A Quiet Win at the U.S. Department of Education

Education Secretary Betsy DeVos testifies on Capitol Hill, June 6, 2017. (Aaron P. Bernstein/Reuters)
Betsy DeVos has lately taken a lot of heat in the press, but she deserves credit for successfully standing up to her department’s powerful employee union.

It’s been a tough stretch for Secretary of Education Betsy DeVos. DeVos looked overmatched in a big 60 Minutes interview just when memories of her abysmal confirmation hearing were fading. She was rebuffed by a Republican Congress in the new federal budget, and she has struggled to make her case in heated debates over student discipline and school safety. The ensuing cascade of negative coverage has been unfortunate, not least because it obscures some of the quieter things that have gone right on DeVos’s watch.

In a noteworthy development, DeVos’s team this month radically revamped the collective-bargaining agreement (CBA) that governs the 3,900 employees at the U.S. Department of Education. The new CBA, between the department and Council 252 of the American Federation of Government Employees (AFGE), includes big changes from the 2013 agreement negotiated under the Obama administration.

The new agreement doesn’t address compensation or benefits, of course, since those are governed by federal law, but it does include a raft of sensible, taxpayer-friendly changes.

The new CBA eliminates the set-aside of “official time” for union business. Under the old agreement, designated union representatives were free to work on union business during normal, government hours — all on the taxpayers’ dime. The old CBA stipulated that “no fewer than 75” (!) union stewards across the country could work up to 40 hours a year on “official time,” while another three union officers would devote 100 percent of their time to union business. Henceforth, union business will be done on union time, rather than on the taxpayers’.

Under the old agreement, department employees were given only a solitary 48-hour window each year in which they could opt out of union membership; miss that, and they were automatically enrolled. Henceforth, employees who wish to be in the union each year will be free to do so, and they will have an extended period in which to enroll — but they will have to actively choose to join.

The new agreement doesn’t address compensation or benefits, of course, since those are governed by federal law, but it does include a raft of sensible, taxpayer-friendly changes.

The revamped accord also removes the requirements for “pre-decisional consultation.” Under the previous CBA, the department was required to consult the union before every agency-wide decision that could be construed as affecting the work of employees (such as transferring employees from one office to another, or even shifting employees from one project to another within the same office). Now, the department needs only notify the union of such decisions.

Under the new CBA, the union will be charged “fair-market rent” for the use of government office space and federally furnished equipment to conduct union business. Under the Obama-era accord, taxpayers were required to provide space and equipment to the union free of charge.

More generally, the new agreement removes a number of provisions that added burdensome procedural directives above and beyond statutory requirements when it came to things such as telework and grievance procedures.

Now, the story isn’t yet finished. AFGE Council 252 has filed a complaint with the Federal Labor Relations Authority (FLRA), alleging that the department improperly moved to unilaterally impose the new CBA. However, a senior Department of Education official familiar with the negotiations dismisses the claim as unfounded.

The senior official explains that the Education Department was able to adopt the new agreement because the union has consistently refused to sit down at the negotiating table, forfeiting its standing under federal law. In October 2016, while President Obama was still in office, the department’s labor-relations team gave formal notice that it wished to negotiate a new CBA. From that time to December 2017 — when the previous CBA technically expired — the process went nowhere as the union was unable or unwilling to agree on ground rules for the negotiation.

In February 2018, the department offered to negotiate its proposed new CBA; the union refused, insisting it preferred to continue haggling over ground rules. Consequently, on March 9, 2018, the department informed AFGE Council 252 that — in accord with federal law — since the old agreement had expired, they’d be implementing the new CBA starting March 12.

For all the union caterwauling — the AFGE has denounced the new CBA “an illegal management edict” — the department appears to be on solid ground. According to the Federal Employment Law Training Group (FELTG), which trains both agency and union practitioners, this scenario represents “the Civil Service Reform Act playing out just the way it was written back in 1978.” As FELT puts it:

  1. Management notifies the Union of an intended change to employee working conditions.
  2. Upon demand by the Union, Management enters into bargaining regarding those parts of the change that are negotiable.
  3. If Management and the Union cannot reach agreement (i.e., reach an impasse), Management notifies the Union of its final offer.
  4. If the Union does not respond by initiating the impasse resolution procedures provided for by law, Management has the right to implement the change without further bargaining.

Indeed, the FLRA has ruled previously that, when a union refuses to negotiate in a timely fashion following an agency notice, the agency is free to implement policy changes.

Time will tell how things play out before the FLRA. But, with talk of teacher strikes cropping up across the land, it’s a propitious moment to distinguish between better pay for professionals and contractual perks that serve neither practitioners nor taxpayers. On this count, DeVos’s team has taken a meaningful step in the service of responsible management — one deserving of an extended look from the nation’s educational leaders.

— Frederick M. Hess is the director of education policy-studies at the American Enterprise Institute. Grant Addison is a program manager for education policy at AEI.


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