Last week, the Washington Post reported that the Secretary of the Department of Veterans Affairs (VA) had, in essence, solicited a list of the executives and managers that the American Federation of Government Employees (AFGE), Local 17, (the union) thought should be fired. According to the article, Secretary Robert McDonald met with the union and told its representatives union he needed their help in identifying problem Executives and managers.
If true, to the best of my knowledge, this is a Federal sector labor relations first. The top manager of a cabinet level Agency is asking its union which managers should be canned. So, is the article accurate?
Basically it quotes the union president quoting the Secretary. The Article says the union embarked on a “several-month internal review” and came up with a 39 page report which it says it gave the Secretary. According to the Post, a VA spokeswoman wouldn’t confirm that the Secretary got the report.
Was the union “internal review” conducted and the resulting report developed using official time of the union officials involved?
The statute allows official time to be negotiated for representational purposes only and I’m pretty sure the VA agreement with AFGE doesn’t include investigating managers an approved use of such time. Now, I suppose the Secretary, if he authorized the “review” and the creation of a report could be said to have authorized official time but wouldn’t he be doing it without coverage by the collective bargaining agreement. Is that right?
Where did the union get its training in the conduct of an “internal review”? Did it take sworn statements and on whose authority? Did it interview the executives and managers to prepare a balanced report? Were the employees who gave evidence on duty time or on their own time? If on duty time, who approved them to stop work to do this? It would seem that in such a serious manner a scrupulous job of documentation would be essential. Am I right about that?
VA has one of the best guides to conducting administration investigations (or used to). It calls for very specific steps to insure that the due process of employees is a primary concern. It also has rigorous standards of evidence and addresses what a report should look like. Did the union follow that guide?
Where was the Inspector General for all this?
The IGs I’ve been exposed to might view this as interference if they were conducting an investigation into statutory violations or perhaps criminal misconduct. Is VA’s IG any different?
Some More Questions
The executives and managers named, if indeed they are, in the union’s report have substantial due process and other protections under the law. Unions can file grievances and unfair labor practices under Federal statute but investigation of a Federal employee is not one of the rights the labor statute addresses. Unions can represent employees in a wide range of appeals but direct involvement in an Agency function is a new concept. Of course, I guess it could be argued that if one followed the spirit of “pre-decisional involvement” addressed in an Obama Executive Order, the union gets to help make a management decision on who to fire. Is that possible?
It’s sometimes hard to get a handle on what, exactly, a union is. It’s not a governmental entity, for sure. The Internal Revenue Service calls it a 501 C (8) and says in a description of “IRC 501(c)(8) Fraternal Beneficiary Societies”:
In its current form, IRC 501(c)(8) describes fraternal beneficiary societies, orders, or associations operating under the lodge system (or for the exclusive benefit of the members of a fraternity itself operating under the lodge system), and providing for the payment of life, sick, accident, or other benefits to the members of such society, order, or association, or their dependents.
AFGE is a member of the AFL-CIO which is an association of trade and industrial unions but that doesn’t help understand, exactly what it is. But it is a private sector entity when all is said, correct?
I included the above because I’m wondering what law would authorize a private sector entity to use government time and resources to investigate Federal employees. I’m also wondering whether, if a manager is named in the alleged report, what legal options they might have. I believe that politicians are public figures and that you must go a ways to libel or slander them. But is a career SES or other line manager retain the right to initiate legal action if some private sector entity accuses them of misconduct that could affect their livelihood, reputation, career prospects, income or other property right?
Lots of questions raised by all this that I don’t have answers for. I sure hope someone does. Don’t you?
Since I didn’t give any opinions above, do I have to give my usual disclaimer?