Defiant DeVos Ignores Judge’s Order, Ends Union Release Time

Plans to Unilaterally Ban Telecommuting Option For Employees

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BETSY DeVOS
BETSY DeVOS: A law unto herself?

Despite the ruling last month by U.S. District Judge Ketanji Brown Jackson that struck down President Trump’s May Executive Orders seeking to force Federal unions out of the workplace, Secretary of Education Betsy DeVos is doubling down in her effort to make the Department of Education a “no-union” zone, according to officials with the American Federation of Government Employees.

As a result, the union said, by Oct. 1 its 4,000 members employed by the U.S. Department of Education in Washington, D.C. and 10 satellite offices will lose the option of telecommuting that’s been available for years.

A Do-It-Herself Pact

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Ms. DeVos in March unilaterally declared an impasse and imposed what her agency called “a collective-bargaining agreement” that covered the unionized workers in her agency without negotiating with the union.

The AFGE filed a complaint with the Federal Labor Relations Authority and prevailed in July. The FLRA Regional Director agreed with the union that Ms. DeVos had engaged in an unfair labor practice when her management team walked away from the bargaining table and imposed its “contract.”

But the FLRA currently lack enforcement powers because President Trump has not appointed its General Counsel, who is required to present the FLRA findings to the agency’s full board for final approval.

‘DOE More Recalcitrant’

“Despite the FLRA finding, and now Judge Jackson’s ruling, there’s been no change from the DOE—if anything they have become more recalcitrant,” said Cathie McQuiston, deputy general counsel of AFGE. “They threw us out of the offices and ended official release time so we could represent our members. Ironically, Trump’s Executive Order was less draconian.”

Ms. McQuiston said that many of the 4,000 members of its DOE bargaining unit work on Federal Student Aid programs or as lawyers for the Office of Civil Rights, which oversees the enforcement of Title 9.

“That telework option with its life/work balance was a big selling point for this workforce, and it had been around so long that the agency realized savings by reducing the office footprint,” she said. “Now, there will be no place for these people to work.”

She continued, “They are just stonewalling to shove through all these changes until some third party stops them, and at that point they are likely to say it’s too onerous to reverse course.”

An email query to the DOE got no response.

In the rest of the Federal Government, Judge Jackson’s ruling striking down Mr. Trump’s anti-union Executive Orders appeared to register. The U.S. Office of Personnel Management Director Jeff T.H. Pon issued a memorandum to every Federal agency instructing them to abide by Ms. Jackson’s ruling.

‘Will Fully Comply’

“OPM will fully comply with Judge Jackson’s Order and encourages other agencies to consult with their offices of human resources and general counsel to determine proper compliance measures based on the Order,” Mr. Pon wrote Aug. 29. “OPM will work with the U.S. Department of Justice to evaluate next steps in this litigation and will provide additional guidance to agencies as appropriate.”

“AFGE is proud to have led the way in this legal victory for Federal employees and the unions that represent them,” said AFGE President J. David Cox Sr. “We are continually resolved in our conviction to protect and preserve critical government services and functions for all Americans. We will not let up this fight until all Federal employees are given the workplace protections and conditions they deserve.”

After Mr. Trump signed the Executive Orders, several agencies, including the Social Security Administration and Department of Veterans Affairs, moved quickly to implement them. That included kicking union representatives out of their offices and prohibiting them from using official time to meet their obligations to rank-and-file workers.

Mixed Responses

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“After the court ruling, some VA facilities immediately restored official time for union reps and returned them to their union offices,” according to an AGFE press statement. “The majority, however, did not, saying they were waiting for guidance from VA Central Office.”

The union reported that prior to the OPM directive “the Social Security Administration appeared to be continuing implementation of the Executive Orders despite the court ruling.”

The Department of Defense made some isolated changes in line with Mr. Trump’s directives “but it was overall very limited, as they had been largely waiting for the outcome of the lawsuits,” according to the AFGE.

Under Judge Jackson’s ruling, agencies cannot implement Mr. Trump’s imposition of a 25-percent cap on the use of official time or enforce his call to place limits on the unions’ customary use of agency facilities, office space and computers.

Relaxed Discipline Rules

The ruling did leave portions of his Executive Orders intact that directed agencies to closely document and rein in the use of official release time, as well as lifting any previous requirement that agencies use “progressive discipline” prior to firing a Federal employee.

The National Treasury Employees Union said in a statement that after Judge Jackson’s decision, Federal agencies “responded with mixed messages.”

“Several agencies had taken actions of varying degrees to carry out the executive orders,” said NTEU National President Tony Reardon. “With the judge’s decision unequivocal in affirming the agency obligation of good-faith bargaining, it is time for agencies to fulfill that obligation.”

 

 

 

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