SSA & AFGE: FSIP BIGOTRY GONE WILD
You can almost always rely on zealots to overreach. In fact, it is their greatest weakness and typically exposes a core bigotry. The new SSA-AFGE Panel decision is a great example of that. The Panel cut the union’s yearly bank of official time from 250,000 hours to 50,000 without any serious basis in evidence, e.g., how many grievances were filed, negotiations held, formal meetings scheduled, investigatory interviews booked, etc. But to add insult to this injury it also required that any time union reps spend representing employees in the EEO process must be charged to that bank of time for collective bargaining activity. And that is where these seven anti-union bigots may just have revealed who they actually are and crossed a line rendering their entire order unenforceable.
Government-wide regulations permit employees filing EEO charges to choose a co-worker to represent them and gives that co-worker a reasonable amount of official time to do so. (See 29 CFR 1614.605) Employees do not have to negotiate for this time and it is beyond absurd to think that EEOC’s regulations permit an agency to penalize an employee for exercising his/her right to the time to help a co-worker. Yet, the Panel members ignored the fact that government-wide regulation exists and have created a mess that only a bundle of litigation can resolve–absent some last minute sanity by SSA.
For example, if employees want to file an EEO charge, typically they are going to ask the union to represent them. Union reps generally have deep experience with a wide range of HR matters, access to professional legal assistance, experience with EEO complainants, and a track record of standing up to managers. Most other employees have none of these. However, if the employee wants a union rep’s help under the new agreement, the Panel just put a big hurdle in her way. The union rep can get time, but every hour of unlimited reasonable time the rep uses under EEOC regs will result in the union rep losing an hour of negotiated collective bargaining bank time.
That means it will be harder for the employee to get a union rep to help her than to get other employees unconnected to union representation to help. Another way of putting that is to say the Panel just made it harder for victims of discrimination to get the co-worker of their choice to represent them in an EEO matter—not to mention the people with the experience, connections and courage to go a good job for them. What the Panel did is conceptually the same as if it said that when an employee wants the help of a co-worker who has actual experience with EEO complaints that co-worker is going to suffer a penalty—whether s/he is a union rep or not. Ditto if they want a college graduate, an employee with an outstanding evaluation or a manager.
Here is another perspective on the harm done. If a union rep would like to help employees not just in collective bargaining matters, but also EEO complaints, s/he now pays a price by losing bank time negotiated for collective bargaining matters. An employee unconnected to the union does not pay that or any similar price for helping EEO complainants. Consequently, the union rep is being penalized just because he is a union rep. That sure sounds like a violation of 5 USC 7116(a)(1) to us. If we are wrong and that is legal, what would stop an agency from telling an employee using time to represent a discrimination victim that s/he will lose an hour of available time to telework for every hour spent on the EEO matter or maybe an hour of overtime work?
One more perspective before we close. By penalizing the union’s bank time entitlement if it dares to help employees victimized by discrimination, the union is paying a price for associating with members of classes of employees protected by civil rights laws and regs. This sure sounds like a classic case of “associational discrimination,” which we have written about in the past. That opens the door to the union claiming financial damages, attorney fees, and other corrective action.
As we hinted above, SSA could avoid all these and other potential problems by dropping this demand and treating union reps who offer to help discrimination victims just like anyone else. (Of course this assumes that AFGE lets it make a unilateral modification or even ratifies the current deal.) Otherwise, it seems as if the agency head will have no choice but to disapprove the agreement. Agreements must be approved as a whole; agency heads can’t cherry pick when disapproving provisions and let just the pro-agency material go into effect.
If the agency head does not disapprove and send the parties back to negotiations, the union might have some interesting options beyond including an allegation of representational retaliation with every EEO charge filed. Why could AFGE not file a grievance ULP against SSA for failing to disapprove an agreement with an obviously illegal clause? Approving an illegal agreement sounds like a (a)(5) bad faith bargaining violation as well as an (a)(8). The remedy would be to suspend operation of the Panel-imposed agreement, reinstate the old agreement and make employees and the union whole for any harm done by the Panel’s illegal agreement.