Betsy DeVos, Department of Education, Place Unlawful Contract Upon Union Employees
Disclosure: The author is an employee of the Social Security Administration and a union representative of the American Federation of Government Employees (AFGE) Local 3239. A formal inquiry was sent to the Office of Special Council (OSC) regarding whether an article such as this would violate the Hatch Act and OSC responded that regardless of other content on the site, this would not violate the Hatch Act so long as the article itself does not advocate for or against any candidate, party, or partisan group.
“Among other things, the Hatch Act prohibits a federal employee from using her title or position to engage in political activity. The Hatch Act restriction concerning the use one’s official position only applies when used at the time of the political activity. For example, if you are writing an article endorsing a candidate you may not use your official title or position in the endorsement article. However, it does not prohibit a federal employee from using her official title or position in a nonpartisan article and subsequently writing a partisan article where the official title or position is not used.”
The Intercept posted an article on the Ides of March about the illegal activities of the Department of Education (DOE) regarding collective bargaining. I had received information on this two days earlier on Monday, through my own channels in the AFGE, but having 44 hours to work during the week, my writing on the subject had to wait until the weekend. In fact, this is going to be more expansive than just an explanation of what happened at the DOE, but rather this looks to be the beginning of a trend in the federal government.
However, we must first look at the present and what did happen at the DOE. While I do not know exactly what happened leading up to the institution of the non-negotiated contract, the Intercept article does clarify that things seemed to be going well in negotiations prior to the contract being presented by fiat and without a single union signature. Discussions began in October 2016 and had been progressing through December 2017, with no complications. Suddenly they were told there would be no further negotiation and a completely unrelated document was put forth as a “collective bargaining agreement” despite being unlawfully imposed by fiat and having no union involvement.
The Federal Service Labor-Management Relations Statute (FSLMRS) governs the labor relations between federal agencies and their employees. Why is it necessary for there to be statutes in place specifically to address federal employees? Because it is illegal for federal employees to go on strike per § 7116.b.7.A of the same statute. While Congress has shut down the government multiple times this year, Congress long ago made sure that federal employees could not do the same, suspending activities, because they are upset with their working conditions. A strike, of course, is the strongest tool a union has to counter management power and force them to be reasonable. In exchange for taking this power away from federal employees, management is constrained in a few ways. First among this is the duty to bargain in good faith.
In equal measure, it is illegal (an unfair labor practice) for an agency “to refuse to consult or negotiate in good faith with a labor organization as required by this chapter;” per § 7116.a.5. The following subsection, § 7117, covers in detail the duty to bargain in good faith, to which the Department of Education woefully failed to do. In cases of an impasse, where the two sides cannot come to an agreement (of which there was no indication thereof in this case), § 7119 covers specifically what is to happen in that case.
The Federal Mediation and Conciliation Service shall provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses. The Service shall determine under what circumstances and in what matter it shall provide services and assistance.
The Service is not an optional step in this process – if you are not intending to continue bargaining, you must ask for the Service to make a ruling; if they turn you down, you must continue bargaining. The Service is required to be a neutral party which rules on issues when one or both of the parties feel they cannot come to an agreement, at no point can either side unilaterally put forth a contract and call it binding, even though that seems to be exactly what the DOE’s management chose to do, under the direction of Betsy DeVos. However, the DOE went beyond this and called the contract the “Collective Bargaining Agreement” despite not being the product of collective bargaining, slapped the AFGE’s logo on it, and essentially committed libel in the process, defaming the AFGE by stating that they agreed to this contract which would make them an amazingly inept union.
In fact, the Federal Labor Relations Authority gives a succinct, but detailed accounting of the steps which must be taken when there is an impasse.
To my surprise, I could not find a copy of the old agreement from 2013 online despite the union not accepting the new agreement. The Council does not appear to have its own website, which seems to be the cause of this issue. However, the fiat contract is readily available and I am independently hosting it here.
While I cannot, at this time, comment specifically on what rights were lost but in a few isolated cases, the fiat contract yells some of the losses because they are so incredibly absurd that there is no rational reason to believe they were not in the previous contract. Right in the beginning is a red flag in Article 1, Section 1.01.B:
All labor matters, including but not limited to grievances, requests/demands to bargain, change notices, formal discussion notices, other union notices, etc., will only be addressed at the proper National level of recognition with the Council President. The Council President may appoint a single designee to receive/designate union representatives for these matters, however at no time will this obligate the Employer to provide multiple notices to any other entity except at the level of recognition with either the Council President or his/her designee.
This requires all union activities to be routed through the Council’s President or one other person, and they must then name the union representatives involved in the matter. While this seems almost reasonable at first, it is an attempt to overburden the Council President with needless bureaucracy in hopes to deter actions from being taken initially or having them fall through the cracks, especially when taken in conjunction with other provisions eliminating official time. In normal union actions, they are filed at the corresponding level, not the national level. I am the union representative for my office, so if I am taking action in an official capacity about something that is an issue at the local level, such as management violating the contract (a grievance) or the need to bargain a change that affects our working conditions inside the office, I file the grievance with the regional commissioner who invariably sends it down to the Area Director to make a decision. There is no confusion as to who the proper union representative is in the matter, and the only reason it goes up to the regional commissioner at all is so they can keep tabs on what is happening in the individual areas. Individual employees may also file grievances about violations that affect them personally, filing it with their direct supervisor, and they write in who their union representation is directly on the grievance.
We will come back to this when we hit the other issue that makes this even more horrifying.
Article 2, Section 2.02 states:
This Agreement shall remain in effect for seven (7) years from the effective date shown on the cover of the Agreement.
Given how horrible this agreement is, it would be shocking to see any union to allow it to be in effect for very long if they for some reason agreed to it. They certainly wouldn’t agree to a seven year term, which is longer than the previous agreement was.
Article 2, Section 2.04 includes an abysmally short negotiation window for future contracts:
If agreement is not reached by the end of the four weeks of bargaining, the parties will jointly request mediation within three (3) workdays of the conclusion of the last bargaining session.
Earlier it was clarified that there would be a one week break between two week negotiation sessions, so this gives a total of five weeks to hammer out a contract before mediation is called in – the same mediation that the DOE refused to use before issuing this contract. This current negotiation process took 15 months before the DOE just scrapped it illegally.
Article 3, Section 3.02.B states:
The Parties agree, as expressed in Article 2 (Force And Effect of Agreement, Duration of Agreement, and Negotiation of Subsequent Agreements), that the terms of this Agreement shall remain unchanged during its entire term except as provided by Article 2, or as may be required by law.
This means that the union is giving up all rights to bargain on the contract midterm unless law requires something be bargained. If you review Article 2, it does not provide any time that the agreement can be altered midterm, so that is just a straggling, misleading statement, possibly indicating that the DOE originally did have something and chose to remove it later without reviewing what they had.
Yet, Article 3, Section 3.02.C is even worse:
Mid-term agreements negotiated under the terms of this Agreement, must undergo Agency Head Review (AHR) requirements of 5 U.S.C. 7114(c). Mid-Term agreements reached under this Article, must be provided to the AHR authority within five (5) calendar days of signature for AHR, otherwise the review timeframe will commence once the signed copy is received by the AHR authority.
This refers to the FSLMRS and reads:
The Parties agree that beyond the reasonable official time required under 5 U.S.C. 7131(a) and (c), no additional official time is reasonable, necessary, and in the public interest; therefore the Parties agree that no official time shall be granted under 5 U.S.C. 7131(d).
A bank of 4,927 hours of leave without pay per fiscal year will be made available to the AFGE, Council 252, for representational duties under Section 5.08 that fall under 5 U.S.C. 7131(d). The bank calendar year will begin as of the effective date of this Agreement, and any bank hours not used by the end of the calendar year will be lost. The bank will be distributed between the National Council 252 and its affiliated internal Locals. The Council President will be responsible for distribution and allocation of bank hours between the National Council and the internal Locals.
1. Meeting with employees to discuss alleged grievances, and investigation of grievances (LWPUAD);
2. Preparing for and attending grievance conferences LWPUAD), formal discussions (LWPUAG), other meetings with Management (LWPUAG), and formal appeals or Arbitration hearings (LWPUAD);
3. Preparing and presenting replies to proposed disciplinary and adverse actions, unacceptable performance actions, denials of within-grade increases and statutory appeals (LWPUAD);
4. Preparing for and attending labor-management meetings (LWPUAG);
5. Participating in alternative dispute resolution procedures when representing a BUE under the negotiated grievance procedure contained in this Agreement (LWPUAD);
6. Attending mid-term negotiations and impasse proceedings with the Employer in accordance with the provisions of this Agreement (LRM);
7. Preparation time for mid-term negotiations and impasse proceedings (must be reasonably requested by the Union and approved by the Agency (LWPUAM);
8. Up to four hours for preparing reports required to be submitted by the Union to the Department of Labor (LWPUAG);
9. Generally, up to four hours preparation time will be allowed, to review documents in connection with an activity specified in this Section, with the understanding that the number of hours will vary depending on the issue (official time or LWPUA category for preparation should reflect the same category as for activity giving rise to its use under this section);
10. Travel time where necessary to conduct an activity specified in this Section will be permitted while on LWPUA where the travel occurs while the employee is otherwise in a duty status and travel is solely and directly for covered official representational purposes (LWPUAG);
11. Federal Labor Relations Proceedings under 5 U.S.C. 7131 (c) where official time is ordered by the FLRA (LRD).
In the interest of effective and efficient government as stewards of the American tax payer, abuse of any official time and LWPUA hours used for union representational matters, to include failure to timely and accurately report the time used, will not be tolerated and may result in administrative action against the union officer or representative at the Employer’s discretion and will be procedurally addressed as follows:1. First offense = The Council President is notified and the Union officer/steward receives a warning;
2. Second offense = The Council President is notified and the Union officer/steward is prohibited from using official time and LWPUA hours for representational activities for thirty (30) days; and
3. Third offense = The Council President is notified and the Union officer/steward is prohibited from using official time and LWPUA hours for representational activities for the remainder of the duration of the CBA.
“All past practices and and previous contract articles are terminated. Subject matters in the previous contract and in previous MOUs will be administered by Agency rules. Any changes in Agency rules regarding previous articles and MOUs are non-negotiable.”
This is eerily familiar to a notice from the management of Social Security on December 7, 2017, which is surely what he wanted to convey. The notice is atypical and states that the Agency intends to renegotiate the contract from scratch, and previous MOUs are all being abandoned. Council 220 responded with a grievance asking that they either rescind or properly give notice at the applicable levels for the MOUs and renegotiate as required. The notice also stated an intention to eliminate certain employee rights by fiat in the interim.
This appears to be a foreshadowing to what happened at DOE at an agency with no head – the last Commisioner was Michael Astrue appointed by George W Bush, extended by Obama, had an acting commissioner illegally for several years as Carolyn Colvin, then succeeded by Nancy Berryhill who was recently ruled to be acting commissioner for an illegal amount of time – not one who is headed by a Trump appointee. This suggests that this may be happening at agencies across the government and that they may very well end with unlawful contracts being placed upon federal employees at every agency and having them be called “collective bargaining agreements.” Our entire civil service system could collapse as rules are applied arbitrarily rather than according to law.
Given the massive impact that this represents, mainstream media needs to start paying a lot more attention to this event rather than treating it as an event that only affected 3,912 individuals. It appears to be the beginning of what could be a major event in American history, not a one off event.
President Trump has made a lot of noise about eliminating public sector unions in general, and there is likely some guidance that can be obtained through the Freedom of Information Act telling federal agencies to act in precisely this manner.
This article is too long to cover the general assault on federal employees and maintain attention, so this will have to be covered in a separate article. However, I will say that the assault does cross party lines and is not limited to any particular party, candidate, or partisan political group. As such, this article simply is discussing a current problem and should not be construed as a call for voting for or against any candidate or political party as this is by no means limited to any candidate and has a sentiment found in both major political parties.
Featured Image via The Progressive. Fair Use.
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