Recent NTEU Activities and Upcoming Events

On March 26, 2002, NTEU 280 and AFGE 3331, will hold a joint officers meeting at which a representative from the U.S. Office of Special Counsel will be the keynote speaker.  The meeting is one in a series that will explore various avenues for redressing union members’ complaints regarding alleged discrimination, retaliation, reprisals, and prohibited personnel practices of EPA, its managers and high government officials.  The keynote speaker will discuss the role, jurisdiction, and responsibilities of the Office of Special Counsel, including filing complaints regarding prohibited personnel practices. 

Unlike other venues, such as filing a grievance with the Agency or filing a civil rights complaint, the Office of Special Counsel is empowered to seek disciplinary relief against managers and others government officials responsible for prohibited personnel practices.  NTEU and AFGE members are welcomed to attend the OSC presentation, which will take place at 1:30 PM in Ariel Rios South Building, in NETI room 6045.  If you plan to attend, please e-mail Dwight Welch, NTEU 280 Executive Vice-President, before March 21, 2002.

Starting in March, NTEU will post on its web site (www.nteu280.org), monetary awards received by EPA employees.  According to an Office of General Counsel response to NTEU, such information is not protected by the Privacy Act and may not be withheld by the Agency under the Freedom of Information Act.  First AAship to be posted will be the Office of Research and Development.

Chapter 280 is looking for a new Legislative Coordinator, preferably a Triple-A person, willing to go Any where at Any time to do Any thing to support the Union's legislative goals.  Those interested, should call James Murphy at (202) 260-2987.

Please report to Dwight Welch, NTEU Executive Vice-President (202 260-2261), and any instances where an EPA Schedule C employee is selected for an advertised classified civil service position.  We are keeping track of such employment selection practices.

Here’s a quote from Selwyn Cox, AFGE 3331 Vice President for Civil Rights and co-founder of EPA VARD.  “The First Amendment protects a person’s right to be a bigot if they chose to be.  However, when you come to work for the Federal Government, you need to check your sheet at the door.”

            NTEU Chapter Presidents and Benefits Coordinators were informed that a representative from MetLife Insurance has contacted some NTEU members, implied the existence of a business association between NTEU and MetLife, and asked members a number of questions, many of a personal nature.  NTEU offers various insurance programs as a “members-only” benefit, but a business association between NTEU and MetLife does not exist, and the insurance companies that are endorsed by NTEU do not “cold call” members to sell their insurance.  Nor do they have a policy of asking personal questions, unless the member has already elected to participate in a member-only benefit.  Members of Chapter 280 who are contacted by MetLife should ask the caller to stop calling NTEU members and misrepresenting their relationship with NTEU.  Refer  the caller to Tamara Schultz, NTEU’s Benefits Coordinator at the NTEU National Office,  (202) 783-4444 .

            NTEU was successful in getting federal employees a 4.6% pay raise this year, after a raise of only 3.6% was offered by the administration.  This was possible because NTEU cultivates friends in the Congress, supporting those who support us and opposing those who do not support us.  NTEU tracks developments on Capitol Hill with a full-time legislative staff.

            FEVER is NTEU’s Federal Employees Voter Education and Registration fund.  National will match Chapter contributions to this fund. Contributions are voluntary and members may opt out of the fund altogether.  FEVER contributions go to political party and grassroots organizations to increase voter participation; they cannot be made to individual candidates for federal office.

            TEPAC is the more traditional Treasury Employees Political Action Committee.  It also is voluntary.  Federal employees have noticed that their pay is not keeping pace with the private sector, despite FEPCA, the law making pay comparability mandatory.  Federal employees notice the government’s coolness toward restraining soaring health insurance premiums.  Federal employees notice that the Congress has never been so closely divided, with the Republicans holding a four-seat majority in the House and the Democrats holding a one-seat majority in the Senate.  The times cry out for political education and political action.  This is not a good time for Federal employees to be spectators.

            The second session of the 107^th Congress has begun and NTEU needs your help to educate Members of Congress about issues that affect Federal employees.  Take the time to find out what bills NTEU is tracking.  Go to the Internet and the NTEU home page at www.nteu.org.  Proceed to the Union Office, scroll down to Legislative Issues, click on Pending Legislation, and enter your NTEU Member number.  Check it out. 

The No Fear Bill (HR-169) is a bill, initially sponsored by Rep. F. James Sensenbrenner (R-WI) and Rep. Sheila Jackson-Lee (D-TX), which would bring a measure of accountability to government agencies.  This accountability would be brought about by requiring the Agencies to pay for EEO and Whistle-Blower suits rather than have it come out of a Dept. of Justice slush fund and make Agency heads account for these expenditures before Congress.  The Bill originally scheduled for a vote on 9/11, passed the House two weeks later by a historic 420-0 vote, unprecedented for a Civil Rights Bill.

Since this time, the Bill as S-201 has been languishing on the desk of Senator Joseph Lieberman, Chair of the Senate Government Affairs Committee.  The purpose of the March 5, 2002 Rally and Freedom Ride was to get the Senator in gear.  Previously he refused to meet with NO FEAR Coalition advocates led by our own Dr. Marsha Coleman-Adebayo.  Instead they were put off by arrogant staffers.

Guest speakers at the rally in addition to Reverend Sharpton, included former D.C. Delegate Walter Fauntroy, WOL talk show host Joe Madison, with a special surprise visit from long time activist Dick Gregory.  Despite the coldest evening temperatures since the year 2000, and a biting breeze that felt like it had been blowing across a glacier first, hundreds of enthusiastic employee activists from agencies across DC attended the rally, despite the cold and despite the competition with Lobby Week. 

After the rally, employees boarded two large tour buses and a couple of vans and headed down to the Senate office buildings.  The trip was very upbeat with Freedom Riders signing songs of freedom the entire way.  At the building Al Sharpton, along with Dr. Marsha Coleman-Adebayo and a representative each from several other agencies went up to see Senator Lieberman.  Meanwhile, in the lobby, dozens of other Freedom Riders prayed for the success of the meeting.  With media cameras flashing, Senator Lieberman shook Reverend Sharpton’s hand and promised the bill would be out of committee by Passover.  While I was not an eye witness, the returning representatives all recounted how Dr. Coleman-Adebayo was a major player in this meeting.

Our only weapon against the management terrorists is the truth, the light of day.  We must smoke these terrorists out of their holes and subject them to the light of day.  We must also expose the political appointees who give aid, protection and comfort to these management terrorists.  Of the letters to the editor for last month’s edition, one of the prime concerns was that we did not name enough names of the evil doers.  Another reader suggested that the Union publish a dirty dozen list of EPA’s worst managers.  Please submit your nominations to Editor Seth Low or to Executive Vice President Dwight Welch.

As Vice President for Civil Rights, I have filed a number of grievances recently, where managers have been accused of violating the Civil Rights of employees.  As part of the relief requested, I have called for investigations of the alleged management violators.  Since we were calling for  investigations of the alleged abusers, we followed the Collective Bargaining Agreement and filed with the lowest level management official capable of granting the relief sought.  We filed higher up in the chain of command, since we felt that the first level supervisors in these various cases were  unable to do objective investigations of their own activities. Unfortunately, we received a unilateral decision, from Mr. Steve Sharfstein, Director of Labor Relations, that, indeed, the accused managers were capable of granting the relief sought including investigating their own activities!  Quoting Stewart Speck, of Mr. Sharfstein’s staff: “The union's argument is wide of the mark. If a supervisor charged with engaging in discriminatory  or other inappropriate behavior recognizes that such is in fact the case, the supervisor can clearly cease engaging in such behavior, thereby granting the relief sought.”  Now I’ve been told I’m a pretty persuasive writer, however, even on my best of days, I would hardly expect my arguments on behalf of grievants to be SOOO persuasive that they would exclaim, “Hallelujah, after being a bigot for decades, I have now suddenly seen the error of my ways.”  Hardly.  The nature of bigotry is ignorance and ignorant people, by design, don’t have such epiphanies readily.

Well, surprise, surprise, the results of the Step 1 grievances found the alleged discriminators innocent of any discrimination. So I decided to file a complaint to the Administrator under the Zero Tolerance for Discrimination policy complaining about the corrupted process which allowed the accused a self investigation. 

I received the following reply from Daiva Balkus:

“Your email of November 28, 2001 to Governor Whitman has been forwarded to the Office of Human Resources and Organizational Services for a reply...”

 “It is...my understanding that the issue you raise in your email was also raised in Step 2 of the grievance and is being addressed in that process.  Since the issue raises a question of contract interpretation and (the) grievance process has been invoked, it would be inappropriate to attempt resolution of this issue outside of that forum.”

“However, I want to assure you that Governor Whitman and Agency management are concerned with the issues of alleged discrimination.  Through mandatory training of managers, increased management accountability and other appropriate steps, we are sending a clear message that the zero tolerance policy is a top priority.”

It is such a top priority, that a corrupted process goes uninvestigated?  “Management accountability” is allowing managers investigate complaints against themselves?  The activities of the very office I am complaining about as being corrupted, OHROS, gets to respond to my complaint to the Administrator.  The message sent is, indeed, a clear one:  not only will discrimination be tolerated unchecked, but continuing support is being given to the corruption of the complaint process.  Since when does an accused wrong-doer get to investigate themselves?  Since when does the representation for the accused get to act as judge in making this decision?  How little does Administrator Whitman care about her employees if her office cannot intervene in this very basic civil rights abridgement?  Should the policy be renamed, “Zero Tolerance for Discrimination Unless We Can Find a Technicality With Which to Dismiss?”

Late Breaking News: Under FOIA I requested the yellow concurrence copy of the above Daiva Balkus letter.  Typical of our corrupt system I received no response.  I ran into Ms. Balkus on Friday March 8, while waiting for a meeting with OARM AA Morris X. Winn.  I asked her about the copy and she claimed no one had asked her for it.  She wanted to know why I wanted the “yellow” and I replied “to see who wrote it.”  She confirmed that it was written by Steve Sharfstein, thus confirming my suspicions.  Again we have an accused manager investigating himself and of course being innocent.

Mr. Winn, at our meeting, agreed that submitting grievances against wrong-doing was “a poor process” and promised to do something about it.  We will see.  Our meeting was basically a positive one overall and I will report it in the next issue as I am now past deadline.

Thus far, this Union has filed three complaints under the Zero Tolerance Policy for Discrimination.  Thus far, all three have been rejected without investigation.  This sends out a “clear message” indeed, unfortunately one contrary to the spin which the Administrator’s Office would like to have you believe.  We will do more exposes about the hoax that this policy has turned out to be, but in the meantime, if you have filed under the Zero Tolerance Policy, we would like to know about it.  If you would like to file under the Policy and want some advice as to how to do it, please contact me, Dwight Welch, at 202-260-2261.  We are tracking these complaints and after a year will give a summary of our investigations.

In the past, we have often advised members not to file an EEO complaint, but rather to file a grievance instead.  The reasons given for this advice were that the EEO process is corrupted and designed to protect the Agency rather than to objectively investigate discrimination, and the EEO process could take years, while a grievance could be pushed to arbitration, if necessary, within months.  In light of the course pursued by Labor Relations in recent years, the Chief Steward and I are considering a new strategy.  The major problem with the grievance procedure is that the Labor Relations Staff has either been instructed, or have all (with a couple exceptions) taken it upon themselves to deliberately refuse to engage in interest based negotiations, but rather to sabotage the process with out of date, hard line position bargaining, trying to dismiss the complaint on technicalities, and otherwise insure that no objective consideration to a case be given.  Even in cases where management is reasonable, once Labor Relations gets involved, settlements seemingly within grasp now suddenly go out the window.  Cooperation turns to confrontation, trust is eroded, and one would be have to be positively stupid to not realize that one has been scammed.  As I mentioned in the previous issue, the Labor Relations staff now outnumbers the Headquarters full time Union officials by two to one.  A far cry from when only a few LR people resolved problems in a problem solving manner rather than to purposefully complicate often simple issues with legal gobbly-gook.

So how do we survive these corrupted systems (EEO/LR)?  The answer is to bring our complaints outside the Agency.  To this end the Union is investigating using the Office of Special Counsel (OSC).  Although these type of cases will be a lot more work, with the OSC, investigations are conducted by outside investigators, thus minimizing the fixed results engineered by Labor Relations.  Further, the OSC has the power to administer disciplinary action and has done so in the past.  This will hopefully prevent, as with the Coleman-Adebayo v Browner case, abusive managers being rewarded as with Christine Whitman’s unfortunate actions, instead of being disciplined as wrong doers should be.

Once upon a time, the OSC almost always found in favor of Agencies.  Things have changed, however, with the appointment of Elaine Kaplan, former General Counsel for NTEU National, by President Clinton.  Through the OSC we may actually have a chance at some fair resolutions.

This could be an improvement over the EEO/grievance procedures.  Currently, managers can abuse employees without fear of accountability.  In the worst case scenario (from the abusive manager’s point of view), the worst that will happen is that the employee will be restored, but even if the employee prevails in their complaint, the manager knows nothing will happen to them except for maybe a promotion, award, or praise from the Administrator.  In the best case scenario (best for an abusive manager, worst for the employee), the employee will give up and the manager may accomplish his/her illegal firing, or if this has already occurred, make it stick.  Under an OSC scenario, managers would have to account to an outside authority, not their cronies, and not be able to investigate themselves.  Under an OSC scenario, we might even possibly experience true management accountability: a manager actually being fired for wrong- doing.  In any event, managers may now want to think twice before they abuse people knowing that neither their friends nor Mr. Sharfstein can guarantee them immunity from justice.

In the January Fishbowl, NTEU introduced the U.S. Office of Special Counsel as an interesting management accountability enforcement option to address wrongful employment actions against EPA employees.  Based on the overwhelming response to that article, we are providing additional information regarding the role, jurisdiction and responsibilities of that independent government office. 

NTEU believes in the importance of having an independent watch dog agency such as the Special Counsel to protect the rights of federal employees.

On May 8, 1998, Elaine Kaplan was sworn in to serve a five-year term as Special Counsel of the U.S. Office of Special Counsel (OSC).   Prior to her appoint as Special Counsel, Ms. Kaplan served as Deputy General Counsel of the National Treasury Employees Union, where she represented the interests of 150,000 employees in the areas of civil liberties, administrative law, racial and sexual discrimination, and labor law.  During her thirteen years at NTEU, she briefed and argued dozens of cases at all levels of the federal courts on behalf of the union and the federal employees it represents. Many of the cases in which she participated resulted in important precedent-setting decisions, including among others, National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)(the first Supreme Court decision addressing Fourth Amendment implications of urinalysis drug-testing in the public workforce) and National Treasury Employees Union v. United States, 115 S.Ct. 1003 (1995)(which struck down on First Amendment grounds the statutory “honoraria ban”as applied to federal employees).

Since taking office, Special Counsel Kaplan has initiated an aggressive educational program for the federal workforce regarding OSC.  A significant obstacle to OSC’s ability to safeguard the merit system is the widespread ignorance within the federal workforce of OSC and the laws it enforces. This ignorance persists, notwithstanding Congress’ 1994 statutory mandate that federal agencies, in consultation with OSC, inform their employees of their rights and remedies. 

To address that problem, she established a formal Outreach Program to provide education and training.  Anyone can request, through the OSC Training Request forms, that OSC provide a speaker to present such training to your office or organization.  Such training is provided at no cost to you or your organization.  Training request forms can be obtained at www.osc.gov.

OSC’s mission is to protect federal employees and applicants, especially whistleblowers, from prohibited employment practices; to promote compliance by government employees with legal restrictions on political activity; and to facilitate disclosures of wrongdoing in the federal government.  The OSC carries out this mission by:

Listed below are a few of the actions OSC has taken.  Federal employees, including members of the Senior Executive Service, have filed complaints with the OSC.  Many of these complaints were successfully prosecuted by OSC.  Even the Merit System Protection Board itself is not immune from action by the OSC.  The second case cited below, actually involved the Merit System Protection Board for retaliation against the Chief Administrative Judge of the Atlanta Regional Office for challenging a performance rating.   Remedies included reasonable attorney fees incurred by the complainant.

·        On February 13, 2002, OSC announced the settlement of a prohibited personnel practice complaint filed by a Maintenance Coordinator for the Justice Prisoner and Alien Transportation System (JPATS), U.S. Marshals Service in Oklahoma City, Oklahoma. The complainant alleged that JPATS’ officials retaliated against him for disclosing to fellow employees,  management officials, and contracting officials, his reasonable belief that aircraft maintenance regulations and the JPATS general maintenance manual requirements were being violated.  Shortly after he made these disclosures, JPATS removed the complainant from his supervisory position during his probationary period, thereby lowering his grade level from a GS-13 to a GS-12, and withdrew job duties from him.

During the investigation, OSC concluded that there were reasonable grounds to believe that the complainant’s demotion violated the Whistleblower Protection Act. That Act makes it unlawful for an agency to take a personnel action against an employee because he has disclosed what he reasonably believes is evidence of violations of law, rule, or regulation. When OSC advised JPATS of its conclusion, JPATS agreed to provide the complainant with corrective action.

Under the settlement agreement, without admitting liability, JPATS agreed to appoint the complainant to a level GS-13 Quality Assurance Specialist position, to restore his Contracting Officer Technical Representative duties, and to pay reasonable attorney fees. In exchange, the complainant agreed to withdraw his OSC complaint.

·        On January 3, 2002,  OSC announced the favorable settlement of a prohibited personnel practice complaint filed by Mr. Thomas J. Lanphear, Director and Chief Administrative Judge of the Atlanta Regional Office of the U.S. Merit Systems Protection Board (MSPB). Mr. Lanphear had filed a complaint with OSC, alleging that senior MSPB officials, who are no longer with the agency, retaliated against him for challenging the rating that he had received on a 1997 performance evaluation.

Mr. Lanphear alleged that after he filed an appeal challenging his 1997 evaluation, his supervisors orchestrated a series of actions and investigations against him. Mr. Lanphear alleged that the actions were designed to justify the deficient performance rating and to block his recertification as a member of the Senior Executive Service. These actions included re-issuing his 1997 performance appraisal and changing his rating to “Unsatisfactory” and issuing a 1998 appraisal with an  “Unsatisfactory” rating.

OSC conducted an investigation into Mr. Lanphear’s allegations. On the basis of OSC’s

investigation, the Special Counsel determined that there were reasonable grounds to believe that Mr. Lanphear’s supervisor had retaliated against him because he challenged the rating on his performance evaluation. OSC provided a draft prohibited personnel practice report to former MSPB Chairman Beth Slavet and requested that the MSPB voluntarily provide corrective action to Mr. Lanphear.

In response to OSC’s draft report and under the terms of the settlement agreement, the MSPB agreed to provide full relief to Mr. Lanphear without admitting liability. Relief included rescinding Mr. Lanphear’s 1997 and 1998 performance evaluations and issuing “Outstanding” ratings for 1997, 1998, and 1999, which resulted in Mr. Lanphear being recertified to the SES. Relief also included the payment of performance awards associated with the revised performance appraisals and attorney’s fees.

The MSPB is the tribunal before which OSC prosecutes prohibited personnel practice cases. All of the underlying events took place under an administration prior to that of Chairman Slavet. Special Counsel Elaine Kaplan thanked the MSPB “for its cooperation in negotiating a full and fair settlement of Mr. Lanphear’s complaint.” Jessica L. Parks of Kator, Parks & Weiser, counsel for Mr. Lanphear, stated, “The case exemplifies the importance of having an independent watch dog agency such as the Special Counsel to protect the rights of federal employees.”

It is a prohibited personnel practice under 5 U.S.C. § 2302(b)(9) to retaliate against an employee for exercising any appeal, complaint, or grievance right granted by any law, rule, or regulation. The act of rating an employee’s performance negatively because the employee exercised such a right constitutes a prohibited personnel practice.

·        OSC investigated an employee’s allegation that he was denied a promotion and that his tour of duty was not extended because of his disclosure that his first-level supervisor had apparently falsified her federal employment application (SF-171).  He discovered this information when he was researching his supervisor’s Official Personnel File, at her request, in order to prepare nomination papers for an award.  The employee informed his second-level supervisor and an investigation ensued that discovered the first-level supervisor had falsified her SF-171.  The first-level supervisor resigned.  Her position was subsequently filled, and the employee, who had applied, was not selected.  Several years later, the selecting official informed the employee that he had been pressured by the agency not to promote the employee because of his disclosure.  Following OSC’s request for corrective action, the agency agreed to promote the employee retroactively and give him the corresponding performance awards and quality step increases.  

·        OSC facilitated a comprehensive settlement between the Department of Energy (DOE) and eighteen special agent nuclear material couriers of the Oak Ridge, Tennessee section of the DOE’s Transportation Safety Division, in response to retaliation claims.  The couriers alleged that they had suffered whistleblower retaliation in violation of 5 USC 2302(b)(8) for engaging in various protected activities, such as providing information to management and outside review teams concerning potential dangerous radiation exposure and security risks arising out of driver fatigue.  The OSC worked with agency counsel and the complainants’ attorneys to fashion a creative and responsive settlement agreement. Among other things, the settlement included $600,000.00 in back pay and attorneys; fees and the agency’s agreement to engage an outside mediator through which the couriers could disclose to high-level agency officials issues related to safety and security in the agency’s Transportation Safety Division.

·        OSC petitioned the MSPB to stay the termination of a Computer Specialist at the Department of Veterans Affairs Medical Center (VAMC).  OSC requested the Board to order the stay after the VAMC denied OSC’s request for an informal stay.  OSC made both its informal stay request to the agency and its subsequent stay petition to the Board after determining that its ongoing investigation provided reasonable grounds to conclude that the complainant’s protected activity of filing two union grievances was a significant factor in the VAMC’s decision to terminate his employment.  The Board granted the stay so that OSC was able to complete its investigation and legal review of the evidence obtained.

Information About Filing Allegations of

Prohibited Personnel Practices or Other Prohibited Activities with OSC

Election of Remedies for Employees Covered by a Collective Bargaining Agreement

Employees covered by a collective bargaining agreement must choose one of three possible avenues to purse their prohibited personnel practice complaint.  These options are: (a) a complaint to OSC; (b) an appeal to the Merit System Protection Board (MSPB) (if the action is appealable under law), or (c) a grievance under the collective bargaining agreement.  If you have already filed an appeal concerning your prohibited personnel practice allegations with the MSPB, or a grievance concerning those allegations under a collective bargaining agreement, OSC lacks jurisdiction over your complaint and cannot investigate it.  

Although OSC is authorized to investigate discrimination based upon race, color, religion, gender, national origin, age, or handicapping condition, as well as reprisal for filing an EEO complaint, OSC generally defers such allegations to agency procedures established under regulations of the Equal Employment Opportunity Commission (EEOC).  Filing a compliant with OSC will not relieve you of the obligation to file a complaint with the agency’s EEO office within the time prescribed by EEOC regulations.

For more detailed information on the Office of Special Counsel, OSC has available on its web site a twenty-one page pamphlet titled, “The Role of the U.S. Office of Special Counsel”.  Complaint forms are also available at that web site at www.osc.gov.  Copies of these two documents will be placed on the NTEU 280 web site at www.nteu280.org.  Please let NTEU know if you are considering filing an OSC complaint.  Dwight Welch, NTEU 280 Vice President for Civil Rights can be reached at (202) 260-2261. 

“There will always remain a domain of choice for public officials that lies beyond the proper capacity of science to resolve, just as there are vast domains of scientific inquiry that ought to remain beyond the ability of politics to manipulate.”

EPA’s SES Mobility Program progresses at a Snails Pace.  Is top policy management being overly considerate of incumbents?  After all, one wouldn’t want to cause any discomfort or inconvenience to the outstanding members of the “Corps Elite.” Let’s thank them very much for collecting their six figure salaries and bonuses, give them gold medals, and proceed to rebuild the agencies reputation and morale with some new blood; hopefully public servants dedicated to quality experienced leadership and priority measurable accomplishments.  NTEU 280 looks forward to the day when we have fewer grievances and more promotions.

As part of its environmental management review, DOE is reassigning approximately 40 percent of the 70 senior executives in the environmental management (EM) program.  “The purpose of these reassignments is to better leverage the unique talents of these executives, force better integration between field and headquarters of the real, on-the- ground challenges confronting the program, and to stimulate new thinking and creative solutions to cleanup challenges.”  The 30 percent reduction in headquarters executives is being achieved by executives leaving the SES, reassignment into senior advisor positions, and moves to other field or headquarters organizations.  Maybe EPA can learn to assert  itself more aggressively from the actions taken by DOE, but don’t hold your breathe.