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Locals 98 and 777, along with Locals 8A, 27, 28, 29, 86, 96, 98, 259, & 561, introduced the following resolution to the IFPTE 61st Convention in New Orleans, LA. We reprint it verbatim here, but with added links to the evidence that supports our assertions. RESOLUTION NO 10
RESTORATION OF THE IFPTE ACE COUNCIL WHEREAS, The IFPTE local unions representing US Army Corps of Engineers workers came together in 2000 to form a council within IFPTE; and WHEREAS, At the May 2001 meeting of the IFPTE Executive Council, the Federation President recommended, and the Executive Council unanimously approved, granting a charter to the IFPTE National Council of Army Corps of Engineers Locals (informally known as the “Army Corps Council” or the “ACE Council”), as evidenced in the minutes of the meeting; and WHEREAS, The ACE Council has bonded its officers as required by law since its chartering, has maintained its own bank account, and the Federation has been collecting dues from member locals for over 20 years on behalf of the ACE Council and has provided most of these dues to the ACE Council; and WHEREAS, There was a dormant period where the ACE Council was not meeting or otherwise active, but the financial responsibilities were cared for by one of the most recently elected officers; and WHEREAS, In 2021, several local unions sought to reinvigorate the ACE Council, and in 2022 the members of the ACE Council elected new officers and approved amended bylaws which were approved by the Federation; and WHEREAS, The restarting of the ACE Council was surrounded by some confusion as to whether the ACE Council was an official subordinate body or an “informal” part of IFPTE, with the Federation stating that the ACE Council was an informal body and the charter status was not investigated at that time; and WHEREAS, The ACE Council had not previously filed LM forms with the U.S. Department of Labor, and in a 2022 email the General Counsel of the IFPTE instructed the ACE Council officers not to begin filing these forms; and WHEREAS, In August 2023, the Federation President and other officers and staffers met with the ACE Council officers and required them to get permission from the Federation President and Secretary-Treasurer to spend any ACE Council funds; and WHEREAS, In January 2024, the Federation was able to locate the Executive Council minutes proving the Council had been chartered; and WHEREAS, In February 2024, the ACE Council requested clarification as to the status of the trusteeship (restriction of autonomy) that had been imposed on the ACE Council, now that the charter status was clearer, and offered the Federation President an opportunity to remove the restrictions so that a trusteeship did not exist; and WHEREAS, In March 2024, the Executive Council voted to revoke the charter of the ACE Council, and no prior notice was given to the ACE Council that this would be discussed by the Executive Council, and no opportunity was given to know the reasons this action was being considered or for the ACE Council to address the Executive Council; and WHEREAS, The locals in the ACE Council still wish to be chartered and to have the full autonomy afforded to any other IFPTE subordinate body, including to set and collect its own dues, spend its funds, etc., and WHEREAS, the ACE Council stands ready to fulfill all obligations and responsibilities related to that status, including filing initial and annual reports with the U.S. Department of Labor and Internal Revenue Service, bonding its officers, and so on; THEREFORE BE IT RESOLVED, The Federation President shall reissue a charter to the National Council of Army Corps of Engineers Locals at no cost to the ACE Council no later than September 1, 2024, and BE IT FURTHER RESOLVED, That the ACE Council shall be immediately afforded the full autonomy available to all IFPTE subordinate bodies, which shall not be restricted in any way whatsoever by the Federation without full adherence to the trusteeship provisions of Article 17 of the IFPTE Constitution and applicable federal law.
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An ad hoc committee of federal employees from various unions and agencies are circulating the Open Letter below to build pressure to ensure Ernest DuBester's confirmation to the Federal Labor Relations Authority before the end of 2022. Here, ACEcouncil.org hosts the letter while we begin collecting signatures. Please complete this form to add your name and to pledge your support for a functional board at the FLRA.
Dear Senator Schumer, As federal public servants and supporters, we are urging you to ensure President Biden’s nominee to the Federal Labor Relations Authority (FLRA), Mr. Ernest DuBester, is confirmed by the end of this year. We believe Mr. DuBester is an exceptionally well‐qualified candidate. He has served as an FLRA member since 2009 including two terms as Chair and brings a wealth of knowledge and experience regarding federal labor law and the Statute to the position. He has a well‐earned reputation for fairness and respect for the law, as reflected in his nominations to the FLRA by four Presidents from both political parties and confirmations in the Senate six times with bipartisan support. Despite Mr. Dubester’s impeccable qualifications and reputation, partisan members of the Senate Homeland Security and Governmental Affairs Committee have leveled baseless accusations against him in a calculated attempt to delay his confirmation. It has now been more than a year since President Biden nominated Mr. DuBester to the FLRA and he has yet to be confirmed. If no action is taken by the end of the year, Mr. DuBester’s FLRA appointment will expire resulting in a split FLRA, unable to function effectively for the foreseeable future. As you know, federal public servants depend on a fully functioning and fair FLRA to ensure the stability of labor‐management relations, to protect our ability to form and join unions, to bargain with agencies on working conditions, to resolve unfair labor practice complaints, and to know that our rights as workers will be protected so we can focus on serving the public. In President Biden’s letter to the federal workforce in March of this year, he wrote, “Together, we can lead by example and show our country a way forward”. We agree. As federal public servants, we will continue to serve the public day in and day out; we are calling on you to do your part by filing a discharge petition to bring Mr. DuBester’s nomination out of committee and to the Senate floor for a confirmation vote. Mr. Dubester’s confirmation will help to ensure a fully functioning and fair FLRA and thereby set an example for the rest of the country as to what fair and effective labor‐management relationships can look like. Signed, Federal Public Servants & Supporters Complete this form to add your name as a signer. As the end of the year approaches, if DuBester remains unconfirmed, we will deliver this letter to Sen. Schumer and seek any necessary support to confirm Mr. DuBester. President Trump's anti-Union majority at the Federal Labor Relations Authority (FLRA) remained in control for more than a year after Biden entered the White House. In early 2022, ACE Council directors authored and circulated this open letter to Chuck Schumer pressing for confirmation of President Biden's nominees to the FLRA. In May, Susan Grundmann was confirmed by the Senate, finally delivering to the Democrats the majority to which they are entitled as the party of the sitting president. That letter, along with the full list of signatory locals, is here: open_letter_to_chuck_schumer.pdf
UPDATE: As of October 2022, Ernest DuBester remains unconfirmed by the Senate. If DuBester isn't confirmed by the end of the 2022, the Democrats will again lose their majority at the FLRA. The first decision issued by the current three Members was 70 FLRA No. 74 (December 15, 2017). Since that date, the current FLRA has issued 489 decisions, published in FLRA volumes 70, 71 and 72. This list of the 10 worst reasoned FLRA decisions since the current Republican majority panel started issuing decisions focuses on decisions that dramatically changed long standing precedent and which were issued on a 2-1 Republican Members majority vote, with well-reasoned dissents from the Democratic Member (now Chairman). All of these FLRA Republican majority decisions diminished labor organization rights and constructed obstacles to collective bargaining. Some of these 2-1 decisions were appealed to, and have since been either vacated by or remanded by, the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit has been highly critical of the FLRA in these vacated and remanded decisions.
10 Topic: Union-Initiated Mid-Contract Bargaining Existing Precedent that Was Changed: The Statute encompasses a union right to initiate midterm bargaining over matters not contained in or covered by the term agreement. U.S. Dep’t of the Interior, Wash., D.C., 56 FLRA 45 (2000). New Holding: Proposals that concern midterm-bargaining obligations - whether they resemble reopener or zipper clauses, or take some other form - are mandatory subjects of bargaining under the Statute. Thus, whether a union can initiate mid-contract bargaining, and zipper clauses that prohibit union initiated mid-contract bargaining, are both negotiable matters. U.S. OPM, 71 FLRA 977 (2020). D.C. Circuit Vacates: AFGE, AFL-CIO v FLRA, No. 20-1398, (D.C. Cir. 1/28/2022) (“We begin where the Authority did, with its holding that the Statute does not require midterm bargaining. We vacate that holding as arbitrary and capricious. We then consider the Agency’s ultimate holding that zipper clauses are mandatory bargaining subjects. Because the Authority treated its first, invalid holding as the ‘necessary’ predicate to its second, we must vacate the latter as well.”) Impact of the Decision on Federal Sector Unions: The FLRA’s change in precedent requires unions to obtain a contract benefit to engage in union-initiated midterm bargaining. Thus, unions will need to trade something of value at the bargaining table in hopes of securing what was, until this decision, a statutory right – or to delay a CBA and go to impasse. Thus, unions will no longer have the statutory right to initiate mid-term bargaining and, in order to bargain over mid-contract issues, will instead have to rely upon the mercy of management to initiate workplace changes; such as in response to the potentially life-threatening hazards posed by the COVID crisis. 9 Topic: The amount of impact necessary to trigger a statutory duty to bargain over a change in a condition of employment. Existing Precedent that Was Changed: From the mid-1980s until this policy statement, there was a statutory duty to bargain over any workplace changes that have “more than a de minimis effect” on a condition of employment. HHS, SSA and AFGE, Local 1760, 24 FLRA 403 (1986). New Holding: The duty to bargain is triggered only if a workplace change has “a substantial impact on a condition of employment.” U.S. Dep’t of Education, 71 FLRA 968 (2020). D.C. Circuit Vacates: AFGE, AFL-CIO v FLRA, No. 20-1396 (D.C. Cir. 2/1/2022) (“The cursory policy statement that the FLRA issued to justify its choice to abandon thirty-five years of precedent promoting and applying the de minimis standard and to adopt the previously rejected substantial-impact test is arbitrary and capricious….”) Impact of the Decision on Federal Sector Unions: The FLRA’s new holding severely restricts a union’s statutory right to bargain over changes in conditions of employment. Many changes that had been negotiated over the past 3 decades, under this change in precedent would now no longer trigger a duty to fulfill the statutory bargaining obligation before making a change. 8 Topic: Revoking a section 7115 dues authorization. Existing Precedent that Was Changed: Section 7115(a) requires that a dues authorization may be revoked only at intervals of one year. U.S. Army, U.S. Army, Materiel Dev. & Readiness Command, Warren, MI, 7 FLRA 194 (1981) New Holding: “After the expiration of the one-year period during which an assignment may not be revoked under 5 U.S.C. § 7115(a), an employee may initiate the revocation of a previously authorized assignment at any time that the employee chooses,” and the employing agency must process the employee’s dues-revocation made after the first year “as soon as administratively feasible.” Office of Personnel Management, 71 FLRA 571 (2020). This holding was codified in the FLRA regulations at 5 CFR 2429.19 (8/10/2020) Impact of the Decision on Federal Sector Unions: This holding and regulatory change allows union members to revoke their dues authorizations at any time after one year, instead of only once a year during a negotiated open window period. 7 Topic: The status of CBA provisions in a CBA that remains in effect while a new CBA is being negotiated. Existing Precedent that Was Changed: There is no right to a section 7114(c) review of the existing CBA and the CBA provisions take precedent over any conflicting Government-wide regulations that had issued during the CBA’s existing term. New Holding: When parties continue a current CBA during negotiation of a new CBA, there can be 7114(c) review of the current CBA and all government-wide regulations that became effective during the term of the agreement can render a CBA provision void. U.S. OPM, 71 FLRA 986 (2021) D.C. Circuit: NTEU et.al v. FLRA, Nos. 20-1400, 1402 and 1403. Oral argument was held on September 15, 2021. The media reported that the Court was skeptical of the FLRA rationale. Impact of the Decision on Federal Sector Unions: This holding lessens the viability of existing CBAs that the parties have agreed to follow during new term negotiations and creates instability during those new term negotiations. 6 Topic: Differences between conditions of employment and working conditions. Existing Precedent that Was Changed: “Conditions of employment” and “working conditions” are not distinguishable for purposes of finding a bargaining obligation. GSA, Eastern Distribution Center, Burlington, NJ and AFGE, Council of GSA Locals C-236, 68 FLRA 70 (2014)New Holding: “Conditions of employment” are different than “working conditions.” A change which affects “working conditions,” but not “conditions of employment,” does not constitute a change that triggers a statutory duty to bargain. U.S. DHS, U.S. Customs and Border Protection, El Paso, Texas and AFGE, NBPC, Local 1929, 70 FLRA 501(2018) D.C. Circuit: Vacates and Remands: AFGE, AFL-CIO, Local 1929 v FLRA, 961 F.3d 452 (6/9/2020) (“In sum, the Authority departed from precedent based on a misreading of case law and without explaining the departure.” “Agencies reading El Paso are left wondering how the Authority reached its decision that the CBP was free to issue the Memo without bargaining in light of section 7103(a)(14)’s language and so are we.”) FLRA on Remand: While the 2-1 majority was “constrained” by the D.C. Circuit to find a change in a condition of employment, the majority gratuitously declared that had it been argued by the agency, it would have found the change de minims and thus no duty to bargain. Moreover, the 2-1 majority, as stated in the dissent, “once again, asserts that the term “working conditions” must be “separately analyzed” and defined. And, remarkably, it once again defines the term to mean “the circumstances or state of affairs attendant to one’s performance of a job.” U.S. DHS, U.S. CBP, El Paos, X and NBPC, Local 1926, 72 FLRA 7 (2021). Impact of the Decision on Federal Sector Unions: This holding drastically curtails a union’s statutory right to request to bargain over workplace changes. When this decision is applied in conjunction with the FLRA’s majority’s attempt to change the de minimis mid-term change standard to substantial impact and to erase a union’s statutory right to initiate midterm bargaining, it is clear that the real purpose of these decisions is to limit midterm bargaining as much as possible. Moreover, the 2-1 majority has not accepted the D.C. Circuit rationale, creating a confusing legal landscape for agencies and unions. 5 Topic: The negotiability of the frequency of telework (days per week/pay period). Existing Precedent that Was Changed: Where there is no relationship between job location and job duties, a provision addressing job location does not violate the right to assign work. U.S. HHS, Centers for Medicare & Medicaid Services, Balt., MD., 57 FLRA 704, 707 (2002) (finding an arbitration award - based on a violation of the parties’ agreement - requiring the agency to allow the grievant to telework two days per week was not contrary to management’s right to assign work) and U.S. FDA, Detroit District, 59 FLRA 679, 682-83 (2004) (finding an arbitration award - based on a violation of the parties’ agreement - allowing employees to telework nine out of ten days did not affect management’s right to assign work). New Holding: The frequency of telework - the “when” an eligible employee may perform his or her duties away from the duty station and “when” that eligible employee must report to the duty station - is inherent to management’s right to assign work. The FLRA majority declared that it would no longer follow cases that held otherwise. Further, since management has the right to provide its supervisors with in-person access to employees for the purpose of directing, monitoring, and evaluating their work, a proposal that dictates to management how often the agency can require a telework eligible employee to perform work at the duty station impermissibly affects management’s right to direct employees. NTEU and U.S. Dep’t of Agriculture, FNS, 71 FLRA 703 (2020). D.C. Circuit Vacates and Remands: NTEU v FLRA, No. 20-1148 (D.C. Cir. 6/22/2021) (“Because the FLRA majority failed to address the specific proposed CBA provisions related to telework eligibility and FNS management discretion, its decision - that the Proposal affects management’s rights to assign work and to direct employees and therefore falls outside the duty to bargain - was not reasonably explained.” “Because it is based on “a misunderstanding of the union’s proposal,” the FLRA decision is not a product of reasoned decision making.” “In sum, reasoned decision making requires the FLRA to consider the Proposal’s specifications, together with the proposed CBA’s relevant telework-eligibility and management-discretion provisions, in order to determine whether the Proposal affects management’s rights under § 7106(a).”) Impact of the Decision on Federal Sector Unions: Telework has become the norm in the Federal sector due to the pandemic. The past two years has demonstrated that many types of employees can successfully perform the full range of their duties while on telework. With agencies planning reentry to the physical work place, unions will be negotiating continued telework for telework eligible employees. This change in precedent takes that extremely significant issue (number of days of telework) off of the bargaining table. 4 Topic: Scope of FLRA review of an arbitration award. Existing Precedent that Was Not Properly Applied by the FLRA: The FLRA does not substitute its judgement for that of the arbitrator. U.S. Army Missile Materiel Readiness Command and AFGE, Local 1858, AFL-CIO, 2 FLRA 433 (1980). FLRA Improper Application: Although the FLRA cited the correct legal test for review of an arbitration award, it failed to follow that standard of limited and differential review. NWSEO and U.S. Dep’t of Commerce, NOAA, NWS, 71 FLRA 275 (2019). D.C. Circuit Vacates and Remands: NWS v FLRA, No. 19-1163 (D.C. Cir. 7/31/2020) (“Whether the Arbitrator correctly interpreted the CBA was beyond the scope of the Authority’s review. Yet the Authority engaged in a much more searching review of the Arbitrator’s decision than permitted by law.” “The Authority’s view that the Arbitrator erred in his interpretation of the CBA is inadequate to warrant vacatur of the Arbitrator’s Award. Because the Authority failed to apply the correct standard of review, it acted contrary to law.” “The issue is not whether the Authority reasonably construed [the CBA] but rather whether it acted lawfully by applying the proper standard of review to the Arbitrator’s interpretation of [the CBA].” Impact of the Decision on Federal Sector Unions: The 2-1 Republican majority has found many arbitrators’ awards that have favored a union did not draw their essence from the CBA. Unfortunately, these FLRA arbitration decisions are not subject to U.S. Circuit Court review unless they involve a ULP. Section 7123(a)(1) of the Statute. The FLRA got caught in this case because the grievance also included a ULP allegation, hence Circuit Court jurisdiction. In sum, a reading of the arbitration decisions of this 2-1 FLRA panel reveals many decisions where the FLRA Republican majority set aside an arbitration award simply because the 2-1 majority disagreed with the arbitrator’s interpretation of the CBA and substituted the majority’s own judgement. 3 Topic: Past Practices that are Inconsistent with a CBA.Existing Precedent that Was Changed: It is appropriate for arbitrators to find that a past practice has modified the terms of a collective-bargaining agreement since proof of a past practice is a significant evidentiary consideration in labor-management arbitration that can be used to support allegations that the clear language of the written contract has been amended by mutual agreement. U.S. Dep’t of VA, N. Ariz. VA Health Care System, Prescott, AZ., 66 FLRA 963 (2012) New Holding: Arbitrators may not look beyond a collective-bargaining agreement – to extraneous considerations such as past practice – to modify an agreement’s clear and unambiguous terms. U.S. SBA and AFGE Local 3841, 70 FLRA 525 (2018) Impact of the Decision on Federal Sector Unions: Even though the parties have an established past practice that modified a provision of their CBA, the union cannot file a grievance to enforce the past practice. 2 Topic: Whether or not the Department of Justice, Immigration Judges are covered by the Federal Service Labor-Management Relations Statute. Existing Precedent that Was Changed: Immigration Judges are not management officials. U.S. DOJ, Executive Office of Immigration Review and NAIJ, 56 FLRA 616 (2000) New Holding: Immigration Judges are management officials. U.S. DOJ, Executive Office for Immigration Review and NOIJ, 71 FLRA 1046 (2020), reconsideration denied, 72 FLRA No. 121 (2022). Impact of the Decision on Federal Sector Unions: This decision disenfranchises an entire bargaining unit that has been in existence since 1979. The decision also demonstrates the machinations that the 2-1 majority will undertake to reverse 42 years of precedent to diminish Federal sector collective bargaining. 1 Topic: The Union of Authority Employees. Policy Decision: The 10th worst decision is not an FLRA case decision but a policy decision made by the former Chairman. After the latest CBA between the independent Union of Authority Employees, which represented FLRA employees, and the FLRA expired in December 2018, the then Chairman withdrew recognition. Background: The Union of Authority Employees was recognized by the FLRA in 1980 after a secret ballot election. The Department of Justice, Office of Legal Policy had issued a decision that in the absence of any legislative history to the contrary, and absent the existence of any other law or regulation which would prohibit the FLRA from establishing for its own employees a labor relations system for its own employees, “Congress did not intend to prelude the FLRA from establishing for its own employees a labor relations system developed consistent with appliable laws and regulations and the Authority’s unique status under the Statute.” The Union of Authority Employees had a cooperative labor-management relationship with the FLRA for over 38 years under three Republican and three Democratic Presidents. Impact of the Decision on Federal Sector Unions: After 38 years of cooperative labor relations under 6 Presidents and numerous Chairmen of both political parties, and which had no adverse effect on the FLRA’s administration of the Statute, the then Chairman, without any Department of Justice review, decided that the FLRA had been violating the Statute since the FLRA was created, and withdrew recognition. The then Chairman was right and the 6 Presidents and the previous numerous FLRA Chairmen were wrong. This policy call is but one illustration of the anti-union philosophy of the current Chairman, and a precursor to the above FLRA decisions limiting union rights under the Statute. |
EditorsThe editors of this newsletter are the volunteer directors of the ACE Council. All are Army Corps civilian employees and labor movement activists. Archives
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