August 24, 2005
“Working for America Act of 2005”
won’t work for a non-partisan, professional civil service
“If there is no struggle, there is no progress. . . . Power concedes nothing without demand.”
Frederick Douglas (c. 1817-1895)
This is part 4 in our review of the draft “Working for America Act of 2005,” available from the HUD website. This is probably the hardest part to write, because it mostly focuses on our rights as employees represented by a union. Because fewer and fewer workers have the opportunity to be in unions, people have less and less understanding of what exactly “collective bargaining” can mean. Additionally, because we are federal employees, we have even less rights than private sector union members.
Although many of us are not familiar with our rights as union members, it's important that we understand what the draft Act will do to our already limited rights. We hope that you'll take some time to think about this part of our series.
The draft Act covers a lot and we’re trying to present it in manageable portions. This is the last part in our series, which has included:
Impact on Basic Pay (distributed August 4)
Revisions to the Classification system (distributed August 10)
Changes to Performance Management systems (distributed August 17)
Modifications to the right to representation and the right to bargain (below)
Changes to the right to representation
Under the Back Pay Act, whenever an employee wins an arbitration or an appeal before the Merit System Protection Board or similar entity that involves back pay, the employee is entitled to collect attorney’s fees (if s/he hired an attorney). The employee doesn’t have to win completely to still collect back pay and attorney’s fees. For example, if an employee was suspended for 30 days, and the arbitrator found that the employee should have been suspended for only 7 days, the employee can collect back pay and attorney’s fees.
This right helps level the playing field in cases between an employee and the agency. After all, why should only management be represented by an attorney? The Council has been securing legal services in many more cases recently because of the possibility of collecting legal fees if we win.
The draft Act at Section 403 would limit the possibility of attorney fees in disciplinary and performance based actions. The draft Act provides that the agency’s decision (to suspend, demote, dismiss, etc.) can only be overturned if it is “totally unwarranted.” This standard will make it more difficult for arbitrators to mitigate or change the penalty. Without a change to the penalty involving back pay, there can be no award of attorney’s fees. Given the high cost of attorneys, management increases the likelihood that they’ll have an advantage in the arbitration or appeal.
Arbitrators and the MSPB should continue to have the authority to mitigate and change management’s proposed actions.
Changes to the right to bargain
First, it’s important to know that the proposed changes in union rights do not address any of the issues the Administration has presented as needing a fix. None of the “FAQs” present issues associated with union rights. The Guiding Principles don’t include anything about union rights. It’s a bit like a Trojan Horse—something hidden in a package that presents itself as a “pay-for-performance” bill.
The proposed changes to the right to bargain include (more fully explained below):
- a prohibition against bargaining procedures or arrangements in connection with the classification system, pay system, or the pay-for-performance system (draft Act at 5 USC 5206);
- in almost all cases, a prohibition against “status quo ante” relief where the agency is found to have failed to bargain in good faith or to participate in impasse proceedings (draft Act at Section 401, page 105);
- expanding the definition of “emergency” to include any situation that potentially involves an “adverse effect on agency resources” (draft Act at Section 401, page 103);
- limiting bargaining only to matters where the change in working conditions “is foreseeable, substantial, and significant in terms of impact and duration” (draft Act at Section 401, page 108);
1. Prohibition against bargaining procedures or arrangements in connection with the classification system, pay system, or the pay-for-performance system (draft Act at 5 USC 5206).
This was fully discussed in Part 2 of our review of the Working for America Act of 2005. Please go to http://afgecouncil222.com/E/aug05ealertpt2.html for more information.
2. In almost all cases, a prohibition against “status quo ante” relief where the agency is found to have failed to bargain in good faith or to participate in impasse proceedings (draft Act at Section 401, page 105).
“Status quo ante” relief occurs when management implements a change in working conditions and is subsequently found to have violated the law, either by failing to bargain in good faith or by failing to participate in impasse proceedings. For example, management plans a space change and implements it without bargaining with the union, or bargains to impasse and then fails to participate in the impasse proceedings. Under current law, management knows that it implements that space change at its peril. If the union is upheld, management will have to undo the space change, or return to “status quo ante,” until the negotiations and impasse proceedings are completed.
The draft Act virtually eliminates the possibility of “status quo ante” relief. It prohibits “status quo ante” relief whenever such remedy would adversely impact the agency’s budget. Almost every change has a cost associated with it, and undoing the change will have similar costs.
"Status quo ante” is a big stick in a system where we have virtually no sticks. We can’t strike or do any job actions; we can’t get monetary damages; we can’t get any sort of punishment for managers who flout the law; all we can get is a return to the way things were before management violated the law—before they acted in bad faith.
If “status quo ante” relief is eliminated, there will be little holding management back from implementing changes without bargaining. Management who seek to act in good faith will follow the law. But the penalty of “status quo ante” only applies to those not acting in good faith. By definition, they are already predisposed to violate the law.
The law should not be changed to limit “status quo ante” relief.
3. Expanding the definition of “emergency” to include any situation that potentially involves an “adverse effect on agency resources” (draft Act at Section 401, page 103).
As the law stands now, we have no right to bargain the substance of a management proposal that involves “actions . . . necessary to carry out the agency mission during emergencies.” 5 USC 7106(a)(2)(D). “Emergencies” have been defined through case law. The Administration seeks to offer an expanded definition in the draft Act. Emergency would now include any “potential” situation involving “an adverse effect on agency resources” or “changed mission requirements imposed on the agency by external authorities,” etc.
We think this definition would encompass many situations that were not—in the view of regular users of the English language—emergencies. Emergency normally means something that requires immediate attention. Would the proposed move of CDBG to the Department of Commerce be a “potential” situation involving a “changed mission requirement,” even though the change needs Congressional approval which has not yet been given? What about a situation where an office lease will expire in a year, an office needs to move, and the move will have an adverse effect on agency resources? How would the new definition of emergency change management’s duty to bargain the change, including the procedures and arrangements that will be made for employees affected by the change?
The meaning of “emergency” should not be diluted to include events that may occur later, but for which we have sufficient time to plan and bargain our response.
4. Limiting bargaining only to matters where the change in working conditions “is foreseeable, substantial, and significant in terms of impact and duration” (draft Act at Section 401, page 108).
This is another instance where the Administration is trying to put into law a standard different that the current law. Current law requires that a proposed management action have more than de minimus impact in order to trigger the right to bargain. Translated, de minimus means “more than a minimum” impact. The Administration seeks to increase the impact to “foreseeable, substantial, and significant in terms of impact and duration.”
The case law is fairly well settled on what de minimus means. Changing to this new, higher standard will ultimately result in more litigation; and more litigation always benefits management (they have all the lawyers and money). So they win two ways—a higher standard and more litigation.
The de minimus standard for triggering the duty to bargain should not be changed.
Politicization of the Federal Labor Relations Authority (FLRA)
The FLRA has jurisdiction to resolve disputes between the union and management in the federal sector. (Well—almost. Recent changes for DHS and DoD will move their labor disputes to an internal, management controlled board.) The draft Act proposes some radical changes to the governance of the FLRA. These changes result in a politicization of the FLRA.
One of the hallmarks of the law is “precedent,” or a respect for the decisions that were made by earlier judges. Precedent is important in our lives because it allows us to plan for the future based upon decisions that were made in the past about similar situations. For example, those of us who do a lot of bargaining have a good idea of which proposed changes are more than de minimus and will trigger the duty to bargain. We plan based upon FLRA precedent.
FLRA precedent is maintained through a three member board. By law, only two of the members can be from the same political party. Additionally, the members serve overlapping five year terms. 5 USC 7104. This has the effect of maintaining stability in the law, and decreases the politicization of Authority decisions.
The draft Act would remove substantial authority from the three member board, and give it entirely to the Chairman. (See Section 401, pages 104-105) The President designates the Chairman. This proposal could easily result in changes to FLRA precedent with each new Chairman. It could also result in the politicization of the FLRA.
You can take action.
Despite recent court rulings enjoining the Administration from implementing changes in DHS, the Office of Management and Budget is continuing to press the Working for America Act of 2005. They are arguing that the DHS ruling “largely deals with collective bargaining issues, which the Working for America Act does not impact to any degree.” Our review of the draft Act demonstrates that this is a Trojan Horse—the draft Act proposes substantial changes to collective bargaining rights and hides them inside a “pay-for-performance” bill.
Because we are federal employees, we already have limited union rights. We need to take action to preserve our already limited rights.
This is a draft Act, and therefore we can use the agency electronic mail system to encourage you to take action. If the Administration introduces this into Congress, we can no longer use the agency’s electronic mail system to encourage action. We’re assuming that some version of this draft Act will be introduced into Congress. So, the first thing we need from you is:
1. your private email address and home zip code (so we can match you to your Congressional District) http://afgecouncil222.com/E/wkg4americahmail.html;
Once you’ve done that,
2. click on this link to get sample letters and petitions: http://afgecouncil222.com/enews.html;
3. talk with your co-workers about the importance of responding to the draft Act by sending their private email address and zip code to us, and by sending a letter to OPM with copies to their Congressional delegation. Need to know who your Congressional Representatives are?
click here: http://www.house.gov/writerep/;
4. talk with your Local President about having a letter writing party, help organize it, and get your co-workers to attend;
5. plan to visit your Senator’s and Congressperson’s office. Click here to get sample talking points (http://afgecouncil222.com/enews.html); and
6. send us your ideas for success!
This Council 222 E:Alert (part 4 of 4) was written by Carolyn Federoff, President, Council 222.
E:Mail comments or suggestions to: AFGE_Council_222/ADMIN/RIC/HUD or just hit reply