More than a month after the injunction lifted on the president’s three workforce executive orders, federal employee unions are looking for some legislative relief.
Implementation of the EOs has been a mixed bag and varies by agency. But several overarching themes and patterns have grown apparent, and some began to take shape even before the injunction on the workforce executive orders lifted last month.
And the Federal Labor Relations Authority, the agency the Trump administration has argued should handle unions’ disputes with the executive orders, still lacks a general counsel — and enforcement authority — to prosecute agencies for breaking labor law.
Now, Congress has taken notice.
“Many agencies have resorted to circumventing the collective bargaining process altogether by engaging in ‘surface’ bargaining — going through the bargaining process without meaningfully participating in negotiations — to reach the Federal Service Impasses Panel (FSIP), where the Trump-appointed panel has disproportionately ruled in favor of management,” Senate Homeland Security and Governmental Affairs Committee Ranking Member Gary Peters (D-Mich.) wrote in a Nov. 20 letter to congressional leaders.
Peters, along with 43 other Senate Democrats, are urging congressional leadership to include House-passed appropriations language in any final 2020 spending measure. The language was designed to prevent agencies from implementing unilateral bargaining proposals unions mutually and voluntarily haven’t agreed to.
Several agencies, including the Education Department and Environmental Protection Agency, have implemented management proposals their unions say they never negotiated or signed.
Several others, including the Department of Health and Human Services and Social Security Administration, have tried to bargain but quickly declared impasse.
The patterns aren’t lost on Congress, though some agencies have been more likely than others to push the envelope during negotiations, the American Federation of Government Employees said.
“Each agency has its own character and inclination to abide or not abide by the law, so some of them respected the injunction better than others,” David Cann, director of AFGE’s Office of Field Services and Education, said.
The National Treasury Employees Union, which is engaged in various stages of bargaining with several agencies, has also noted variety.
“All along, we’ve seen some agencies use the orders to justify bad faith bargaining and dramatic rollbacks in employee rights and benefits,” National Treasury Employees Union National President Tony Reardon said in a statement to Federal News Network. “In others, bargaining has been less contentious. It is important to point out that the executive orders, and [the Office of Personnel Management’s] guidance to implement them at the bargaining table, do not affect contracts already in place and NTEU has seen no movement to act outside of existing contracts. At IRS and [Customs and Border Protection], for example, collective bargaining agreements signed before the executive orders are largely unaffected.”
Some agencies, Cann said, were clearly waiting for OPM and White House instructions after the injunction had been lifted before attempting to implement and enforce the provisions of the president’s workforce EOs.
But both AFGE and the National Federation of Federal Employees said they’ve since seen some agencies attempt to enforce the provisions of the executive orders — even though their existing collective bargaining agreements are either still in place or the agency hasn’t reopened them.
Democrats, meanwhile, appear determined to secure some legislative relief from the president’s workforce executive orders.
“These actions are posed to cause long-term damage to the foundations of our civil service,” the senators wrote. “With almost a third of federal workers eligible to retire in the next five years, it is more important than ever that the federal government focus on recruiting and retaining the best employees. Robust labor unions are a hallmark of competitive workplaces; they lead the fight for better benefits, protections and working conditions.”
Here’s a roundup of some of the larger, agency-union collective bargaining negotiations and where they stand to-date.
HHS and NTEU: the negotiation to watch
Federal employee unions are all watching the ongoing saga with HHS and the NTEU.
An independent arbitrator in September said the department had bargained in “bad faith” with the union and instructed both parties to resume negotiations.
Perhaps most notably, the arbitrator said HHS purposefully and prematurely ended negotiations with NTEU before discussing the majority of the bargaining proposals. HHS declared an impasse back in August.
The panel ruled on more than a dozen collective bargaining proposals, largely upholding HHS’ suggested changes to its existing agreement with the union. That decision set the stage for HHS to begin implementing new policies on telework, leave and official time, which the union said it technically never agreed to.
NTEU said HHS has filed exceptions, essentially an appeal, to the arbitrator’s bad-faith ruling.
Meanwhile, a mediator is helping both parties, which are still bargaining on a small number of articles that weren’t part of the impasses panel’s decision.
From the union’s perspective, the panel’s April decision is invalid with the arbitrator’s recent “bad faith” ruling.
For now, employee unions have their eyes on HHS. Those negotiations have been the model for other agencies, Cann said, and they may hint at what’s next for other unions now in similar situations.
AFGE, for example, is in the middle of negotiations with the Departments of Housing and Urban Development and Veterans Affairs, two of the union’s larger bargaining units. Cann said the HHS-NTEU negotiations will likely serve as a precedent.
“It’s like taking a coach who had famously lost a sports event and asking him to come up with a playbook for everyone else,” he said.
Bad-faith bargaining at EPA?
The Environmental Protection Agency and AFGE have been locked in a similar scenario.
EPA in July imposed a series of new bargaining proposals, which AFGE didn’t agreed to.
FLRA in October said EPA also bargained in bad faith. The reasons it cited are strikingly familiar to the HHS-NTEU dispute.
In its proposed settlement agreement, FLRA suggested EPA rescind the contract it initially imposed on the union and agree to return to the bargaining table with AFGE. FLRA, however, can’t enforce its ruling without a general counsel.
A group of 228 House members and 41 Senate Democrats have written separately to EPA Administrator Andrew Wheeler, urging him to return to bargaining table.
“We understand that you have undertaken efforts to negotiate with union representatives; however more must be done,” House members wrote in a Nov. 19 letter to Wheeler. “The negotiations seems to have broken down when EPA adopted proposals that are similar to certain provisions of [the executive orders].”
NTEU is also bargaining with EPA. The impasses panel has stepped in to sort out disagreements over ground rules, the union said.
Tensions rising with VA
The Department of Veterans Affairs has reopened its collective bargaining agreements with AFGE and other employee unions, and it’s been proactive in announcing its plans to implement workforce executive orders.
Citing the EOs, VA last week gave unions until Jan. 31 to either pay rent or leave currently-occupied government space. The department also said it would continue to cut back on official time after it eliminated official time for Title 38 medical professionals last fall. AFGE has said this move has seriously challenged the union’s ability to respond to employee claims and concerns.
VA made a series of proposals to AFGE in May, which, if implemented, would end labor-management working groups for both parties, change current telework policies and eliminate 28 articles of AFGE’s existing collective bargaining agreement.
Negotiations between VA and AFGE are scheduled to end in mid-December.
The National Federation of Federal Employees said it was close to finalizing a new agreement with VA.
And VA Secretary Robert Wilkie on Thursday wrote Everett Kelley, AFGE’s national secretary-treasurer and acting president, to express concern over the allegations of sexual harassment against the union’s national president, J. David Cox.
“I am writing to get your personal and public assurance that you will protect VA employees who are members of your union from any form of harassment by union officials, while thoroughly investigating all allegations of improper behavior,” Wilkie wrote. “VA spends considerable time and resources making sure its working environment is fair, inclusive and psychologically safe for all, and it is important to us that the valued members of our team who complain about sexual harassment are not frustrated, neglected or ignored by AFGE leadership.”
Cox has taken a leave of absence while AFGE conducts an external investigation.
Scattered outcomes at SSA, other agencies
Like the EPA, FLRA also granted the Association of Administrative Law Judges a favorable ruling after an impasse was declared this summer with the Social Security Administration.
At other parts of SSA, bargaining outcomes remains mixed.
More than 2,000 NTEU bargaining unit employees at SSA’s Office of Hearings Operations recently scored a win with the impasses panel, which ruled an existing telework program should remain relatively unchanged. Bargaining on the NTEU-SSA contract is finished now, the union said.
And AFGE Council 220, which represents SSA field and regional office employees, has called on Congress to review the bargaining agreement it signed with the agency in late September. AFGE contends it was “forced” to accept the contract or grapple with more harmful terms under the president’s workforce executive orders.
Other agencies are at various stages of the collective bargaining process with their unions.
NTEU said ground rules for negotiations between the union and the Federal Communications Commission are pending before the impasses panel. The union filed an unfair labor practice charge with the FCC, and the matter is going to arbitration.
NTEU also filed a national grievance against the Treasury Department’s Office of Comptroller of the Currency. The grievance alleges bad-faith bargaining, and the matter will go to arbitration, the union said.