who were due to receive a WIGI between May 19, 2002 and November 8, 2002. When the union has further information regarding the remedy we will provide it to employees. Please check Chapter 293's website regularly.