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August 10, 2005


Part 2
“Working for America Act of 2005”
won’t work for a non-partisan, professional civil service

“Sit and read. Prepare yourself for the coming conflicts.”
Mary Harris “Mother” Jones (1837-1930)

     This is part 2 in our review of the draft “Working for America Act of 2005,” available from the HUD website. Right now, we’re asking you to sit and read, to better understand the impact of the Administration’s proposal. Soon we will be asking you to take action, and we will provide sample letters, petitions, and more. (In the meantime, Stephen Barr at the Washington Post is seeking comments on the draft Act from regular employees like you.
(read article at: http://www.washingtonpost.com/wp-dyn/content/article/2005/08/08/AR2005080801314.html)

     The draft Act covers a lot and we’re trying to present it in manageable portions. At this time we’re planning the following ENews Alerts about the Act:

     Impact on Basic Pay (distributed August 4) (http://afgecouncil222.com/enews.html)
     Revisions to the Classification system (below)
     Changes to Performance Management systems (scheduled for next week)
     Modifications to the right to representation and the right to bargain

Revisions to the Classification (and Promotion) System

I. Summary—Things to know

     * The current system gives management wide discretion to classify employees, and provides employees with little or no recourse to achieve equity.

     * The proposed system gives management wide discretion to classify employees, and provides employees with less recourse to achieve equity. Draft Act at 5 U.S.C. 5215.

     * The current system espouses “equal pay for work of equal value” but provides no enforcement mechanism. 5 U.S.C. 2301(b)(3).

     * The proposed system espouses “equal pay for work of equal value,” loads it with qualifiers, and still doesn’t have an enforcement mechanism. Draft Act at 5 U.S.C. 5201(d).

     * The current system allows the union to bargain over the procedures and arrangements that management will follow when exercising their rights.

     * The proposed system eliminates the right to bargain procedures or arrangements dealing with classification, pay or pay-for-performance, and nullifies any existing collective bargaining agreement. Draft Act at 5 U.S.C. 5206.

II. Nullifying the HUD/AFGE Contract

     Federal employees’ unions cannot bargain over the substance of many workplace issues—hiring, firing, assignments, classification, etc. These are known as “management’s rights” under 5 U.S.C. 7106. However, we can bargain the “procedures” and “arrangements” that management will follow when exercising their rights. Thus, for example, management has the right to promote employees through a career ladder process, and the union has the right to bargain the procedure that management will follow if they deny an employee his/her career ladder promotion. See the HUD/AFGE Agreement at 13.13.

     The draft Act eliminates our right to bargain procedures and arrangements over anything having to do with classification, and the pay and pay-for-performance systems. Draft Act at 5 U.S.C. 5206. Furthermore, any language in a current collective bargaining agreement (CBA) that conflicts with the Act will be nullified. That means an argument could be made to eliminate the following Articles and/or Sections of our CBA: (view the Contract in left shaded column on our resources page at: http://afgecouncil222.com/resources.html)

          Article 9, Position Classification
          Article 11, Incentive Awards Program
          Article 13, Section 13.13, Career Ladder Promotion
          Article 14, Section 14.05, Temporary Promotions
          Article 18, Overtime
          Article 21, Unacceptable Performance Actions
          Article 37, Performance Appraisal
          Article 42, Within-Grade Pay Increases
          Article 46, Pay Administration and Savings Bonds

Not to mention a host of protective paragraphs in Supplements intended to protect employees during one of HUD’s many (many!) reorganizations.

     When the Administration disempowers the union, they are by extension disempowering you.

III. Classification—the situation at HUD

     Grade parity, or the lack of parity, is one of the most frequently reported complaints to the union. Employees raise parity issues when there is no discernible difference between the work they do and the work done by a higher graded colleague. It has been a persistent problem, but it has gotten much worse in the last few years.

     Some history is in order. As late as 1993, the career ladder in the Offices of Housing, Public and Indian Housing, and Administration (with the exception of IT staff) in the field only went to a GS-11. Employees in FHEO and CPD, however, enjoyed career ladders to GS-12. During the “reinvention of government” in 1993 and 1994, we worked with management to standardize most career ladders in the field to GS-12. The Office of Housing also created the Senior Technician’s position at GS-13. We argued that all cylinders should create the Senior Technician’s position, but were unsuccessful. As we predicted, employees in those cylinders without the Senior Technician position felt cheated, and rushed to apply for Senior Technician jobs in other cylinders.

     Fast forward to 2000. By now, the other cylinders have decided that they need to respond in order to keep their best employees and recruit new ones. They’ve started to piece-meal create Senior Technician’s positions, unlike the Office of Housing, which created it’s Senior positions with clear differences in work and used the competitive merit staffing process to fill the positions. While initially the Office of Housing process was largely transparent, the other cylinders’ process was murky and often smelled of favoritism, especially when done by “accretion of duties.” Meanwhile, employee trust in the merit staffing process was headed south; OPM was investigating HUD for violations of the merit staffing process; EEO hearing officers were writing about a complete lack of standards in the merit staffing process; and employees everywhere were disdainful.

     There seems to be no trustworthy process. Even employees who deserve to be and are selected for these higher graded positions nonetheless come under suspicion. And the whole thing is compounded by the fact that many managers do not take (have?) the time to assign work that clearly distinguishes between GS-12 and GS-13. In many instances, employees feel that they do not receive “equal pay for equal work.”

IV. The draft Act doesn’t help employees resolve classification inequities.

     The current law severely restricts what recourse we have to resolve these inequities. We can’t file a grievance under our collective bargaining agreement over classification matters that don’t result in a loss of pay or grade. See 5 U.S.C. 7121(c)(5). The statute that provides for equal pay for work of equal value is “aspirational,” meaning that it does not include an enforcement mechanism; it sets a standard to which the government aspires, but for which it is not accountable. We can take classification appeals, but management doesn’t compare the employee’s work to any other employee’s work; management looks solely at the employee seeking the classification appeal. Thus equity is not a consideration. That assumes, of course, that they complete the appeal. We’ve seen appeals languish for months, only to have management agree that the employee is doing higher graded work and then take the work away (management has the right to either upgrade the employee or reassign the work so that s/he is no longer doing it).

     Nonetheless, our Locals and the Council are working hard to find successful strategies. There is a national grievance of the parties seeking “fair and equitable” treatment of employees in positions advertised at higher grade levels in 2002 (grievances page of our website at: http://afgecouncil222.com/grievances.html). Whenever management proposes a reorganization, we seek the creation of additional Senior Technician positions. See Supplements 35 and 59 (our contract supplements page: http://afgecouncil222.com/consupp.html). The issue is constantly raised with management at the national level. At the Local level there are EEO complaints, grievances to create accurate position descriptions, classification appeals, and even some efforts to find a way to enforce “equal pay for work of equal value.”

     Far from helping us resolve these inequities, the proposed law would reiterate and exacerbate the current law. Classification decisions made by OPM are “not subject to further review or appeal.” Draft Act at 5 U.S.C. 5215(c). The once simple concept of “equal pay for work of equal value” now includes references to “contributions to mission accomplishments,” “rates of pay paid by other agencies,” “mission requirements,” and “other appropriate factors.” Though it still doesn’t include an enforcement mechanism, it is so nuanced that even with a mechanism it would be unenforceable. But just in case any arbitrator or judge does try to enforce it, the Act goes on to state that “[t]he interpretation of this chapter and implementing regulations issued by [OPM] shall be accorded great deference.” Draft Act at 5 U.S.C. 5201(d) et seq.

     The final nail in the coffin is removing the unions’ right to bargain the procedures and arrangements that management will use when exercising their rights. Management will decide what will be done, how it will be done and whether it’s enforceable. Despite promises about management accountability, management will effectively be unaccountable.

Next week: Let’s see—so far we’ve gotten less pay and less rights. Guess what we’ll get in the proposed Performance Management system? Hint: there’s more “aspirational” language ahead. Tune in next week.

This Council 222 E:Alert (pt 2 of 4) was written by Carolyn Federoff, President, Council 222.
E:mail comments or suggestions to: AFGE COUNCIL 222/ADMIN/RIC/HUD@hud.gov or just hit reply