Both sides in a seething labor dispute at the EPA are accusing each other of negotiating in bad faith, as the agency’s biggest union gears up to take its case to a federal adjudicator.
At the heart of the dispute is a new labor agreement between the Environmental Protection Agency and the American Federation of Government Employees, which represents some 8,000 of the EPA’s 14,000 workers.
AFGE is in the process of preparing a formal complaint to the Federal Labor Relations Authority, which rules on labor disputes involving the civil service, said Gary Morton, president of AFGE Council 238.
The union’s complaint centers on the allegation that it was given a unilateral directive that took effect July 8 without being given the chance to provide input and without its consent.
A win for the union before the FLRA is far from certain: The three-member board ruled in favor of management 80% of the time between December 2017 and Feb. 6, according to a study of 112 of the 130 rulings issued during that time by Richard J. Hirn, a Washington-based labor lawyer.
Depending on the type of complaint the AFGE files, the FLRA may not be able to act until it confirms a new general counsel.
President Donald Trump’s nominee, Department of Health and Human Services Principal Deputy Assistant Secretary for Administration Catherine Bird, was approved by the Senate Homeland Security and Governmental Affairs Committee on July 24, setting up a Senate floor vote.
Heavy Toll on Morale
The new contract gives EPA managers the right to unilaterally take away the option to telework, according to AFGE.
The union also says the new contract requires it to vacate its office space at the EPA, cuts down the amount of time union officials who are also EPA employees can spend helping other workers, and takes away some of the union grievance and arbitration procedures used to challenge terminations, discipline, and layoffs.
“We feel it’s a violation of labor standards because they’re not negotiating in good faith,” Morton said. “They wanted us to sign an agreement with one day’s notice, and when we didn’t, they imposed this. We’re still willing to negotiate, but we can’t do it with a gun to our head. They’re saying, ‘If you want to work, follow these rules. If not, go find another place to work.’”
The dispute—and the overall change in the relationship between EPA workers and managers—is also taking a heavy toll on workers, Morton said.
“The fear factor is incredible at the agency,” Morton said. “Basically the agency is in a state of chaos as it goes against itself. It’s a civil war of the careerists against the politicals.”
EPA Alleges Bad Faith
In response, an EPA spokesperson said the union is guilty of “bad faith delays and unsuccessful litigation attempts.”
The EPA has been trying to get AFGE to come to the negotiating table since May 2018, but the union later abruptly decided not to negotiate new ground rules for talks on the contracts, the spokesperson told Bloomberg Environment.
“New ground rules would have been a predicate to negotiations over a new contract,” the spokesperson said. “AFGE walked away from the bargaining table.”
The EPA says it then had the right to give notice about its intention to implement a new contract that replaces the previous one in its entirety.
The new contract “provides more accountability and efficiency in dealings between the union, employees, and management, consistent with the direction set by the administration,” the spokesperson said. It also still includes workplace flexibility and options for union representation activities.
A Break From the Past?
Ariel Avgar, a labor law professor at Cornell University’s School of Industrial and Labor Relations, said the EPA’s actions strike him as “very much consistent” with three executive orders Trump issued in May 2018 that took aim at federal unions.
In Avgar’s view, those orders were an attempt to “limit the time that unions can use to organize at work, and limit their ability to bargain even more than it already is.”
Large portions of the executive orders were struck down by a federal district court in August 2018. But the U.S. Court of Appeals for the District of Columbia Circuit overturned that ruling July 16, saying the trial court didn’t have the authority to block the orders.
AFGE and the National Treasury Employees Union said in separate statements that they would appeal the D.C. Circuit ruling.
Former EPA managers say that, in previous administrations, they found the relationship between management and the various unions representing workers to be mutually respectful.
Joseph Goffman, associate assistant administrator for climate and senior counsel to the assistant administrator for air and radiation at the EPA under President Barack Obama, said managers during his tenure viewed the career employees as “an incredibly precious resource.”
By contrast, “there’s a lot of circumstantial evidence that the current political leadership, both inside the agency and in the White House, essentially views the workforce as a threat,” said Goffman, who now runs the Environmental and Energy Law Program at Harvard University. “What’s being relayed seems to be part of a pattern of really denigrating the workforce and finding ways to hobble it.”
“There were inevitably some tensions between management and employees in certain locations, but you could always develop a good relationship,” said Stan Meiburg, a longtime EPA manager who served as acting deputy administrator during part of the Obama administration. “We always respected the fact that unions had representational authority, and you needed to respect that. They were a clear stakeholder, and they needed to be at the table.”
—With assistance from Louis C. LaBrecque (Bloomberg Law).
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