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Unions Look to Undo Contracts at VA, Other Agencies in Biden Era

Jan. 5, 2021, 3:31 PM

Federal employee unions want to renegotiate labor contracts at agencies across the government once President-elect Joe Biden is sworn in, with a top priority being to eliminate Trump-era provisions that weakened workers’ rights.

“We will try to get meetings with the biggest agencies first,” said Jeff Friday, general counsel for the National Federation of Federal Employees, which represents workers at a variety of agencies, including the departments of Defense and Veterans Affairs.

A placeholder while agencies and unions negotiate new contracts may be to return to the labor contracts they had with their unions before President Donald Trump took office, Friday said. Some of those contracts had been in place for years because of automatic renewal provisions, and Biden in an executive order can instruct agencies to “go back to the status quo” while new contracts are being negotiated, he said.

“Parties to a collective bargaining agreement can always jointly—as opposed to unilaterally—agree to amend the agreement, or re-open it during term,” Friday said. “We need to have local leaders be thoughtful about what our asks will be,” and going back to the previous labor contracts will give agencies and unions time to negotiate new contracts, he said.

NFFE and other federal unions are particularly interested in removing provisions from collective bargaining contracts that were imposed after Trump issued three executive orders in May 2018 that made it easier to discipline agency employees while making it harder for unions to represent those workers, Friday said.

Though a federal district court threw out portions of the orders, many agencies moved to enforce them after that ruling was overturned last fall on jurisdictional grounds by the U.S. Court of Appeals for the District of Columbia Circuit.

‘Most Pro-Labor’

The president-elect is typically described as a moderate Democrat. But his views on labor issues arguably put him to the left of presidential predecessors Barack Obama and Bill Clinton.

Biden among other things is promising to rescind the Trump orders on his first day in office, and to create a cabinet-level working group that will look for ways to promote union organizing and collective bargaining in the public and private sectors.

Biden “may well be the most pro-labor president that we’ve ever had. He certainly has the relationship with the unions,” Friday said.

The American Federation of Government Employees and NFFE expect more cooperation from the incoming administration on protecting federal employees from workplace exposure to Covid-19, Friday and AFGE Director of Field Services and Education David Cann said in separate interviews.

As of now, the unions generally are hearing that agencies aren’t willing to bargain over providing protective equipment, notifying employees of possible exposure to the coronavirus, and how vaccines are rolled out, they said.

“Their response is that this is an emergency” and these topics aren’t negotiable given the circumstances, Friday said.

The White House and its Office of Management and Budget didn’t immediately respond to requests for comment.

‘Run Out The Clock’

Government unions, including those that represent federal employees, shouldn’t be permitted to engage in collective bargaining, said Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation. The foundation earlier this year asked the government to consider imposing new limits on lobbying by federal employee unions, winning a ruling now being challenged in court.

“Union officials use their special government-granted powers to resist and run out the clock on even modest reforms pushed by any elected official who puts taxpayer and the public interests first, all while working to elect candidates who will sell out taxpayers and independent-minded workers while ‘bargaining’ with the very union officials” that helped to elect them, Semmens said.

The Department of Veterans Affairs, the second-largest federal agency with about 413,000 employees, has had an especially rocky relationship with its unions.

Since November 2019, the department has required its unions to vacate or pay for office space that was previously provided for free, and further restricted VA employees from performing union representation activities during work hours.

More recently, leaders of AFGE locals alleged the department isn’t sharing critical information about its response to the Covid-19 pandemic with its health-care unions.

NFFE’s contract with the department is “a total mess” after years of labor disputes, Friday said. Some of its provisions were agreed upon by the parties and others were imposed by the Federal Service Impasses Panel after the VA said labor talks had come to a standstill, he said.

The union is also challenging the VA secretary’s authority to nix some provisions, Friday said.

A Contract Revisited

AFGE, the largest federal employee union, similarly plans to revisit its contract with the agency after inauguration day, Cann said. The union’s VA contract also is a hodgepodge, with some provisions imposed, others agreed to, and still others the subject of pending litigation, he said.

“Agencies need to be told not just that the orders are repealed but that they need to revisit labor contracts,” Cann said.

The VA’s bargaining agreement modifications—particularly those barring union activities during work hours and requiring office space payment—have moved “hundreds of medical professionals who had been serving unions back to health care jobs serving veterans,” department spokeswoman Christina Noel said.

Those modifications barred nearly 430 medical professionals from doing representational work on office time, according to the agency. It’s also resulted in more office and clinical space for serving veterans, she said. The department eliminated hiring red tape too, “improving VA’s ability to recruit and fill vacancies in a timely fashion.”

Federal employee unions opposed Trump’s June 2017 signing of the VA Accountability Act, which among other things made it easier to discipline VA employees, she said. It’s no surprise that they are now seeking to reverse “important progress” in making the department more accountable, Noel said.

Bargaining over Covid-19 protections isn’t appropriate at this time, Noel said. “The fact that union bosses are attempting to bargain in the midst of the greatest public health emergency in our lifetime underscores how out of touch they are with the needs of veterans,” she said.

Health & Human Services

The Department of Health and Human Services is also getting scrutiny.

Tony Reardon, president of the National Treasury Employees Union, said the bargaining team at HHS “refused to negotiate, walked away from the table, and then sought to illegally implement contract provisions that stripped employees of long-held rights.”

“NTEU has successfully litigated many of the agency’s most harmful unfair labor practices actions, and settling those cases with a new administration can restore collective bargaining agreements that, once again, will respect the rights of employees,” he said.

An arbitrator found last fall that the agency engaged in unfair labor practices by bargaining a new contract in bad faith and prematurely declaring that the negotiations had reached a dead end. While an appeal of that decision remains pending, the parties have resumed negotiations over provisions that weren’t subject to the arbitration ruling, the agency and the union said.

“HHS has worked with employees and their union representation to improve the operations of the department with the aim of making the federal government a better place to work and better able to deliver services to the American people,” agency spokeswoman Katherine Keogh said in a statement.

Other agencies that are engaged in negotiations with the union “will have time to reverse their anti-employee approach and bargain in good faith with the union,” Reardon said, declining to discuss those ongoing negotiations.

‘Permissive’ Subjects

Federal unions also are looking to restore bargaining with federal agencies over “permissive” subjects, such as the numbers, types, and grades of employees and the technology, means, and methods used to perform agency work, Friday said.

Such bargaining was required during the Clinton administration and was an option during the Obama administration, but Trump and Clinton’s immediate successor, George W. Bush, declined to engage in it.

Biden is pledging to instruct agencies to bargain with their unions over permissive subjects. This kind of bargaining could become especially significant at a time when many employers, including federal agencies, are looking to automate processes and reduce the need for people to handle certain kinds of repetitive tasks.

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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