REPORT
OF THE LEGISLATION, POLITICS & PRESERVATION OF WORK COMMITTEE TO THE
NATIONAL EXECUTIVE COUNCIL
JUNE
2008
The
Legislation, Politics, and Preservation of Work Committee met at 9 am on
Tuesday, June 3, 2008. In attendance
were Chair Joe Flynn (NVP-4),
FEDERAL
PAY
Federal
Pay Raise
The
President’s FY 2009 Budget recommended a 2.9% pay raise for civilian employees
and a 3.4% raise for military personnel effective January 2009.
The House and Senate Armed Services Committees both included a 3.9% pay
raise for military personnel in their versions of the FY 2009 defense
authorization bill.
AFGE
is advocating parity with military pay. The
Financial Services Appropriations Subcommittees will address the issue of the
civilian pay raise in their appropriations bills, expected to be marked up
sometime in June.
AFGE
is also advocating a continuation of the language included in recent years which
ensures that the pay raise is applied to blue collar employees, as well as to
all DHS civilians and to DoD civilians who are in bargaining units.
The Armed Services Committees are objecting to the continuation of the
language to DoD civilians, because it is in conflict with the NSPS revision last
year which only guarantees 60% of the nationwide raise and 100% of the locality
raise to all those under NSPS who rate above unacceptable.
Blue
Collar Pay
The
Federal Prevailing Rate Advisory Committee (FPRAC) which makes recommendations
involving the administration of the Federal Wage System (FWS), the pay system
that covers federal workers in the skilled trades, finally resumed operations
after an almost two year hiatus during which there was no chair.
The new FPRAC chair convened a working group that is considering a range
of possible FWS regulatory reforms, mostly focused on the drawing of wage area
boundaries. The proposals under
consideration are as follows:
The
most consequential of these changes was introduced by AFGE and would revise the
regulation so that one GS locality does not include more than one wage area.
Although a small minority of wage areas and GS locality areas would be
affected by this change, it would have a major impact on those it does affect.
Almost all affected employees would receive substantial wage increases as
a result of this change. A very
small number of lower graded positions might see a wage decline.
These wage cuts would affect starting wages for those hired subsequent to
the change, and would result in “wage retention” for those already working.
The latter group would receive only one half of the relevant annual pay
raise until their wages became aligned with the new schedules.
The
areas affected by the GS locality alignment proposal are as follows:
1.
Chambers,
Troup, Meriwether, Upson, Lamar, and Jasper counties in
2.
The
Narragansett (
3.
4.
5.
6.
7.
The
8.
The
9.
10.
Douglas
County, Nevada would be added to the
11.
The
12.
The
Washington-Baltimore area would be most affected.
Currently this GS locality includes counties in six different wage areas
(
Of
the 32 GS localities (including Rest of US), only 12 are affected, and of those
12, only five, Boston, Hartford, New York, Philadelphia, and
Washington-Baltimore; would have significant numbers of FWS workers affected.
OPM has estimated the cost of implementation of the AFGE proposal at $261
million over five years.
The
arguments in favor of this move are as follows:
For five years, the Congress has voted to provide a floor wage adjustment
to FWS workers equal to that provided to GS workers in each GS locality.
For example: At Tobyhanna
Army Depot, which is located in the Scranton, Pa. wage area and the New York GS
locality, both GS and FWS workers receive the New York City locality raise.
However, while GS workers at Tobyhanna receive the same base salaries as
GS workers in
This
disparity in treatment at worksites such as Tobyhanna creates a pervasive sense
of unfairness among the workforce. It
also leads to situations where a WG-10 journeyman electronics technician, with
decades of experience repairing and manufacturing sophisticated military
hardware earns the same or less than a GS-06 administrative employee.
While no one there begrudges the GS-06 his/her salary, the journeymen
electronics specialists feel grossly underpaid.
The message that the Congress has sent is that they want the workforces
to be treated similarly, and this revision to the regulation would accomplish
that goal by respecting the GS boundaries when defining wage areas.
The
existing wage area boundaries are all nearly 30 years old.
They reflect a time when it was believed that labor markets for blue
collar occupations were small, and that blue collar workers would not commute as
far as white collar workers for a particular job.
In there ensuing decades, as metropolitan areas on the East and
These
facts are reflected in the boundaries of the GS locality pay system, which began
in 1994 and which has updated the dimensions of its localities almost annually
ever since. The Federal Salary
Council each year examines census data on commuting, salary data, as well as the
locations of concentrations of federal employees when it considers whether the
boundaries of its localities are up to date.
It then makes recommendations to add counties to existing localities, add
localities, or delete localities based upon these data.
No similar accounting has been done on behalf of the FWS system in
decades. This change would allow the
FWS to take advantage of the research and data analysis performed by
professionals at the Office of Personnel Management (OPM), and the Department of
Labor (DoL) regarding what constitutes the “federal labor market” at the
same time as it allows members of single federal “workforce teams” to be
treated equitably.
Some
have complained that this change can only be justified if it is cost neutral or
if it is in response to a demonstrated problem with recruitment and retention of
FWS employees. The Prevailing Rate
System that is supposed to govern the FWS is not supposed to operate according
to those factors. Federal employees
– either in the FWS or the GS system are not supposed to receive pay
adjustments according to quit rates, or managers’ reports regarding ease of
recruitment. They are supposed to
receive base pay, and pay adjustments according to objective labor market data.
The changes being contemplated regard the definition of the relevant
“labor market.”
Non-Foreign
COLAs and Locality Pay
In
late May, Senator Akaka (D-Hawaii) distributed a draft of legislation that would
give federal employees who currently receive non-foreign COLAs the option to
switch gradually over to the GS locality pay system.
President Bush had included a proposal to shift non-foreign COLA
recipients into locality pay in his FY 2008 Budget proposal, and the draft
legislation that would have implemented his plan (which was never introduced)
was substantially less advantageous to federal employees than the Akaka draft
is. Senator Akaka’s legislation
proposes the following:
The
main benefit of switching from COLAs to locality pay is that locality pay counts
as base pay when a retirement annuity is calculated and COLA payments do not.
The main disadvantage of switching is that locality pay is taxable and
COLA payments are not. A secondary
disadvantage of the COLA payments is that many are set to decline over the next
several years, and the way OPM has calculated them has been highly controversial
and the subject of much litigation. The
Department of Labor has conducted preliminary surveys of the federal-non-federal
pay gaps in
There
are three protections missing from the Akaka draft that AFGE will ask the
Senator to add prior to formal introduction of the legislation.
The first is a guarantee that no federal employee in any non-foreign area
who chooses to participate will ever receive less than the RUS level of locality
pay. Second is an explicit
requirement that two new localities be added to the existing 32 FEPCA pay
localities that cover the entire states of
FEDERAL
EMPLOYEES HEALTH BENEFITS PROGRAM (FEHBP)
AFGE
has been working with the House Federal Workforce Subcommittee to address the
need for FEHBP coverage to be continued for the dependents of enrollees up to
age 25. AFGE testified on April 29th
in support of H.R. 5550, introduced by Chairman Danny Davis (D-IL) in April.
However, OPM will only accept this provision as an add-on to benefit to
plans, with the full cost to be borne by the enrollee. The Congressional Budget
Office is attempting to determine the cost of the increased benefit, which will
help determine the feasibility of moving the bill this year.
Currently
14 states have raised the age of dependents for family health insurance
coverage, and President Gage’s testimony pointed out that as an employer the
federal government could either further extend health insurance benefits to
worker’s families or lose good employees to private sector jobs that do.
AFGE supports H.R. 5550, which extends FEHB coverage for unmarried
dependents to age 25, but does not support a supposed “compromise” amendment
that would require OPM to make health insurance policies covering unmarried
dependents up to age 25 available for purchase.
Many federal workers would be unable to afford policies for which they
are responsible for 100% of the premiums, especially federal workers in lower
graded positions. The controversy
over such an amendment in part led to a delay in the mark-up of H.R. 5550 by the
Federal Workforce Subcommittee. The
mark-up of the bill has not been rescheduled.
TELEWORK/FLEXIPLACE
The
House Oversight and Government Reform Committee reported H.R. 4106, the Telework
Improvements Act of 2008, on March 13th.
The bill, which would allow federal workers to participate in telework
unless the agency can show that they should be ineligible, was introduced by
Representatives Danny Davis (D-IL), John Sarbanes (D-MD), Henry Waxman (D-CA),
Tom Davis (R-VA), Frank Wolf (R-VA), Elijah Cummings (D-MD) and Eleanor Holmes
Norton (D-DC). The legislation
defines telework and requires GAO to evaluate agency telework programs and to
track data such as the number of employees actually teleworking and the number
of employees teleworking for certain minimum amounts of time.
The bill sets a consistent standard for telework by providing that an
agency will only be considered to be in compliance with the bill’s
requirements if employees who are authorized to telework are permitted to do so
at least 20% of the hours worked in every two workweeks.
On June 3, 2008, the House passed the bill by a voice vote.
The Senate Homeland Security and Governmental Affairs Committee passed S.
1000, the Telework Enhancement Act of 2007, legislation similar to the House
bill on November 14, 2007.
Under current law, federal workers must overcome the
presumption that they are ineligible for telework and places unilateral
discretion in the hands of management. Both
H.R. 4106 and S.1000 require agencies to create the position of “Telework
Managing Officer” to report to Congress on the agency’s progress in meeting
a goal workers participating in telework at least 20% of their work hours over
two administrative work weeks, however neither bill includes an enforcement
mechanism.
DOMESTIC
PARTNERS
AFGE
has sent to Senator Joe Lieberman (I-CT) and Representative Tammy Baldwin
(D-WI), sponsors of the Domestic Partnership Benefits and Obligations Act of
2007, a letter of support for their legislation to provide federal employees
with same-sex domestic partners entitlement to the same employment benefits that
are available to married federal employees and their spouses. Federal employees
and their domestic partners will also be subject to the same employment-related
obligations that are imposed on married employees and their spouses.
In
order to obtain benefits and assume obligations, an employee must file an
affidavit of eligibility with the Office of Personnel Management (OPM). The
employee must certify that the employee and the employee’s same-sex domestic
partner have a common residence, share responsibility for each other’s welfare
and financial responsibilities, are not related by blood, and are living
together in a committed intimate relationship. They must also certify that, as
each other’s sole domestic partner, they intend to remain so indefinitely. If
a domestic partnership dissolves, whether by death of the domestic partner or
otherwise, the employee must file a statement of dissolution with OPM within 30
days.
Employees
and their domestic partners will have the same benefits as married employees and
their spouses under –
FEDERAL
RETIREMENT
In
March, AFGE responded to the Federal Retirement Thrift Investment Board’s
proposal to restrict participants in the Thrift Savings Plan to two interfund
transfers per calendar month, but continue to allow unlimited transfers into the
G Fund.
This
proposed restriction is in response to the finding that the “frequent
trading” activities of a small group of TSP participants has imposed
significant costs on the program and lowered overall rates of return to all of
the affected funds. Most of the
“frequent trading” has occurred in the I Fund (International Fund).
An analysis by the Federal Retirement Thrift Investment Board (FRTIB)
found that trading in the I fund in 2006 cost all
of the participants in the fund eight basis points (or .08% of the return they
would have received otherwise). To
put this into perspective, in 2006, the total expense ratio of the entire TSP
– all its overhead and administrative costs put together – cost only three
basis points.
It
is important to recognize that the financial impact of trades in the I Fund is
especially difficult to predict. This
is because the FRTIB tells the investment manager each day how much to trade in
each fund by 2:00 p.m. EST. The
investment manager prices all of the Funds at 4:00 p.m. EST each day.
But foreign markets are closed by the time that the I Fund’s orders are
received each day. Because the
trades are executed the next day, when foreign markets re-open, the prices might
be very different from what they were when the trade order was made.
But all differences in prices between when the trade was ordered and
when it was executed are charged to the whole I Fund, not to the individual
participants who bought and sold. This
is why the activities of a few are having a negative impact on the returns
experienced by the I Fund as a whole. Differences
in price between the time when an order is made and executed can affect any of
the Funds that hold equities, but the large time differences between the eastern
Another
source of cost for frequent trading has to do with the fact that stock and bond
trades settle three days after the trade date – that is when the money
actually changes hands. The way the
TSP is set up, however, allows TSP participants to credit proceeds from sales
the next day, and it is up to the investment manager to bridge the divide.
Again, the peculiarities of the I Fund make it more expensive to
accomplish this task than for the other Funds that trade in private equities.
In
response to the market-timing scandals among private mutual fund firms in 2002,
the Securities and Exchange Commission (SEC) allowed them to charge redemption
fees to customers when they could show that the fees were in the best overall
interest of a fund (as opposed to the best interests of individual fund
holders). This is analogous to the
situation in the TSP right now. When
the SEC wrote its rule in 2006, it said “Excessive trading in mutual funds
occurs at the expense of long-term investors, diluting the value of their
shares. It may disrupt the
management of a fund’s portfolio and raise the fund’s transaction costs
because the fund manager must either hold extra cash, or sell investments at
inopportune times to meet redemptions.” While
the TSP’s Funds are not mutual funds per
se, they resemble them in most respects.
The
SEC rule for mutual fund companies requires either a fee of up to 2% of the
value of shares redeemed, or a determination by the firm’s board of directors
that a fee is neither necessary nor appropriate.
In fact, since then, mutual fund companies have sharply reduced the
number of trades and exchanges allowed in defined contribution pension plans
(401 (K) plans like the TSP). For
example, Vanguard disallows a repurchase after a sale only after 60 days, Janus
allows four “round trips” per year, ING allows four trades per year, and
Federated allows two trades per month.
It
is in this context that the FRTIB wanted its proposal to limit interfund TSP
trades to two per month to be considered. After
receiving comments, the FRTIB implemented its original proposal.
An excerpt of AFGE’s comments is below:
We
do not question the FRTIB’s contention that the frequent trading activity of a
small minority of the TSP population, especially in and out of the I Fund,
imposes large costs upon the system as a whole.
We recognize that the policy of allowing unlimited numbers of free trades
is not the practice of any large mutual fund company or defined-contribution
retirement plan in either the public or private sector.
Further, we understand that the process of effecting international sales
and purchases of fund shares sometimes takes days, and that when frequent
traders exploit this fact, they sometimes do so at a cost to their fellow I fund
shareholders who realize a lower rate of return than they would in the absence
of frequent trading.
We
believe that the FRTIB’s proposal is unnecessarily restrictive with respect to
the problems it seeks to address and the costs it seeks to minimize.
We believe that a more reasonable change would be to restrict TSP
participants to four free interfund trades per calendar month, with unlimited
interfund trades into the G-Fund. In
addition, we believe that the FTRIB should follow the practice of many private
financial services and mutual fund companies, and rather than disallow more than
two interfund transfers per month, charge traders a fee of two percent of the
value of the trade for all interfund trades that exceed this number.
We have considered the FRTIB’s claim that it would be too cumbersome
and costly to track trading activities and assess this fee, but we believe the
trade-off is worthwhile. Numerous
AFGE members have expressed their support for charging the full cost of
excessive interfund transfers to individual traders.
We believe that not only will this serve as a disincentive to imprudent,
high-risk behavior, it will either minimize or even eliminate the adverse impact
of frequent trading on those who refrain from the practice.
Sick
Leave Credit for FERS Employees
In March, Representative Jim Moran (D-VA) introduced
H.R. 5573, to
provide federal employees retiring under FERS with a lump-sum payment of 15% of
the amount of their accumulated sick leave exceeding 500 hours, except that no
payment could exceed $10,000. AFGE
has urged Rep. Moran to improve the amount of the payment.
The bill is pending in the Subcommittee on Federal Workforce.
Thrift
Savings Plan – Proposed Legislative Changes
The
Chairman of the House Committee on Oversight and Government Reform, Henry Waxman
(D-Ca.), Chairman of the Subcommittee on the Federal Workforce, Rep. Danny Davis
(D-IL), and the Committee’s Ranking Minority Member, Rep. Tom Davis (R-VA.)
have distributed a “Discussion Draft” of legislation that would make the
following changes in the Thrift Savings Plan:
Automatic
enrollment is advantageous for federal employees because it guarantees that no
one will forfeit the one percent of salary that agencies are required to provide
to all FERS employees with a TSP account. The
draft legislation, however, would require employees to contribute “not less
than 2 percent nor more than 5 percent” to the accounts automatically
established on their behalf, thus allowing them to take advantage of the
dollar-for-dollar match of the second 2 percent of income and the $.50 per
dollar match for the next 2 percent. Using
a life-cycle fund for the default investments under this proposal for automatic
enrollment may be unwise, since stock market fluctuation could actually cause
the employee to lose money (his or her own as well as the government’s
automatic 1 percent and matching funds) and the current default is guaranteed
against actual loss.
Asking
the FRTIB to add a Roth plan to the TSP is a relatively new idea.
The contributions and profits on amounts in a TSP account are not taxed
until they are withdrawn, usually after an employee retires.
In contrast, deposits into Roth accounts are from taxable income, but
these amounts and their profits are not taxed when they are withdrawn.
When the Employee Thrift Advisory Council (ETAC) has discussed Roth IRA
options for the TSP in the past, the FRTIB expressed unease over the
administrative costs of setting up the new accounts and educating participants
of their risks and benefits. This
aspect of the proposed legislation may be costly, and the main question that
AFGE will have to consider is whether our members would take advantage of this
option. Whether or not a Roth
account makes financial sense depends on an employee’s ability to guess
whether his/her tax rate will be higher or lower in retirement.
If the employee has good reason to believe that s/he will be in a higher
tax rate after retirement than before (because of future tax rate increases, or
the receipt of an inheritance, for example), the Roth option makes sense.
For employees whose incomes decline after retirement, the Roth option
would not be as advantageous.
The
proposal to allow the FRTIB to take over from Congress authority to decide
whether to include additional investment options into TSP would not be
advantageous to AFGE, because the FRTIB is entirely unaccountable to us. Although
we have a seat on the ETAC, the history of the TSP and the FRTIB is that they
have not responded to concerns AFGE has brought to their attention, such as
their decision to privatize TSP administrative functions without giving the
federal employees who performed that work an opportunity to compete in defense
of their jobs.
PRIVATIZATION
1.
New agency-specific privatization efforts: NIH,
DHS, DoI, DoD (HPO's, A-76 limitation, direct conversion)
2.
Old agency-specific privatization efforts: DoL,
CoE
3.
Government-wide privatization efforts: Financial
Services (HPO's, contractor inventory, insourcing policy, direct conversion)
AFGE
is attempting to preserve the agency-wide A-76 prohibitions already in place for
the Department of Labor (DoL), the Corps of Engineers (CoE), and Defense
Commissary Agency (DeCA). The future of the DoL prohibition likely depends
on what the Government Accountability Office says in its forthcoming report
about how effectively the A-76 process has been used by the department.
The CoE is attempting to secure an exception to the prohibition against
implementation of an A-76 study or a High Performing Organization (HPO) to allow
for the implementation of an HPO for locks and dams operations and maintenance,
district office, and repair fleet personnel, involving 3,500 employees.
AFGE is attempting to prevent the CoE from being given this exception.
The House Defense Authorization Bill includes a five-year extension of the
moratorium on using the A-76 circular in DeCA because of imminent internal
restructuring. Despite repeated AFGE requests, the Senate Armed Services
Committee included no extension in its bill. Consequently, this matter
will be resolved in the House-Senate conference over the Defense Authorization
Bill. It is believed that the A-76 prohibitions in the Forest Service and
Bureau of Prisons will be retained. It is also believed that the A-76
prohibitions for certain functions in the Department of Agriculture and
Department of Homeland Security (DHS) will be retained. In fact, the
Agriculture provision was included in the Farm Bill, making it
"permanent" law, thanks to the hard work of the
AFGE
is attempting to expand agency-wide prohibitions on new A-76 activity to
include the following agencies: the National Institutes of Health (NIH), the
Department of Homeland Security, the Department of Interior (DoI), and the
Department of Defense (DoD) AFGE's proposals for NIH, DHS, and DoI are
being considered by the House and Senate Chairs of the Labor-HHS-Education,
Homeland Security, and Interior Appropriations Subcommittees, respectively.
We have met several times with staff and, in several instances, the chairs
themselves. The merits of our proposals are conceded; the only concern is
whether the inclusion of additional anti-privatization provisions might cause
the funding measures to be vetoed. For DoD, the House Defense
Authorization Bill included a three-year suspension on new A-76 activity as well
as a limitation on the length of A-76 competitions of 18 months from the
beginning of preliminary planning to the performance decision; and both
provisions were singled out by the White House as sufficient to provoke a veto
of the entire Defense Authorization Bill.
AFGE
is working with Senator Kennedy and Mikulski to offer an amendment to include an
A-76 suspension in the Senate version of the defense legislation. It is
likely that their amendment will be voted on sometime in June. The House
Defense Authorization Bill includes, and the Kennedy-Mikulski Amendment is
likely to include, a framework for High Performing Organizations (HPO's), the
Office of Management and Budget's alternative to the A-76 process. This
framework includes reporting requirements and prohibitions against using HPO's
to bust unions, preclude impact and implementation bargaining, and downsize on
the basis of unrelated savings assumptions. The Kennedy-Mikulski Amendment
may also include language that would eliminate the loophole that allows
functions performed by ten or fewer employees to be contracted out without
competition as well as the practice of contracting out by attrition (i.e.,
contracting out work when positions become vacant because the employees retire,
resign, are promoted, etc.).
AFGE
is also working with the Chairs of the Financial Services Appropriations
Subcommittees to make government-wide reforms to the privatization process.
Among our proposals: 1) impose a one-year A-76 prohibition because of OMB's
refusal to abide by a provision included in last year's funding measure to
forbid OMB from telling agencies to conduct A-76 competitions; 2) close the
competition requirement loophole for smaller functions and prevent contracting
out by attrition; 3) expand certain DoD-specific provisions from last year so
that all agencies can benefit, including the establishment of contractor
inventories and insourcing policies; and 4) establish a framework for ensuring
the legality and appropriateness of High Performing Orgnizations.
H.R.
3212, the TSO rights bill introduced almost one year ago by Rep. Nita Lowey
(D-NY), currently has 35 cosponsors, largely due to the grassroots lobbying of
AFGE’s TSO members. AFGE’s
current goal is to achieve enough cosponsors to bolster the bill’s chances for
a floor vote before Congress adjourns. To
that end the Legislative department is working with M&O to initiate a goal
of 75 cosponsors in 75 days, or the 75 in 75 campaign, during June, July and
August. The goal of the campaign is
to engage TSOs in lobbying House members in the vicinity of their airports to
cosponsor H.R. 3212. Both Democratic
and Republican members are targeted so that in case we are unable to receive a
vote on the House floor TSOs will have an idea of which members supported their
cause and which did not. This is
also an opportunity for newly formed locals to become familiar with staff at
Congressional district offices, and lobbying.
The
Senate Homeland Security and Governmental Affairs Committee (HSGAC) staff have
stated that the Senate will initiate a DHS Authorization bill that will be sent
to the House for passage. AFGE is
working with HSGAC staff to ensure that provisions granting TSO collective
bargaining rights and workplace protections and repealing what is left of MaxHR
are included in the bill that is reported out of the committee.
In addition, AFGE is working with Chairman Lieberman’s staff to draft
TSO rights legislation that would ensure immediate implementation of collective
bargaining rights and workplace protections upon enactment and require that TSOs
be compensated under the GS system.
The
President‘s FY 2009 budget proposal for DHS included a provision that would
make the annual federal pay increase discretionary for TSOs and would thus grant
the TSA administrator specific authority to decrease or deny the annual
increase. The PASS
pay-for-performance system does not have a dedicated funding stream outside of
the agency’s general funding for wages. Last
year TSA actually lowered the bonuses and raises for its pay-for-performance
levels from the previous year in an effort to provide raises and bonuses for
more TSOs without any additional funding to do so.
Both Senate and House Chairmen Lieberman and Thompson have strongly
stated their opposition to any provision that would result in TSOs not receiving
the same annual increase as the rest of the civilian federal workforce.
AFGE is lobbying the Appropriations Committees not to include the
President’s requested provision in any Homeland Security Appropriations bill.
FEDERAL
EMPLOYEE PAID PARENTAL LEAVE
The
Federal Employee Paid Parental Leave Act (H.R. 5781), introduced by Rep Carolyn
Maloney (D-NY), was reported out of the Oversight and Government Reform
Committee in late April on a party-line vote.
As introduced, H.R. 5781 would provide federal employees 8 weeks of paid
parental leave upon the birth or adoption of a child.
However, during the bill’s April mark-up, an amendment introduced by
Oversight and Government Reform Committee Chairman Waxman (D-CA) was adopted
cutting the amount of paid leave available to federal workers from 8 to 4 weeks.
The primary opposition to the bill focuses on the cost of paying workers who are
not on the job. VA Council Executive
Vice President Mary Jean Burke testified on behalf of AFGE in support of the
bill on March 6, noting that opponents of the bill were not weighing the cost of
losing experienced, dedicated federal workers who leave the federal government
due to the need to care for a new family member.
The bill covers workers at federal agencies and Congressional employees.
In its current version the bill does not cover workers who do not have
the same FMLA rights as other federal workers, such as Postal workers, FAA
employees and TSOs. AFGE is
currently working on a possible amendment to H.R. 5781 that would either grant
TSOs FMLA rights or provide them with the right to take leave for family or
medical purposes under Title 5. Although
even 4 weeks of paid new parental leave is a significant improvement for federal
workers, AFGE hopes to restore the paid leave to 8 weeks through a House floor
amendment or in the Senate version.
TEMPORARILY
REEMPLOYED FEDERAL ANNUITANTS
The
Bush Administration has seized upon projections of widespread federal
retirements to move H.R. 3579, a bill that creates a government-wide program
allowing federal agencies to rehire federal annuitants on a long-term temporary
basis. The bill would eliminate the
current requirement that agencies seek a waiver from OPM in order to rehire
retired workers despite the fact that OPM cannot cite an instance of ever
actually refusing to grant an agency a requested waiver.
The purpose of the waivers is to allow federal annuitants to receive dual
compensation from both a salary and their pension because of a worker or skill
shortage. However, agencies would
not have to pay for the benefits of reemployed annuitants thus making them
cheaper to employ than active federal workers.
In addition, the bill provides a disincentive for agencies to engage in
the type of planning and training of incumbent workers necessary to meet
projected skill needs. Current DoD
authority to hire annuitants has resulted in concern by active federal workers
that the program has been used to foster cronyism and stymie their ability to be
promoted. During a recent hearing on
the bill, federal worker unions voiced opposition to the bill, while OPM and the
National Association of Active and Retired Federal Employees offered strong
support for the bill. There is a
companion bill in the Senate (S. 2003), however majority Homeland Security and
Governmental Affairs Committee staff have shown great reluctance to move the
bill in light of union opposition.
WHISTLEBLOWER
PROTECTIONS
Although both the House and Senate passed bills that
drastically reform whistleblower reform protections for federal workers and
contractors last year, the bills remain mired in a very slow moving informal
conference to reconcile their differences. The
Federal Employee Protection of Disclosures Act (H.R. 985) includes many reforms
of great importance to federal workers, including extension of enforceable
whistleblower prohibited personnel practices protections to TSOs along with the
right to a jury trial. The Senate
bill (S. 297) offers protections to federal workers who lose their security
clearances due to their whistleblower activities and allows federal workers
increased ability to disclose classified information of Members of Congress.
The first week of May marked the second World Whistleblower Week, where
representatives of over 35 groups lobbied House and Senate conferees to send a
conference report to the President this year.
VETERANS
ADMINISTRATION
VA
Health Care Funding
AFGE
continues to support the veterans’ service organizations (VSOs) in their
efforts to address serious flaws in the funding process for VA health care.
Although FY 2008 funding for the VA (for health care, benefit claims
processing staff and other needs) was, for the first time, aligned with the
recommendations of the VSO’s Independent Budget, the process is still plagued
by politics and delay. For the 13th time in 14 years, the VA had to
operate on a continuing resolution until it received its permanent FY 08
funding. The VA Secretary further delayed new funds through a political ploy
involving the requirement that funds be released only after he declared an
emergency.
AFGE
has publicly supported pending House and Senate bills calling for assured, or
mandatory funding of VA health care, to replace the current system of funding VA
health care through discretionary dollars. However, we are refining our message
in close collaboration with the VSOs who indicate the conversion to full
mandatory funding is highly unlikely in the current environment.
Therefore, they are asking Congress to consider alternative funding
approaches that also increase predictability and adequacy, for example, one year
in advance of appropriations. In
recent testimony, AFGE urged Congress to consider such alternatives.
Bargaining
Rights for Pure Title 38 Employees
AFGE
is building support for House and Senate bills to amend Section 7422 of Title 38
in order to restore the collective bargaining rights of pure Title 38 employees:
registered nurses, physicians, physician assistants, podiatrists, optometrists,
chiropractors, dentists and expanded dental auxiliaries.
The erosion of these rights by VA management over the past seven years is
perhaps the most critical problem facing these providers today.
VA’s current interpretation of the law undercuts all other legislation
aimed at improving pay, schedules and other work matters.
VA is blocking virtually every grievance brought by these providers based
on an overly broad interpretation of three limited exceptions in the law: direct
patient care and clinical competence, peer review and compensation.
AFGE
is working closely with other VA unions to pass legislation to eliminate this
harmful loophole. In addition, we sent every member of Congress a letter of
support from 14 unions. We have also
built support among the veterans’ community. We achieved a significant
milestone when three veterans’ organizations testified in support of 7422
reform legislation at a recent Senate hearing.
To
date, we have 23 sponsors on the House bill and 4 sponsors on the Senate
companion bill. We testified at two
hearings in May and will submit testimony at a House legislative hearing June 5th,
where House VA Chairman Filner will testify as a witness in support of this
legislation.
We
anticipate a major counteroffensive by the VA, more specifically VA’s Chief
Nurse and the VA nurse manager association, NOVA.
We got a preview of their arguments against 7422 reform in recent VA and
NOVA testimony. We are working with the Office of General Counsel to ensure
solid responses to their likely assertions that reform will undermine all Title
38 and Title 5 management rights. We
will also share our analysis with Chairman Filner’s Committee staff in advance
of the upcoming legislative hearing. He
has made a very strong commitment to AFGE to pursue 7422 reform.
Delays
in Hybrid Title 38 Boarding Process
The
hybrid process is facing growing delays in appointments and promotions of hybrid
Title 38 employees, particularly new mental health clinicians who are
(psychologists and social workers) being hired in large numbers.
Despite extreme backlogs, the VA is seeking legislation to expand the
Secretary’s Title 38 authority. Pending
nurse bills, S. 2969 and H.R. 6153, include provisions to significantly increase
this authority (other provisions discussed below).
We have expressed our strong opposition to the provision in this bill to
expand Title 38 authority, to convert thousands of nursing assistants from Title
5 to hybrid Title 38 status and allow the VA to convert other positions at its
discretion.
AFGE
has recommended to the House and Senate that this process be suspended, pending
completion of a pilot project using a streamlined Title 5 hiring process.
Our lobbying efforts will require extension education on differences
between Title 38 and Title 5, including weaker veterans’ preference rights
under Title 38, and further development of the streamlined Title 5 concept,
which is also being considered by a Senate committee addressing federal
employee-wide issues.
Pending
Health Care Recruitment and Retention Legislation
AFGE
recently testified twice before the Senate VA Committee regarding S.2969, a
nurse recruitment and retention bill introduced by Chairman Akaka. AFGE had
extensive input into the drafting process. AFGE supports provisions to allow
part-time nurses to earn permanent status, more consistent rules about overtime
and shift differential pay, better pay for LPNs and CRNAs, enhanced educational
loan assistance for new nurses and VA employees training to become RNs, more
transparency in the nurse locality pay process, and stronger protections against
excessive mandatory nurse overtime.
In
a recent House hearing on health care human resource issues, AFGE addressed two
recruitment and retention problems that also need Congressional oversight and/
or legislative action.
First,
VA medical centers are not offering any alternative schedules for RNs (defined
as full-time pay for three 12 hour days) even though Congress authorized AWS in
2004 legislation. AWS is very
popular in the private sector.
Second,
numerous problems surrounding the implementation of the 2004 physician pay bill
persist, including;
In
addition, the VA has not complied with reporting requirements to inform Congress
on whether its physician pay policies are helping recruitment and retention, and
reducing its reliance on contract care to fill the gap. Rather, the VA is expanding
its use of contract care through Project HERO which is being piloted in 4 VISNs
with virtually no Congressional oversight.
AFGE
has also publicly supported legislation to increase the voice of physician
assistants in VA central office, which was promoted by a number of VSOs.
This bill was recently passed by the full House and is headed for a
Senate vote.
Pending
Proposals for Reform of VBA Disability Claims Process
The
House VA Committee recently approved the Veterans Disability Claims
Modernization Act of 2008, a comprehensive bill to reform the VBA disability
claims process and address a backlog of 650,000 claims.
AFGE worked very closely with Committee staff during the drafting stage
and we are pleased that the bill addresses many of our concerns about training,
certification and the employee work credit system.
The
progress of this positive piece of VBA legislation is especially significant in
the context of other pending legislation to radically overhaul the VBA benefits
scheme, including bills sponsored by Senate VA Committee Ranking Member Burr and
House VA Committee Ranking Member Buyer to create a two-tier system that
provides “quality of life” payments to new veterans and weaker rights to
benefits in the long term.
Veterans’
Employment
VA
continues to be one of the worst offenders of the ban against “direct
conversion,” i.e., contracting out federal work without conducting the
required public-private competition. The
vast majority of this work if performed by VA employees with veterans’ status.
We
regularly receive reports of outsourcing of wage grade and other positions in
the Veterans Health Administration and National Cemetery Administration, and a
number of these have resulted in the filing of appeals to GAO using new appeals
rights won by AFGE at the end of 2007. In
several cases, management voluntarily dropped its plans to outsource once it
became clear that we were pursuing a legal appeal.
The
Undersecretary of the National Cemetery Administration has repeatedly assured us
that he wants to hire veterans in-house rather than contract out when he can
find applicants. We were very pleased when a cemetery in the
The
USH was receptive to our suggestion that he work with AFGE and VSOs to help
identify applicants for VA employment at the cemeteries. We
alerted Congressman Phil Hare (D-IL) of this after his statement at a recent
hearing encouraging the VA to collaborate with VSOs to attract applicants for
health care jobs.
In
cases where a GAO appeal is not possible or was unsuccessful, we are assisting
locals in getting the attention of lawmakers, e.g. West LA and
Contract
Care
The
VA already has authority to use contract medical care in limited circumstances.
However, as a result of this Administration’s outsourcing agenda and an
unprecedented demand for VA health care, especially in rural areas and for
urgent and severe problems such as PTSD and suicidal tendencies, it is becoming
more difficult to articulate the proper balance between in-house care and
contract care. AFGE is speaking with
lawmakers about distinguishing between necessary, appropriate contract
arrangements and those that will hurt veterans in the short term through less
access and quality and in the long term through dismantling of the VA system.
Project
HERO, a contract care arrangement that the VA is implementing without statutory
authority, oversight or separate appropriations, is underway in 23 states. It is
furthest along in VISN 23 (
AFGE
also has provided support for legislation to limit the use of non-VA mental
health care, and rather, expand, in-house capacity.
Another
threat – merged medical facilities – has reappeared. Several years ago, we
helped fight back against an attempt to co-locate a VA medical center in
BUREAU
OF PRISONS (BOP)
FY
2008 Supplemental Appropriations
After
months of intense lobbying by AFGE and the AFGE Council of Prison Locals, the
House and Senate have included an additional $178 million in FY 2008 funding for
the BOP Salaries and Expenses account in their respective FY 2008
Iraq/Afghanistan wars supplemental appropriations bills (H.R. 2642).
This
additional funding is urgently needed by BOP to avoid having to dismiss 2,500
correctional officers and staff. Such
a substantial reduction would exacerbate the already existing BOP understaffing
problem. The current 86.6% staffing level (or 34,098 filled positions) is well
below the 90% staffing level (or 35,444 filled positions) that BOP considers to
be the point where the safety and security of staff and inmates could be in
jeopardy.
The
House on May 15 voted 256-166 for the domestic funding amendment to its FY 2008
war supplemental appropriations bill that included the urgently needed $178
million in FY 2008 funding for BOP. The Senate followed suit on May 22, voting
75-22 to add a domestic funding package to its FY 2008 war supplemental
appropriations measure that included the necessary $178 million for BOP.
The
Senate-passed FY 2008 war supplemental appropriations bill will be sent to the
House for final approval after Congress’s Memorial Day recess. The bill,
however, is likely to face challenges in the House over the withdrawal of troops
from
Federal
Prison Industries (FPI)
Section
827, the anti-FPI provision in the Senate-passed version of the National Defense
Authorization Act (H.R. 1585), made it into the bill’s final version as signed
into law by President Bush on January 28, 2008 (P.L. 110-477).
This despite the active lobbying against Section 827 by AFGE and the
Council of Prison Locals (CPL), and the strong opposition to Section 827 by two
defense authorization conferees: Senator Jeff Sessions (R-AL) and Rep. John
Conyers (D-MI), the chairman of the House Judiciary Committee.
AFGE
and CPL strongly opposed Section 827, a provision inserted into H.R. 1585 by
Senate Armed Services Committee Chairman Carl Levin (D-MI), because it will
significantly reduce the application of the FPI mandatory source preference with
regard to the Department of Defense’s purchase of FPI-made products.
This reduction will necessarily result in a substantial decrease in the
number of FPI prison inmate jobs - thereby increasing
inmate idleness and the associated risk of inmate assaults on federal
correctional officers.
AFGE
is continuing to actively work against Section 827:
·
On
May 6, National President John Gage presented a forceful, well-received critique
of Section 827 when the House Judiciary Subcommittee on Crime, Terrorism, and
Homeland Security held a hearing on “Federal Prison Industries – Examining
the Effects of Section 827 of the National Defense Authorization Act of 2008.”
·
AFGE
is currently working with its pro-FPI allies, including the National
Correctional Industries Association, to include language in the FY 2009 defense
appropriations bill that precludes any appropriated funding from being used to
implement Section 827.
BUREAU
OF PRISONS (BOP) AND DEPARTMENT OF DEFENSE (DOD) – OVERTIME COMPENSATION FOR
NURSES
AFGE
has begun lobbying Capitol Hill to make changes to existing federal law so that
nurses employed by BOP and DOD can obtain overtime compensation. This work began
after the AFGE General Counsel Office (GCO) determined that they could not
successfully litigate this matter due to existing federal statutory and
regulatory roadblocks.
According
to GCO’s analysis, three legal issues needed to be addressed for determining
whether litigation was a viable option to obtain overtime for these nurses:
1.
Whether BOP nurses meet the qualifications for the professional
exemption under the Fair Labor Standards Act (FLSA), and therefore would be
exempt from overtime compensation coverage. - GCO determined that BOP nurses
meet the duties requirement for the learned professional exemption because their
primary duty involves “the performance of work requiring advance knowledge in
a field of science or learning customarily acquired by a prolonged course of
specialized intellectual instruction.”
2.
Whether BOP nurses can be deemed FLSA nonexempt because they are
hourly rather than salaried workers, which is the reason private sector nurses
are often classified as being FLSA nonexempt (and therefore are eligible for
overtime compensation). - GCO determined that, given the recent Billings
v. U.S. decision, they cannot successfully argue that BOP nurses should be
classified as FLSA nonexempt because there are hourly employees.
“The
federal employees can be considered to be covered by the
FLSA because they
qualify as hourly employees under DOL
Regulations. The court concluded that they do not. The Federal
Circuit ruled that OPM’s failure to include a salary basis test for
FLSA exemptions in its regulations was justified by the fact that
The disciplinary system for federal employees is dictated by
statute – Title 5 of the U.S. Code – rather than as a matter of
employer discretion, as is the case in the private sector. The court
concluded that these differences between the private and federal
sectors meant that the salary basis test did not need to be applied
to federal employees.”
3.
Whether the fact that BOP nurses perform correctional officer duties
in addition to their nursing duties provides a basis for claiming that they are
FLSA nonexempt (and therefore eligible for overtime compensation). – GCO
determined BOP nurses remain FLSA exempt employees even if they perform some of
the duties of a correctional officer because: (a) BOP nurses’ primary duty is
“to perform the health care duties only a registered nurse can provide,” and
(b) their responsibility for maintaining security at BOP facilities is “in
addition to regular duties.”
CENSUS BUREAU
After
weeks of lobbying by AFGE, the House and Senate have included an additional $210
million in FY 2008 funding for the Bureau of Census to address 2010 Decennial
Census problems their respective FY 2008 Iraq/Afghanistan wars supplemental
appropriations bills (H.R. 2642).
The
Census Bureau last March notified Congress that the agency intends to drop the
planned use of handheld computers (HHCs) during the nonresponse follow-up phase
of the 2010 Decennial Census and revert back to a paper-based canvass operation.
The primary reason for this planned redesign is that the contractor-developed
HHCs continue to exhibit serious operational malfunctions. The additional $210
million in FY 2008 funding is needed to help the Census Bureau ramp up new
operational systems to accommodate the paper-based canvass, including new forms,
instructions and training materials, and additional personnel to service help
desks and data centers.
The
House on May 15 voted 256-166 for the domestic funding amendment to its FY 2008
war supplemental appropriations bill that included the needed $210 million in FY
2008 funding for the Census Bureau. The Senate followed suit on May 22, voting
75-22 to add a domestic funding package to its FY 2008 war supplemental
appropriations measure that included the necessary $210 million for the Census
Bureau.
The
Senate-passed FY 2008 war supplemental appropriations bill will be sent to the
House for final approval after Congress’s Memorial Day recess. The bill,
however, is likely to face challenges in the House over the withdrawal of troops
from
DEPARTMENT OF AGRICULTURE (USDA)
– 2008 FARM BILL
The House and Senate
both voted during the week of May 19 to override President Bush’s veto of the
2008 Farm Bill, which includes the new AFGE-supported federal-state inspection
program for certain small meat and poultry plants that want to sell in
interstate commerce. (The House override vote was 316-108; the Senate vote was
82-13.)
But when Senators
return from the Memorial Day recess, they will take up the 2008 Farm Bill again
- except this time they will try to make sure a complete 15-title version is
sent to the president. Apparently, the House enrollment clerk accidently dropped
one of the original bill’s 15 titles before sending it on May 15 to President
Bush for his consideration and veto.
The House voted
306-110 to “re-pass” the original 15-title Farm Bill on May 22.
As
may be remembered, AFGE, Consumer Federation of America (CFA), and Food &
Water Watch (FWW) announced on October 23 that we had reached an agreement with
the National Association of State Departments of Agriculture (NASDA) and the
National Farmers Union (NFU) on compromise legislation to establish a new hybrid
federal-state inspection program for certain small meat and poultry plants that
want to sell in interstate commerce. The compromise legislation was the result
of extensive negotiations between AFGE, the food safety groups, and the farm
groups.
AFGE, CFA, and FWW had been actively lobbying members of the Senate Agriculture Committee since July 27, the day the full House approved a 2007 Farm Bill that included provisions to allow state-inspected meat and poultry products to be sold in interstate commerce. These provisions, which we