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 agencyto 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:

(c)(1)     An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency.

(2)     The head of the agency shall approve the agreement within 30 days from the date the agreement is executed if the agreement is in accordance with the provisions of this chapter and any other applicable law, rule, or regulation (unless the agency has granted an exception to the provision).

(3)     If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation.

(4)     A local agreement subject to a national or other controlling agreement at a higher level shall be approved under the procedures of the controlling agreement or, if none, under regulations prescribed by the agency

Article 3, Section 3.01.A tries to do more of this same extralegal rewriting of laws:
The Agency will notify the Union of changes that are more than de minimis in conditions of employment that affect the bargaining unit and provide an opportunity for the union to comment. The Agency will consider the Union’s input prior to implementing the changes(s). This will completely satisfy the Union’s right to bargain over any substantive matter(s) and the Union’s bargaining rights under 5 U.S.C. 7106(b)(2) and (3) concerning procedures and appropriate arrangements for employees adversely affected by the exercise of a management right during the term of this Agreement.
Section 4.04 goes further and uses language that is incredibly troubling:
Regardless of jurisdictional laws, absent written consent from all Parties (with the exception of court reporting transcripts in the conduct of official business), the recording (audio, visual, or any other form) while conducting Union business in the capacity of an exclusive representative (on or off premises) is prohibited.
This section explicitly states that it is going to override the law: federal, state, or local.  It also creates such a broad prohibition on recording (audio and visual are normal) as to prohibit the taking of notes without permission.  After all, they are a form of written record.
Article 5 is where we get into the elimination of official time that is causing the most uproar.  Official time is required by law in § 7131 of the FSMLRS: subsection a requires it for contract negotiations, subsection b prohibits it for internal union business such as member recruitment or internal elections, subsection c gives the sole discretion on whether it is granted when practicing before the FLRA, and subsection d states that further use will be decided by mutual agreement between both parties.  Mind you that if the two were to disagree, it would go to mediation and then to impasse proceedings, which is why – though management would always prefer there to be no other use of official time, there always is a substantial use otherwise because there is a strong need to use official time beyond this and mediators and the Service see valid reasons for there to be a significant use other than just in negotiations.
These reasons are things such as that a contract is meaningless if it cannot be enforced – and union officials help employees have it enforced.  There is also assistance – though generally only to dues paying members (federal employee unions only have to represent all employees for the contract terms) – with discrimination in Equal Employment Opportunity complaints, in enforcing safety laws both for the employees and the public, and enforcing labor laws.  There is also a need for some time for training – because these are complex documents with complex laws and management takes several days training on union issues when they are first promoted as well as throughout the year – union reps need that same level of training.
Management abuses their power regularly.  It may be small things such as not notifying the Union of changes in policy that they are supposed to be able to bargain on or consult on, or it may be something much more egregious.  I have spoken to a black employee who had a white manager at another office tell them they couldn’t have the time off to vote because “you people don’t vote anyway.”  I have heard from a manager about how SSA employees in the Atlanta region were regularly told they had to work overtime on Saturdays without compensation.  I have heard from another union representative, from the Atlanta region,  about how she interviewed a woman applying for disability benefits for numerous bloodborne diseases including HIV who pulled out a bloody tampon that was being currently used and flung it at her; her manager told her she was overreacting when she got upset.
Grievances go through complaints with management (though they can go the other way if the union violates the contract – there is a relatively miniscule amount going that way) and then it generally costs money to move it on to arbitration.  I’ve filed a grievance where I had management well against the ropes but it went nowhere because it wasn’t worth the $1000 we would have to spend to take it to arbitration.  It happens to be a different story at my agency when paid time is involved and management plays by completely different rules at that point – quickly resolving things knowing that it will involve attorneys where the loser pays for it all – and they know they will certainly lose.
Article 5 introduces the idea of Leave Without Pay for Union Activities (LWPUA) which is an abomination purely designed to skirt the law.  This consists of all the time that is supposed to be covered as official time under § 7131.d and creates a disincentive for union officials to act in any manner at all.  Let us go back to the council president, who used to be working on 100% official time.  They are now taken to 50% union time and they must handle each and every grievance that comes from anywhere in the agency.  They must now take up to 50% of their time as LWPUA, unpaid, to handle all of this.  Who would possibly want that job if they had to take a 50% pay cut and had to struggle to survive?  Would this create more turnover creating a hole of inexperience?  And if the President and his one designated official use up all of their LWPUA that the agency allows, union activities basically stop for the year as no grievances can be file and no requests to bargain can be made.
Article 5, section 5.02 limits the official time to just those activities covered under § 7131 a and b.  Section 5.03 simply restates the prohibitions already in law, and Section 5.05 clarifies that no official time exists under § 7131 d:
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).
Article 5, section 5.06 creates the bank for time used for union representation, all LWPUA:
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.
To put this in perspective, there are 3,912 bargaining unit employees in the DOE.  This grants a total of 1.26 hours of available time per employee.  A full time employee works approximately 2080 hours in a year, so if the Council President and the one designated employee uses up their 50% LWPUA, that only leaves 2,847 hours, or .73 hours per employee.  Assuming their representatives do no training whatsoever, this is not enough to write up a proper grievance for each employee, to do fact finding for the events, to represent the employees at arbitration.  Likely, this would force the union to limit their activities to only protecting employees about to be fired and nothing more.  This gives management every incentive to disregard any and all rules to quickly deplete the union of their available hours and then abuse their power afterward.
Article 5, Section 5.08 actually lists out all of the various things these scarce hours are supposed to be used for:
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).
However, all of this comes down to some truly nasty union busting activities.  Flipping back to Article 5, section 5.01, subsection D:
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.
This is an issue that, legally, the Agency is required to file a grievance with the Union on.  This is a blatantly illegal use, which will likely come down to supervisors saying the union official was off by a minute or two on their recorded times, then after two offenses the union official cannot act for 30 days (preventing grievances in that period, including a grievable action done on the first day of the suspension, and the elimination of the union official on the third time a supervisor simply says the representative was off by a minute.  Everything simply goes through management’s discretion.
Another example: the union official is told by a member of management that a formal meeting will be held and will last approximately for 15 minutes.  The representative requests the 15 minutes – it takes 20 minutes because management timed it assuming that the union rep wouldn’t ask a single question to clarify things for the bargaining unit.  The union rep is then charged with an offense.  Seem ridiculous?  Well, federal managers are apt to make such an absurd claim, especially when there will be no repercussions.
However, there may be very little to grieve at all.  Article 7, section 7.03.B basically takes everything that would be grievable and make them not grievable at all.  You cannot grieve proposed actions, violations of the Fair Labor Standards Act, and even in point 13, sneakily hidden within, “actions that can be adjudicated in an employer alternate venue.”  Beyond this, it excludes “Disputes regarding whether these exclusions apply to a particular grievance.”
This means that the agency can create a venue for handling anything, which the union cannot grieve, and then they cannot grieve anything handled by that venue.  If the employer creates a kangaroo court-like venue for handling separation requests for non-probationary employees or not done through Reduction In Force (RIF) – both already excluded by the one-sided contract but not by law – the Union cannot stop it and then cannot protect employees from the decisions of that kangaroo court.
The totality of this contract is made up of a large amount of restating of laws that limit the union, references to taxpayers which is not at all standard, and a bare minimum of information about how things work.  It includes no rights for the bargaining unit, no discussion of how issues involving conditions of employment are to be handled, etc.  For example, the current contract between AFGE Council 220 and SSA includes sections on Health and Safety, Flextime (as provided by law under the The Federal Employees Flexible and Compressed Work Schedules Act of 1982), Parking and Transportation, how leave is approved and used, Merit Promotion, Telework, and many other issues.
Rather than representing a deal bargained between a union and an agency, this appears to be an agreement bargained between a management wet dream of what they wish an agreement said and the law, with the law giving concessions to this wet dream.  It is union busting, illegal both in how it came about and in its text, and in clear contempt of the law.  Legally, the prior contract is in force until there is a proper replacement and AFGE Council 252 should act as such.
The Effects Can Be Far Reaching
Having such a gutted union does not only affect the workers at the DOE; far from it, this could have far reaching effects on the American people and how their education is handled.  One of the key advances to come from the Gilded Age was the creation of the civil service which swept away the excesses of the previous spoils system where the President placed all his friends and supporters in government who would do his bidding.  The civil service meant that you had experienced and impartial civil servants in place who impartially handled matters before their agency.  When the question arises whether an action should be taken or not taken, the civil servant asks what the law says should happen while previous bureaucrats under the spoils system asked what the President wanted.
The crippling of AFGE Council 252 creates an environment which gives free reign for employees to stop working impartially.  Rather than asking what they are legally supposed to do, they start asking what action will keep my job, and without a strong union to keep them from being suspended, fired, or demoted for partial reasons, perhaps because they ran out of official hours or their officials have to choose between representing them properly or paying their bills, that becomes a question of what Betsy DeVos wants.  She wants what President Trump wants.  Rather than impartially adjudicating issues before them, rather than following what Congress or courts say they should, they act like their predecessors under the spoils system and do what the President wants, legal or not, fearing for their jobs.
It Might Not Be Just the DOE

“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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