AFGE FIGHTS AND WINS ANOTHER CIVIL RIGHTS BATTLE

Some unions had periods in their history when they were downright hostile to civil rights struggles, some unions even today handle civil rights cases but not as part of a core strategy or value, and some unions seem to have gone all in on behalf of those involved in civil rights structure making their union’s fight as much about civil rights as it is labor relations. AFGE is squarely in that last group, often doing things no other federal sector union does. We bring this up because FLRA just upheld an arbitration win AFGE got for a corrections officer denied a reasonable accommodation.Before we get to the case, let’s get to what AFGE does to integrate civil rights as a core strategy and value of the union—rather than just a type of grievance that it is willing to take if someone seeks out the union for help. To begin, it Constitutionally created a third national officer position to focus just on civil rights. The job is called the National VP for Women and Fair Practices (NVPWFP) and is on par with the National Secretary/Treasurer who keeps an independent eye on the money, and the National President who runs the entire show. The NVPWFP helps keep civil rights issues, perspectives and values in all the national leadership discussions as well as make suggestions to staff department about how they could individually promote civil rights. Below the national level, several of AFGE District Vice Presidents have hired people to reinforce locally the efforts of the national program and add to them. And of course we already told you about the great advice manual they have for local union reps to guide them through the EEO charge and complainant processes.

But we are not suggesting that the NVPWFP is there to make up for a lack of commitment to civil rights struggles by the National President. Far from it. David Cox, the AFGE National President, has repeatedly participated in civil rights demonstrations around the country and more than once been led away in cuffs because of his commitment.

Cox also has funded several national staff positions devoted almost exclusively to focusing on civil rights issues, e.g., several EEO Specialist Attorneys, Fair Practice Coordinators, etc. If putting one’s money where one’s mouth is the most valid way to measure one’s credibility, Cox and AFGE have done that. But perhaps most important of all, AFGE has ensured that its commitment to civil rights lies at the core of what it does, irrespective of staff positions, protests, and press releases by specially mentioning the struggles of women and minorities in its Constitutional mission statement:

Article II- OBJECTS AND METHODS: SECTION 1. The object of this Federation shall be to promote the general welfare of government employees, promote efficiency, advance plans of improvement, and promote the full participation of women and minorities in AFGE activities at all levels throughout the Federation.

AFGE’s approach is not the only way to engage in the various civil rights struggles, and it may not even be the best way. But it is an approach that appears unique among federal sector unions and one that creates a benchmark for assessing other unions’ efforts.

In this week’s FLRA decision a correction officer was injured on the job and after a period of rehabilitation under the Workers Compensation program, returned to a light duty assignment for three months. At that point, he submitted medical certification that he would need up to another 12 months of accommodation to complete rehabilitation. The agency demanded a more thorough medical analysis and when the employee submitted it, the agency decided it was not enough. Consequently, it demanded the correction officer return to full duty or go on LWOP. When the agency placed the employee on unpaid leave, AFGE filed a grievance under the American with Disabilities Act. In the end, the AFGE representatives convinced the arbitrator the ADA had been violated, the employee deserved back pay for the period he was on unpaid leave, and we are willing to bet order a payment to AFGE of substantial attorney fees, which one way or another will help the union’s civil rights struggle. (See DOJ, FCI, Englewood, CO and AFGE, Council of Prison Locals, 69 FLRA 474 (2016)) This decision comes on the heels of another very significant AFGE civil rights arbitration victory that we just reported on in AFGE Slaps Down Careless Arbitrator.

Fedsmill.com focuses on these civil rights cases for a few reasons. EEOC statistics show that tens of thousands of federal employees each year have what they perceive to be civil rights workplace problems. While employees can process these complaints through EEOC without asking the union for help, why would a union ever want anyone other than its own representatives addressing workplace problems—whether generated by simple managerial insensitivity, racial contempt, or Congressional actions? Why turn over to an outside lawyer the decision-making role over how to correct a systemic problem with performance awards when unions have a right to bargain over the same issues? It would be like Walmart ignoring the huge number of on-line shoppers. It could let Amazon have that market all to itself, but that would put Walmart on a long slow slide to retail irrelevancy. Private sector unions made that mistake to their eternal detriment. We are hoping that federal sector unions do not.

Another reason for pushing union attention to civil rights issues is that it can greatly strengthen a union’s grievance by adding a civil rights allegation to a simple promotion or other merit-system related grievance, for example.

Frankly, EEOC has become the lead agency for enforcing the “merit” value in civil service matters. OPM does a little work on that but keeps it very quiet via its agency audit process and occasionally a new regulation. But OPM is far more concerned with benefits processing, privacy and streamlining the merit process rather than perfecting it. In contrast, EEOC puts the merit value over supervisory ease-of-operation and issues very public decisions, often including substantial penalties on offending managers, that outline precisely what must be done to qualify as a merit decision. MSPB issues studies on the merit system and an occasional decision involving discrimination issues, but its contributions lack the clout of an EEOC decision ordering hundreds of thousands of back pay, an even greater amount in attorney fees, discipline for the offending managers (if not removal), and training for managers. .

Finally, EEO statistics can vastly improve a union’s arguments at the bargaining table. A September 2013 FLRA ALJ decision outlined how a union successfully makes a particularized need argument to get data on an agency’s performance appraisal and awards programs broken out in a way that can statistically show whether each protected class is being treated fairly. Evidence of systemic problems is generally more persuasive to impasse neutrals than anecdotal examples—and generally presents a far greater public relations threat to an agency than anecdotes.