CONTRACT UPDATE- DECEMBER 26, 2018

BACKGROUND

Over the last few months, AFGE has been fighting an uphill battle with the Administration and the Agency. In July, the Agency unilaterally implemented the terms of three Executive Orders designed to shut down the Union and eliminate important workplace protections for all employees. The Agency unilaterally changed our ground rules for contract bargaining, intended to undermine our ability to negotiate on level ground by reducing bargaining sessions and refusing to cover certain negotiation costs. The Union lost significant preparation time and had to enter negotiations with a smaller team. Further, SSA’s initial contract proposals mirrored the terms of the Executive Orders, which made its anti-employee and anti-union position clear.

AFGE sued the Administration over the Executive Orders and won. On August 25, 2018, a U.S. district court judge invalidated much of the Executive Orders as unlawful. SSA rescinded the Executive Order terms it had already implemented and reverted back to the negotiate ground rules, though damage was done. The Union returned to the bargaining table demanding that SSA revise its contract proposals to reflect the court decision. When SSA finally provided revised proposals in September 2018, SSA maintained its most egregious proposals to dramatically slash representational time, eliminate space for representational work, and eliminate employee rights to challenge unfair appraisals, unfair award decisions, and unfair removals through the grievance and arbitration procedure. In response, the Union filed a grievance over the Agency’s continued adherence to invalidated provisions of the Executive Orders. In addition, the Agency proposed to strip negotiated telework rights and leave decisions on telework policy entirely to the discretion of management. Despite the severe anti-employee and anti-union environment, the Union nonetheless went to the bargaining table to secure employee rights and protections.

In October and November, the Union and the Agency agreed on Articles 3 (Employee Rights), 16 (Training), and 31 (Leave). Importantly, the Union saved the language in Article 3, Section 2.A which requires management to treat employees fairly and equitably in all aspects of personnel management, and without regard to protected class status. As the parties began to focus on Article 9 in November, the Agency abruptly changed its behavior with the Union. Despite the progress that the parties had made in October and November, the Agency alleged that the Union was not bargaining fast enough. The Union retorted that the ground rules give the parties until March 1, 2019 to bargain, and that the parties had just reached agreement on three articles, in addition to numerous articles in prior months. Regardless, the Agency showed no interest in the Union’s proposals the rest of the week, and demanded the mediator release the parties to the Federal Service Impasses Panel (FSIP). The Union opposed this request based on the ground rules and the Agency’s bargaining behavior.

RECENT EVENTS

The mediator ordered the parties back to the table in December for “concentrated mediation” on the rest of the remaining articles. The Union objected based on the parties’ ground rules agreement that provided for bargaining until March 1, 2019, but participated under protest. The results are as follows:

• Committee meetings in Articles 9 (Health and Safety), 18 (EEO), and 20 (Child Care) will be held via technology. The component health and safety committees will be consolidated into one national health and safety committee.
• Article 4: Bargaining at all levels were restored after the Agency’s initial proposal to have all bargaining held at the national level, even for local issues. However, the Agency may elect but is not required to pay travel and per diem for union negotiators. Bargaining will be done by technology or face-to-face when located in the same place (or if the union opts to pay if the agency will not).
• Article 9 (health and safety): In addition to the committee meetings, the Agency finally admitted that it intends to eliminate the Vision Program for all SSA employees (including management and non-bargaining unit employees). We made clear that AFGE was not in agreement with the Agency’s decision, and that the Agency owns that decision. We further stated that the Agency will likely pay in other ways, such as workers comp claims. However, national office advised that this is permissive issue and that the Agency has the right to terminate the program. The Union got language that states that AFGE bargaining unit employees will be eligible to participate in a vision program if the Agency has one.
• Article 13 (Parking and Transportation): The Union saved the transit subsidy at current rates. The parties could not agree on parking procedures. This article remains open.
• Article 17 (Awards): Because of OPM regulations regarding nondiscretionary awards and overtime calculations, ROC awards will not be guaranteed. However, ROC and QSI eligibility based upon appraisal ratings remain the same. The Agency will take reasonable steps to ensure consistency in award amounts for ROC recipients. Employees who are eligible for a ROC but do not receive a ROC can demand an explanation from management. The Union will receive data on awards and amounts by March of each year. The Union succeeded in restoring much of the 2012 contract language.
• Article 18 (EEO): Parts of the EEO ADR MOU pertaining to information (e.g., data on mediation, sanitized settlements, etc.) that the Agency has to provide to the Union were incorporated into the article. The Union succeeded in restoring much of the 2012 contract language.
• Article 19: Eliminated. The language of the articles was management intent, and not useful in a practical. Many of the issues covered in other articles (EEO and Merit Promotion, for example).
• Article 21 (Performance): The Union succeeded in restoring much of the 2012 contract language pertaining to performance discussions, number of management officials in performance meetings, and considerations in assessing performance. However, the Agency maintained its Executive Order provisions regarding elimination of the informal Performance Assistance Plan and a reduced Opportunity to Perform Successfully period (30 days initially proposed), and barring employees from appealing their removals to arbitration. The Agency also sought greater latitude in the use of numerics, quality, and other measures, to which the Union could not agree. However, the US District Court did not invalidate the EO term regarding the one-step PIP process. The Union argued over the PA and OPS provisions with management, and ultimately agreed to the one-step OPS at 60 days rather than 30 days. This article remains open.
• Article 23 (Discipline): The Union succeeded in restoring much of the 2012 contract language here. Just cause and progressive discipline remain in place. However, the Agency maintained its Executive Order provision barring removals from the grievance/arbitration process, to which the Union could not agree. This article remains open.
• Article 24 (Grievance Procedure): The Agency maintained its Executive Order provisions on prohibiting employees from filing grievances over performance appraisals, awards, and removals, as well as other matters. The Union opposed those restrictions, and we did not reach agreement. The Union succeeded in restoring much of the 2012 contract language, including on the timeframes. The Union was also successful in getting management to back off proposals that would allow management to dismiss grievances based on spurious specificity claims. The Union also convinced the Agency to begin electronic filing of grievances for union-management grievances immediately, and employee grievances after one year. This article remains open.
• Article 25 (Arbitration): The parties agreed to try an FMCS arbitration panel process because the current arbitration process has left the parties with few arbitrators. The parties argued at length over costs, but ultimately the Agency agreed to split the arbitrator’s fees and costs equally. The Agency proposed several timeframe hurdles to dismiss arbitration cases prior to hearing, and proposed that all new cases must be heard within six months from invocation or be dismissed. The Union opposed. The Agency dropped many of the timeframe hurdles and agreed that new cases must be heard within two years from invocation, with some exceptions for extensions. The parties remain in disagreement over witness costs, arbitration bars, and other matters. This article remains open.
• Article 26 (Merit Promotion): The Union was successful in restoring 2012 contract language, including on priority considerations. However, the Agency wanted to significantly reduce automatic areas of consideration, factors for best qualified list consideration, and the selection process. The Union could not agree to reducing the automatic areas of consideration. The Union agreed to reverting to IVOL for BQL as part of the OPS deal, and sought to move those factors into the selection process. Management agreed that appraisals and awards can be considered in the selection process, but opposed other factors. This article remains open.

The parties barely discussed representation time and use of space (Articles 30 and 11).

The parties barely discussed telework (Article 41).

The parties barely discussed the length of a new contract (three years versus seven years) (Article 7).

The Agency went through the motions on these articles, and stuck to its anti-union, anti-employee positions. The parties did not discuss on overtime and other matters concerning hours of work (Article 10). These articles remain open.

NEXT STEPS

Last week, the mediator granted the Agency’s request to be released to the FSIP. The Union opposed again based on the ground rules, the Agency’s bargaining behavior, and the number of articles still open. Until the parties reach an agreement, or until the Panel issues an order, the 2012 contract stays in effect.

AFGE is exploring all options to stand up for SSA employees during this process. FSIP is not union-friendly. Administration is pushing to eliminate effective representation and workplace rights for all federal employees, and is working with agencies like SSA to accomplish that goal, and to push bargaining to the Panel as fast as possible. As we fight back against this concerted attack, we will do everything possible to protect our rights and our bargaining unit. Make no mistake, this is a fight for survival.

AFGE just participated in an arbitration hearing over the Agency’s unilateral July 2018 implementation of the Executive Orders. We are waiting on a decision over the recent Executive Order grievance filed over the Agency’s contract proposals. 

In solidarity