Education Says AFGE Waived Rights, Implements Collective Bargaining Agreement

When a union does not respond to an agency proposal after a time, can the agency implement it? Broad action by the Education Department may answer the question.

In what could be a major, precedent setting case, the Department of Education (the Agency) directed the implementation of a complete Collective Bargaining Agreement (CBA) with National Council of Education Locals, Council No. 252, American Federation of Government Employees, AFL-CIO (AFGE).

In a Press Release, the Agency was quoted as saying:

The union spent more than a year dragging its feet on ground rules negotiations without reaching any agreement, and then failed to respond in timely manner to negotiate over the contract proposed by the Department.  This contract complies with all statutory requirements and maintains union members’ rights under the Civil Service Protections Act and the Federal Labor Relations Act.

AFGE also issued a press release on March 14, stating:

Education aims to bust labor union by forcing new terms on AFGE

Union’s ability to represent workers undermined by Secretary DeVos’ team

WASHINGTON – The Department of Education, having made headlines over the past year for its attacks on both teachers and students, has now launched its newest attack directly at public employees. In a violation of the law, Department of Education implemented a management edict that aims to kill the union and deny workers their legal right to representation, the American Federation of Government Employees said today.

After months of anti-union proposals and hostile behavior at the bargaining table, Department of Education management told AFGE Council 252 President Claudette Young on Friday, March 9, that it would not negotiate and would instead implement its own terms. The so-called “collective bargaining agreement” referred to by management is an illegal management edict that guts employee rights, including those addressing workplace health and safety, telework, and alternative work schedules. 

“AFGE did not agree to these unilateral terms,” Young said. “AFGE is, and has been, eager to return to the table to negotiate a fair and just contract, which all employees deserve.”

Education Secretary Betsy DeVos’ vendetta on public education has now taken stage within the Department of Education by gutting employees’ right to representation in the workplace and interfering with AFGE’s legal obligation to represent employees by taking away representational time for union representatives. Education’s management edict subverts the statutory process established by Congress 40 years ago to facilitate the representation of all employees covered by a collective bargaining agreement, regardless of their decision to join or not join the union.

AFGE Council 252 represents 2,500 Department of Education employees across the country, all of whom will be adversely impacted by this new anti-union decree. Joining the union is voluntary for workers, yet AFGE and other federal unions are required by law to represent everyone covered by the union contract – even if they choose not to join. For this reason, Congress provided representational time so that the union can carry out its legal duty of fair representation to all those who are covered by the contract, including those who choose not to pay dues. Removing access to this time is like asking the fire department to operate without firetrucks or a firehose. 

DeVos’s new edict requires shop stewards and local union officers to use leave without pay to carry out their statutory representational duties – which include things like meeting with employees and managers to resolve workplace disputes, addressing issues of discrimination and retaliation, and effecting improvements in work processes. This edict is counterproductive and wrong. It’s bad for it’s bad for public employees, and it’s bad for public education.

The Agency’s agreement, covering eight articles in 40 pages, addresses almost exclusively, institutional rights of each party and does not address employee working conditions.

Union’s Specific Claims

AFGE’s Press Release includes a link to what it says are the eight “biggest violations” in the Agency’s implemented CBA.

Biggest Violations in DeVos’, Dept. of Ed. Management’s Edict

The Department of Education has illegally trashed the collective bargaining agreement negotiated between AFGE and prior management, instead replacing it with a set of rules and instructions that gut employee and union rights. Here are the biggest violations: 

1. The “contract” is illegal and has not been approved by the union. Education Secretary Betsy DeVos and her management team implemented this illegal document without the required bargaining and negotiation with American Federation of Government Employees Council 252, which represents the 2,500 covered employees. 

2. It strips workers of previously negotiated rights and protections. Provisions addressing workplace discrimination, performance appraisals, telework and alternative work schedules, workers’ compensation, child care, overtime, and employee training have all been deleted and replaced with nothing. 

3. It automatically kicks employees out of the union after a year. The illegal “contract” will require employees to file new paperwork every year to remain a union member – a blatant attempt to suppress membership and weaken the union. 

4. It prevents AFGE from providing fair representation to employees. The new “contract” severely restricts the use of representational time, which is the process established by Congress 40 years ago to ensure that all employees entitled to union representation receive it – regardless of whether they choose to join the union. 

5. It restricts local representatives from serving employees. The previous labor-management agreement provided for the reasonable use of representational time by 75 stewards, plus the leadership from each of AFGE’s 10 Education locals and Council 252. The new document makes no such provision and instead provides for just 10 representatives to use unpaid leave to carry out their representational duties. 

6. It forces employees to take unpaid leave to conduct their representational duties. Employees will have to use leave without pay to conduct representational work that should be covered under representational time – things like meeting with employees and managers to resolve workplace disputes, address issues of discrimination and retaliation, and effect improvements in the workplace that benefit all employees. 

7. It restricts the union from meeting with workers. The “contract” requires employees to get advance permission from their supervisor before carrying out their representational duties. 

8. It denies union representatives access to office space and equipment. The department is kicking union representatives out of their office space at Education’s Washington headquarters and 10 regional offices, requiring them to turn in all computers and cell phones and other office equipment assigned to the union, and deleting email addresses for AFGE locals representing the department’s workers.

Will the Agency Action Fly?

In a 1985 case (20 FLRA 403), the Federal Labor Relations Authority at that time ruled that a union’s failure to timely respond to an Agency notice, waived its right to bargain and the Agency was free to implement.

To be fair, the issue in that case as not as broad in scope and effect as the Agency’s action here, but the FLRA could adopt an Agency “laches” argument about which Black’s Law says, “The doctrine of laches is based on the maxim that ‘equity aids the vigilant and not those who slumber on their rights.'” As others might say, “ya snooze, ya lose.”

Apparently, if Education is right here, AFGE’s belief that one of its tried and true tactics i.e., delay is still as good as always, it might get surprised. I notice the union didn’t address the Agency’s claim of waiver by inaction but focused instead on complaining about how the Agency was union busting.

Harvard Law School professor Alan Dershowitz shares with his students a strategy for successfully defending cases. If the facts are on your side, Dershowitz says, pound the facts into the table. If the law is on your side, pound the law into the table. If neither the facts nor the law are on your side, pound the table. (From:

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.